On the incompatibility of ‘Western’ and Aboriginal views of Restorative Justice in Canada: a claim based on an understanding of the Cree justice

ABSTRACT

‘Restorative justice’ (RJ) has been a popular notion in Canada. A common belief has been that ‘‘western approaches’ to RJ are compatible with that of Canada’s Aboriginals. I hold a different position. I argue that the religious beliefs of Canada’s Aboriginals are basic to their understanding of RJ. As such, their view of RJ is essentially incompatible with western approaches, which are secular. Any similarity between the two is only an apparent one produced by the indiscriminate uses of similar terms such as ‘holistic’, ‘healing’ or ‘restoration’. I support my argument by providing an account of Canada’s largest Aboriginal group’s view of RJ: the Cree. I demonstrate that it is based on certain religious principles that are absent from western approaches to RJ. As such, it is fundamentally incompatible with secular western approaches to RJ in Canada. These religious principles, basically and broadly speaking, are shared by all Aboriginal groups in Canada.

KEYWORDS:

• Restorative Justice
• crime
• Aboriginal people
• Cree religion
• harmony
• health

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. Government of Canada, Department of Justice. Available at: https://www.justice.gc.ca/eng/cj-jp/rj-jr/index.html.

2. Government of Canada. (2017). Restorative justice: Getting fair outcomes for victims in Canada’s criminal justice system. Office of the Federal Ombudsman for Victims of Crime.

3. Ibid.

4. It is actually composed of four communities that are located about 150 miles northeast of Winnipeg, Manitoba: Manigotagan, Ahbaming, Seymourville, and Hollow Water First Nation where the program is based.

5. Principles and Guidelines for Restorative Justice Practice in Criminal Matters (2018). Government of Canada, Department of Justice. Available at: https://scics.ca/en/product-produit/principles-and-guidelines-for-restorative-justice-practice-in-criminal-matters-2018/.

6. The terms used for this have been ‘universal restoration’, ‘universal restitution’, and ‘universal reconciliation’.

7. The New Testament also has references to divine retribution, particularly in relation to heretics and those who do not heed the word of God.

8. In the article Christie had argued that crime was the ‘property’ of those who were directly involved in it. Therefore, they should be given the opportunity to resolve it and not officials of criminal justice system.

9. Mark Yantzi speaking in a vimeo video clip. Available at: CJI, https://cjiwr.com/the-elmira-case/.

10. Mirsky, L. (2004). Restorative justice practices of Native American, first nation and other indigenous people of North America: Part one. Available at: http://www.fp.enter.net/restorativepractices/natjust1.pdf.

11. Ermineskin Cree Nation. Available at: https://ermineskin.ca/restorative-justice/.

12. Statistics Canada, 2016, https://www.statcan.gc.ca/eng/start.

13. The term used in Canada in this context is ‘peoples’ to signify the variety of Aboriginal cultures.

14. Statistics Canada, Aboriginal Population Profile, 2016 Census https://www12.statcan.gc.ca/census-recensement/2016/dp-pd/abpopprof/index.cfm?Lang=E.

15. Statistics Canada, Aboriginal Population Profile, 2016 Census https://www12.statcan.gc.ca/census-recensement/2016/dp-pd/abpopprof/index.cfm?Lang=E.

16. The Canadian ENCYCLOPEDIA. https://www.thecanadianencyclopedia.ca/en/article/cree. Accessed 15 May 2021.

17. See the account provided by Chief Fine Day in My Cree People (published by Good Medicine Book, 1973, volume No. 9), p. 42.

18. The United Nations, UN news, https://news.un.org/en/story/2021/06/1093412.

19. ‘Canada: 751 unmarked graves found at residential school’, BBC News,

https://www.bbc.com/news/world-us-Canada-57592243.

20. Office of the Correctional Investigator is an agency of Government of Canada. As mandated by the Corrections and Conditional Release Act (1992), he or she acts as an Ombudsman for federal offenders. As such, the main function of the Office is to investigate and resolve offenders’ complaints. It is also responsible for reviewing and making recommendations about the federal correctional service’s policies and procedures associated with offenders’ complaints. This is to ensure that systemic problems are identified and addressed. For more information see the website of the Office at https://www.oci-bec.gc.ca/index-eng.aspx.

21. The Guardian, (22 January 2020), https://www.theguardian.com/world/2020/jan/22/one-third-Canada-prisoners-indigenous-report.

22. United Nations, Human Rights Committee, ‘Concluding Observations on the Sixth Periodic Report of Canada (2015)’. Available at: https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhskswUHe1nBHTSwwEsgdxQHJBoKwgsS0jmHCTV%2FFsa7OKzz9yna94OOqLeAavwpMzCD5oTanJ2C2rbU%2F0kxdos%2BXCyn4OFm3xDYg3CouE4uXS.

23. The term most often used by the Cree in recent years has been ‘spiritual’ (as shortly described) not ‘religious’. However, the latter term is a convenient conventional point of reference.

24. The Aboriginal scholarly community, to the best of my knowledge, has not done this either. Even so, these inconsistencies are immaterial to the argument of this paper. There has been consistent agreement by the Cree on fundamental principles of their religion that are of concern to this paper. I will try to provide as coherent an account of these principles as I can insofar as it suits the purpose and length-limitations of this paper. It must be noted that the Cree religion has been subject to some erosion among the Cree. In spite of this, I will use the present tense in describing it because I do not want to create the denigrating impression that it is a relic of the past. I would like also to emphasize that I am not in any way or shape contending in this paper that the Aboriginal methods of RJ, or their underlying values, are superior to Western methods and values (and vice versa). My concern is only their (in)compatibility.

25. The gender of this deity has remained controversial. Some scholars have claimed that it is a male deity.

26. Russel Willier (Cree Shaman). ‘The Cree’s concept of death’. 27 May 2017. Available at: https://www.youtube.com/watch?v=DdYJU0Hoh9o.

27. The Four Directions are North, West, East, and South. North = spiritual, West = mental, East = emotional, South = physical.

28. It seems that disturbance of the balance can only be negative and result in excess of evil. There can be no excess of good.

29. pawaganak or okisikusak, which mean ‘little sky-beings’.

30. There are five different types of spirits: elemental, animal, plant, ancestral, and rock. The main elemental spirits (Thunder, Wind, Earth, and Sun) are more powerful than the others.

31. Females seem to be excluded from this process in some Aboriginal tribes.

32. The ease with which this process took place has been disputed. For example, Dion (1979) has indicated that such communication was a privilege that only few achieved.

33. Referred to by some as ‘Shaman’.

34. The Cree believe that long ago, when they still could communicate with animals, they made an agreement with them. Animals agreed that they would give their lives to them if they, in turn, agreed to reciprocate by respecting them and looking after them (Hansen, 2019).

35. For example, community members often have a hand in raising each other’s children as nurturers, mentors, guardians, etc.

36. These have not been practiced for over a century.

37. By the standards of modern Western ethics this is a type of ‘ethical intersubjectivity’, which is believed by those involved in criminal justice processes to empower victims of crime (Stumm, 2014, p. 385).

Additional information

Notes on contributors

Reza Barmaki

Reza Barmaki teaches criminological theory and criminal justice at York University.