Self-determination over criminal justice remains an aspiration of Indigenous peoples to this day. But so far the dialogue remains fixated around perceived parallels between past Indigenous traditions of justice and restorative justice. The dialogue in its early years often presented those perceived parallels in a rather romanticized way, holding out Indigenous justice as a gentler, more benevolent and ultimately more effective form of justice that could end the problem of Indigenous over-incarceration.1 The dialogue has gained more complexity and nuance since its genesis. Most notably, feminist authors have brought to our attention potential concerns around inequities of participant power, coercion against victims, and re-victimization of crime victims.2 Others, myself included, have tried to introduce a meeting at halfway of sorts, trying to realize the benefits of restorative justice while seeking ways to address the concerns raised by the critics.3
This dialogue remains ongoing and needs to continue. However, to focus only on the perceived parallels to restorative justice loses sight of the fact that those parallels constitute only one aspect of Indigenous justice systems that were complex and sophisticated, and in ways that may not be readily apparent to Common Law jurists. Indigenous societies, like every other society, have had to grapple with questions of what is acceptable conduct and what is not. Much of Canadian criminal law is bound up with questions of defining criminal behaviour through the constituent components of actus reus and mens rea, as well as defences to criminal charges. Indigenous societies, while not drawing upon precisely the same concepts, have also had to engage with the need to delineate what is sanctionable behaviour and what is not. Examples of these emerge from the traditional stories of Indigenous societies if you listen to them carefully and with an open mind.
To what extent should the omission to act, to refuse to help someone who needs help, be punished as a criminal offence? The answer to that question depends on who you ask. Canada, and many other Common Law jurisdictions, do not impose a general duty to assist. Canadian criminal law will only punish a passive state when there is a specific duty to assist that is precisely delineated and narrow in scope in comparison to a general duty, and where there is an omission to act in accordance with that duty. An example is s. 18 of Manitoba's Child and Family Services Act, which makes it offence not to report to authorities when a person is aware that a child is in need of child welfare intervention.4
Several Contintental jurisdictions impose that general duty to assist, embodied in what are known as Bad Samaritan laws.5 Cree law imposed a general duty to assist as well. The Swampy Cree near James Bay have a traditional story that features the Giant Skunk as an antagonist. Giant Skunk was mortally feared because of its great size and its smell. It eats other animals, and has a fearsome reputation akin to the Kraken from Clash of the Titans or Fenrir the Great Wolf in Norse mythology. The Giant Skunk notices that another character, the Weasel, has crossed its path and feels insulted. The Giant Skunk decides to pursue and kill the other animals. The other animals initially decide to flee, but the children and elderly are becoming tired. Giant Skunk will catch up, so the animals convene another council and decide they have to make a stand. They make their stand in a large valley lake in the mountains. They make no effort to hide their trail in order to lure the Giant Skunk into a trap. The women, elderly and young children are led away further into the mountains. Only the adult males participate in the coming battle. The other animals also seek Big Cat's help in killing the Giant Skunk. But Big Cat initially does not want to get involved, and just wants to rest in his cave. Big Cat does eventually decide to help though. He agrees to help on the condition that the other animals prepare a place from which he can jump onto the Giant Skunk. Giant Skunk begins his assault. Wolverine jumps on Giant Skunk’s anus and holds the tail down to prevent Giant Skunk from using his spray. The other animals jump down on Giant Skunk to try and kill it. They finally succeed when Big Cat, albeit reluctantly and taking his time to do so, jumps on Giant Skunk’s neck.6
There are some definite contrasts that emerge here. A key reason for the Common Law's refusal to impose a general duty to assist is a pronounced reluctance to insist that citizens take on the risk of potentially very dangerous situations onto themselves. It is easy of course to say that only those who can handle certain risks should have the expectation placed on them, while those less capable would only be expected to act with less risk (e.g. simply calling for help). The problem, and part of Common Law's ongoing refusal, is how do you delineate what is an acceptable level of risk and what is not, or who has the capabilities of handling a given risk and who does not? That is an exercise fraught with uncertainty and bound to generate divisions of opinion.7
Cree law, however, embraced that exercise. The animals initially tried to flee, to avoid the risks. Once it became apparent that the Giant Skunk was going to catch up, the women, children and the elderly did not have the expectation placed on them. And yet once that sorting out had occurred, the healthy adult male animals were fully expected to take very real and mortal risks upon themselves.
As another example, Canadian law treats attempting to commit a crime as a punishable crime unto itself. If the accused fires a gun at his intended victim and misses without any physical harm, the accused will still be guilty of attempted murder.8 Various actors in the Canadian justice system, particularly Crown prosecutors, will be highly concerned that there will be public safety ramifications if the shooter is not prosecuted, if a message is not sent out to the rest of society, even if the attempt was ultimately successful.
Cree law offers a quite different perspective through the stories of conflict between Wesakaychak and his father-in-law, Weymesosiw. Weymesosiw was initially possessed of a very homicidal spirit, seeking to murder all that came near his camp who were not of his own family. Although Weymesosiw had given the outward appearance of consenting to Wesakaychak's marraige to his youngest daughter, he immediately and for some time thereafter set about to commit several attempts on Wesakaychak's life. All of them are unsuccessful. At some point, Wesakaychak has Weymesosiw at a distinct disadvantage when he tricks Weymesosiw into burning his own clothes, instead of Wesakaychak's as Weymesosiw originally intended. Wesakaychak has Weymesosiw at his mercy, but decides neither to kill him nor to aid the latter in reaching home. Wesakaychak decides to leave Weymesosiw to his own devices so that he has to reach home the hard way, without any clothes to protect him from exposure. Weymesosiw eventually manages to accomplish this by keeping a large rock heated long enough, and rolling it along, so that he can make the journey back.9
Weymesosiw had learned a lesson in life, as Wesakaychak had intended. Weymesosiw had become a kinder and gentler man for the experience, and the two eventually departed with a newfound respect and admiration for each other. What is implicit in the narrative is that if Wesakaychak had insisted on punishment or vengeance for past attempts on his life, it would have been counterproductive. Would it have undone the progress that Weymesosiw made with his own personal and spiritual growth? Would it have undone the greater state of harmony and co-existence that had been reached?
And these stories should not be treated as past relics with no present significance. Indigenous peoples may well want to make use of laws grounded in their historical past for application in the present. But there are certainly difficult questions of adaptability and application that need to be explored, not just by academics like myself, but also by Indigenous communities themselves.
Would it be a helpful positive if the general duty to assist in Cree law was revived in Cree communities? An affirmative answer to that question is not necessarily a given. There is something to be said for requiring community members to come to one another's aid, especially in Indigenous communities plagued by violence, especially against women and children. But what if the problems are so severe that it forces community members to take what may seem like unreasonable risks upon themselves? What if an Aboriginal woman who is suffering from domestic violence has no one to turn to because domestic violence is so prevalent to the point that it is normalized, and where the abuser is connected to and supported by the local power structure that accountability seems like a fantasy?10 What if almost everyone in the community is a Giant Skunk, and there are no Big Cats and Bears and Weasels to help you? Is the revival of Cree law premature or even impossible in such a setting?
Gang violence and shootouts as rivals struggle with each over for territory remains an epidemic problem for Cree First Nations surrounding Hobbema, Alberta.11 Certainly the activities of Aboriginal youth gangs can be extremely dangerous for the communities they operate in, including for community members who are not themselves involved with the gangs. And yet the Aboriginal youth who find themselves in gangs come from very troubled backgrounds that include poverty, substance abuse, neglect, lack of supervision, and physical and sexual abuse.12 Imagine that an Aboriginal youth in Hobemma shot at a member of a rival gang member and missed. Now imagine that he's been able to get help and make progress with his problems and behaviour. Is it better to insist on a punishment for his unsuccessful attempt on somebody else's life? Or does making that insistence threaten to undo the progress that he's made, especially if sending him to prison only promises to reintegrate him with gang life? Different people will come up with different answers to those questions, including within Cree communities themselves. Some members of Indigenous communities may be so fearful of youth gang activities that they want incarceration, punishment and permanent expulsion to further community safety. Others may regard that reflexive insistence as a lost opportunity, at least in instances where rehabilitative progress is possible.
These are difficult questions, and there no cut and dry or easy answers to them. But if Indigenous peoples are to have true self-determination over criminal justice, then it has to include the right to tackle those questions and find their own answers to them, and not be limited to just stereotyped notions of restorative justice. Imagine that an Indigenous community begins the process of creating their own laws and institutions, delineating what is criminal and what is not, and answering the difficult questions that arise. It may well be that the Indigenous community finds its own answers that work for its members, and provide solutions for its problems. Part in parcel with Aboriginal self-determination is that mainstream Canadian society has to accept that it is how the Indigenous community wants to do things for itself, even if the results are uncomfortable to behold from a mainstream perspective. For mainstream Canadian society to say, "Indigenous peoples shouldn't be allowed to use that law because it's different from our law and we don't like it" is the very essence of colonialism.
1 Rupert Ross, Returning to the Teachings: Exploring Aboriginal Justice (Toronto: Penguin Books Canada, 1996)
2 Annalise Acorn, Compulsory Compassion: A Critique of Restorative Justice (Vancouver: UBC Press, 2004); Carol LaPrairie and E. Jane Dickson-Gilmore, Will the Circle Be Unbroken?: Aboriginal Communities, Restorative Justice, and the Challenges of Conflict and Change (Toronto: University of Toronto Press, 2005).
3 David Milward, Aboriginal Justice and the Charter: Realizing a Culturally Sensitive Interpretation of Legal Rights in Canada (Vancouver: U.B.C. Press, 2012); Declane Roche, Accountability in Restorative Justice (Oxford: Oxford University Press, 2003).
4 Child and Family Services Act, C.C.S.M. c.C80.
5 Ken Levy, "Killing, Letting Die, and the Case for Mildly Punishing Bad Samaritanism" (2010) 44:3.
6 Louis Bird, Telling Our Stories: Omushkego Legends & Histories from Hudson Bay (Toronto: University of Toronto Press, 2011) at 69-78.
7 Miriam Gur-Arye, "A Failure to Prevent Crime - Should it be Criminal?" (2001) 20 Criminal Justice Ethics 3.
8 R v Ancio,  1 S.C.R. 225.
9 Edward Ahenakew, "Cree Trickster Narratives" (1929) 42:166 The Journal of American Folklore 309 at 315-319.
10 Anne McGillivray and Brenda Comaskey, Black Eyes All the Time: Intimate Violence, Aboriginal Women and the Justice System (Toronto: University of Toronto Press, 1999).
11 "Gangs, violence, alcohol part of growing up in Hobemma, Alta. say killers" (C.B.C. News: May 15, 2013).
12 Annie K. Yessine & James Bonta, "The Offending Trajectories of Youthful Aboriginal Offenders" (2009) 51:4 Can. J. Crime. 435.