Confronting legacies of colonization in Canadian criminal law

When the definition of a criminal act has been shown to be historically and culturally fluid, what does it mean to be accused of a crime? Is it possible to imagine a society that punishes fewer people but still responds appropriately to socially harmful acts?

As highly publicized, racialized acts of police violence bring unprecedented numbers of protestors to the streets, criminal law research has taken on a new relevance as individuals and institutions look for potential pathways toward a more just society.

Bridging the boundaries between sociology, criminology and law, George Pavlich brings an innovative and deeply ethical perspective to the crisis in the Canadian and international criminal justice system, illuminating the origins of the systemic inequities while providing insight into the challenges that lay ahead.

Pavlich, a cross-appointee in the Department of Sociology and the Faculty of Law, has been awarded the  Henry Marshall Tory Chair in recognition of his extraordinary record of scholarly research, teaching and educational leadership. The five-year renewable appointment, which he began on July 1, arrives as his Canada Research Chair in Social Theory, Culture and Law concludes.

“A lot of my work has been involved with understanding alternative forms of justice to criminal justice without discounting the importance of the rule of law,” says Pavlich.

As the principal investigator of a SSHRC Insight Grant entitled Governing Entry to Criminal Justice in Canada since 1870, Pavlich’s research has investigated how Indigenous legal systems were displaced as Dominion criminal law facilitated colonial settlement, and in the process laid foundations for the sizable criminal justice systems that confront us today.

“There is a recognition that the inadequacies of some forms of justice through law need to be complemented with other forms, and so I’ve looked at restorative justice,” explains Pavlich. “Gradually, I became aware that it wasn't a simple matter of criminal justice versus restorative justice, but rather that there were areas where we needed to understand justice as a whole.” 

Moving beyond the ‘simple matter’ of criminal versus restorative justice (explored in his book Governing Paradoxes of Restorative Justice) opened up new areas of research for Pavlich. Restorative justice seeks to avoid traditional punishments in favour of alternative measures involving both victims and perpetrators. However, according to Pavlich, the problem with effective alternative measures is that in order to gain political momentum, significant compromises may make these measures look precisely like the very thing they were trying to oppose.   

“Understanding power relationships gave me a way in, and that led me to ponder just how far restorative justice was an alternative to criminal justice.”

Pavlich explains that for centuries, industries developed to reduce crime have instead greatly expanded the scope of criminal justice, spawning massive and disproportionately racialized institutions of incarceration and large numbers of people who work for and benefit from the system.

“Criminalization has become a reflex action to an expanding range of what is perceived as wrongdoing,” says Pavlich. “And, of course, class, race, and gender play right into these perceptions. The basic position is that the expansion of the criminal justice industry could be reduced by looking at why we accuse and how we accuse. We need to justify when we accuse someone of a crime, not simply offer it as a reflex response. The advantage of that approach is that it allows you to think about alternative ways of governing what is designated as problematic behaviour.”

Pavlich argues that criminal accusation derives from categorization, and that it may be possible to change how we categorize, designating relatively few individuals as criminals and expanding criminal accusation to other areas.

He sees the “legal person” as one method by which a recalibration of criminal accusation from individualized to collective wrongdoing may be achieved. In law, he says, the legal person doesn't align with an individual. It can be a corporation, it can be a river, and it may be used to target social structures and social inequities.

“You could categorize inequality for example, rather than theft in some circumstances,” says Pavlich. “This means that if you categorize inequality, your governing response is not going to be to find an individual culpable and to punish that individual; rather one may ask how do we break down and reduce these inequalities? It’s not to say that certain actions shouldn’t be  criminalized, but that the focus long-term is to accuse the systems which enable acts like theft to happen, thereby opening up different pathways to govern them.”

A significant aspect of Pavlich’s research considers the decolonization of criminal law. It’s useful, he says, to go back in time to consider how settler colonial ways privilege and marginalize certain groups of people in a social hierarchy. The Northwest Mounted Police is a good example, he says, of how people moved into a context that was already ordered, already settled and already had its various forms of law and Indigenous legalities in place, and imposed itself as if there was no law. He is also looking at the role of Justices of the Peace because, as he notes, they very often controlled what local definitions of law actually meant on the ground.

Growing up in apartheid South Africa, Pavlich was deeply affected by the suffering he witnessed, where everyone, he says, was expected to live according to absolutely artificial, but strongly policed divisions. Pavlich’s life's work, including his current research, has been informed by these questions of race, inequity and marginalization.

“You can't actually approach any of this without recognizing the ways in which race or racialized social hierarchies and divisions operate,” he says. “And necessarily, that means confronting settler colonialism head on,   recognizing that it is not a thing of the past, but that it is with us today.”

In his classrooms, Pavlich encourages students to read Treaty 6 alongside other contemporaneous critiques and statements. It is remarkable, he says, how few have read it or understand its implications and commitments. The complexity of examining Canada's criminal justice system and the legacies of colonialism through both a sociological and legal lens is a privilege, he says, and one that he doesn’t take for granted. 

“It was from this massive criminal justice entity that our province emerged,” explains Pavlich. “It has these components which I think have been lost to memory, and that need to come out as we start thinking about the place of indigenous law in current political horizons. I for one think that’s a very important story to tell. Perhaps not me telling that story of indigenous law, but at least being an ally to the process by which various Indigenous people might articulate that story.”