1.1 Crime in Context

If crime is the product of a society’s moral boundaries, how are we to understand crime in a complex, multicultural settler-state like Canada? Specifically, how can we understand crime in a place where significant differences exist between settler and Indigenous understandings regarding how to best respond to it?

Like everyone, my own views of crime were shaped by the society I grew up in. I was born in Mi’kmaqi, the traditional territory of the Mi’kmaw nation. My ancestors were English, French, and Irish settlers who brought with them their own systems of law and their own understanding of what counted as crime. The forceful imposition of a foreign legal system on the people of Mi’kmaqi was one of the reasons I call my ancestors settlers rather than immigrants; immigrants adapt to the Indigenous legal system of the place they relocate to, while settlers impose their own system on the colonised population (Carlson-Manathara, 2021).

Crime and law existed across what came to be known as Canada long before any Europeans migrated to its shores. It is impossible to capture in a short piece the richness and variety of Indigenous approaches to justice and law that have existed across this vast territory (Borrows, 2005), but as Monchalin (2016) tells us, some broad characteristics that can be observed, and these can be compared with some of the shared understandings observable in European criminal justice systems.

For one, Indigenous justice systems tend to be rooted in “respect, harmony, and the maintenance of balance” (Monchalin, 2016, p. 530). This does not mean they were historically soft on crime (McGuire, 2019); corporal punishment was not uncommon, and some nations imposed the death penalty. The orientation of Indigenous justice systems, however, is towards restitution rather than retribution (see 17.3 The Aims of Restorative Justice), with the goal being to restore harmony rather than inflict pain on the individual offender (Hansen, 2012; Paul, 1993). Contrary to the emphasis on carceral systems that Canada uses today, no Indigenous justice system practiced incarceration as a response to crime (Monchalin, 2016).

As Harold Johnson (2019) explains:

“The fundamental difference between how First Nations would maintain peace and good order and how Canada has administered it is that First Nations would apply principles of redemption, whereas Canada relies upon deterrence. We know that punishment as deterrence does not work to reduce criminal behaviour… Redemption, on the other hand, is focused on solving the problem and making things right again” (Johnson, 2019, p. 107).

Early European settlers were too naïve to see the methods for dealing with crime within Indigenous societies as complex justice systems, in part because they understood law as something written down and justice as a form of vengeance enacted upon individual perpetrators.

Today, the Canadian criminal justice system recognises that restitutive practices are often better suited to dealing effectively with crime, as can be seen in the case of restorative justice. Nevertheless, Canada still refuses to recognise sovereign Indigenous justice systems, a right spelled out in Article 5 of the United Nations Declaration of Rights of Indigenous Peoples [PDF] (United Nations, 2007).