From left: Professors George Pavlich and Annalise Acorn, Assistant Professor Hadley Friedland
Modern criminal justice systems have long been predicated on the notion of individual culpability, specifically that individual criminals should be punished in specific ways according to the nature of their misdeeds. However, a growing understanding of the complex social, economic, and cultural forces that inform human action, as well as of the shortcomings of established judicial systems, have led many to ask if punishing individual offenders is indeed always the best way to respond to socially harmful acts.
UAlberta Law Professor George Pavlich is among the leading voices in this debate over social alternatives to crime and punishment. As the current Canada Research Chair in Social Theory, Culture and Law, Pavlich conducts social, cultural, and political analyses of longstanding policies that identify, define, punish, and rehabilitate criminals, while questioning Canada's continued attachment to traditional notions of crime and punishment.
In a May 16, 2017 seminar entitled "Restorative Ideas, Indigenous Justice, Judicial Practice", Pavlich presented some of his research together with fellow UAlberta Law faculty members Professor Annalise Acorn and Assistant Professor Hadley Friedland as well as Criminology Professor Ivo Aertsen from the University of Leuven in Belgium and Marshall Hopkins of the Edmonton law firm Moreau and Company.
Traditional remedies for modern problems
The debate over alternatives to traditional modes of criminal justice in Canada has largely focused on alleviating the historical overrepresentation of Indigenous people in the country's prison system. In the landmark R v Gladue case of 1999 (and reaffirmed in R vs Ipeelee in 2012), the Supreme Court of Canada decreed that courts should to take into account the "circumstances of Aboriginal offenders" when handing down sentences, and, wherever possible, opt for alternatives to incarceration.
Nearly two decades have now passed since the Gladue Decision, and Indigenous overrepresentation in Canadian prisons continues largely unabated. Most believe that while the Gladue principles are sound, a lack of viable alternatives to incarceration continue to hinder their application.
Dr. Friedland's talk focused on the need to better implement Indigenous legal traditions and practices into the judicial system. In her view, the existing Gladue mechanisms, while providing a valuable lens into the historical factors behind Indigenous over-incarceration, the system itself requires updating by way of harmonizing and integrating Indigenous legal principles and concepts, as mandated in Call to Action #42 of the Truth and Reconciliation Commission's Final Report.
Professor Acorn and Marshall Hopkins discussed the current legal and epistemological barriers preventing a true integration between Indigenous and Canadian law. Combining theoretical and practical perspectives, Acorn and Hopkins highlighted the fact that the jurists behind the Gladue and Ipeelee Decisions recognized the importance traditional healing practices in the response to wrongful harm in indigenous cultures, and that this must be re-prioritized.
Two further seminar participants provided broader scholarly approaches to restorative justice. Professor Aertsen offered parallel examples of applications of restorative justice in Europe, including cases in response to sexual abuse in the Catholic Church, consisting of a combination of mediation, counselling, and arbitration, wherein judges do not directly intervene. Professor Pavlich capped the event with a more general look at restorative justice as a means of "governing wrongdoing that augments, rather than disrupts, social bonds."
"The presentations invited probing questions and public discussion from an audience that included several Provincial Court and Court of Queen's Bench justices, representative of various restorative justice initiatives, students and interested members of the public," said Pavlich.
"The well-attended event underscored the importance of involving diverse stakeholders in public events that initiate critical conversations about complex and pressing issues facing us today."