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Nature's Law
Spiritual Life, Governance, Culture, Traditions, Resources, Context and Background
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Canada, Too, Has Deep Differences
Making Room

The Goal of "Justice"

The United States
 Experience

Ensuring Space Is
Left Open In Canada

An Apache
 Paradigm

The Informal
System of Justice

Customary Law

Canada, Too, Has
 Deep Differences

The Indigenous
 Justice Process

The Navajo
 Approach to
 Reconciliation

Visual representation of nature's laws


Mr. Justice Murray Sinclair of Manitoba has noted that the legal concept of innocence/guilt is not granted the same importance by traditional cultures as it is in the Canadian criminal justice system. In many First Nation communities, guilt is usually secondary to the main issue: "something is wrong and it has to be fixed."

Because the main objective is the restoration of harmony rather than the imposition of punishment, the accused is more likely to admit wrongdoing, less likely to plead extenuating circumstances. Judge Sinclair suggests that perhaps this explains why so many Aboriginal people plead guilty when in court.

The following table demonstrates the conflict between Aboriginal and non-Aboriginal values in a court setting.
 
Concept

Western Model
The "Traditional" Model
Justice System Adversarial. Two differing parties argue a defendant's guilt or innocence, or to declare a winner and a loser in a civil case. Focus is on one aspect of a problem that is discussed through adversarial fact-finding. Interaction between parties is minimized and remains hostile throughout. Non-confrontational, multi-partied; primary focus on resolution, reconciliation, healing, peace.
Guilt Guilty or Not Guilty? Was I involved?
Pleading Guilty Right against self-incrimination. Not dishonest to plead "not guilty." It is dishonest to plead not guilty if one has been involved in the offense. Obligation of accused to verbalize accountability.
Testifying A civic duty. Reluctance to be confrontational, especially in the presence of the accused..
Truth Tell the "whole truth." It is impossible to know the whole truth. We know only what we know.
Witnesses Only certain people are called. Everyone is free to have their say. Attempt to give answers that please counsel.
Eye Contact Maintaining eye-contact indicates truthfulness. Eye contact with a person of authority is a show of disrespect or aggression.
Emotion Show of remorse, desire for rehabilitation may mitigate sentence. Accept what you have coming to you without showing emotion.
Post-Incarceration Your debt to society is paid. Your debt is still pending. Offenders remain accountable and responsible for change.
Function of Justice Punishes deviancy, protects society. To heal the offender. Restore peace and harmony to the community. Reconcile the offender and victim and families.
System Authority Hierarchical, vertical authority, with decision-making limited to a few. Level, involving entire community in decision-making.
Communication Rehearsed, stylized.

Argumentative, conflictive.
fluid, spontaneous. Open talk essential to resolve conflict.
Language English. Native and English.
Law Written, statutory, technical, search for "loopholes." Oral, based on values and "what’s right."
Religion Separation of Church and State Spiritual realm, ceremony, prayer integral to life. Restoring spirituality and cleansing one's soul are essential to the healing process for everyone involved in a conflict.
Relationship Adversarial, conflict-oriented. Builds trusting relationships to promote resolution and healing.
Event Behaviour is isolated, freeze-frame acts. Problem is seen in its entirety, contributing factors examined.
Approach to process & solutions Fragmented. Comprehensive.
Time

 
"Time is money." No time limits. Long silences, patience are valued. Inclusive of all affected individuals and those who can help solve problem.
Representation By strangers. Representation may include extended family members.
Rights Focus on individual rights. Focus on victim and communal rights.
Sanctions Prescribed by state, removes offender from community. Community has voice in determining sanctions needed to restore relationships. Offenders remain an integral part of the community with an important role in defining the boundaries of appropriate and inappropriate behavior and the consequences associated with misconduct.
Vindication To "society." To victims, community. Apology is reciprocated by forgiveness. Reparative process makes things right for oneself and those affected by the offender's behavior. It is essential for the offender to make amends through apology, asking forgiveness, making restitution, and engaging in acts that demonstrate a sincerity to make things right.
Fundamental philosophy

 
Retributive. Criminals should suffer for their actions and deserve to be  punished. We are part of a whole. If something is wrong with one part, the whole needs to be healed. Everyone involved with persons in conflict or with a problem are part of a circle of justice, with everyone focused on the centre: the underlying issues that need to be resolved to attain peace and harmony for the individuals and the community.
Fundamental style Adversarial, punitive, guided by codified laws and written rules, procedures, and guidelines. Restorative, reparative, unifying, healing, guided by values and fairness.  Crime is viewed as a human error that requires corrective intervention by families and elders or tribal leaders.
Victims, Future Reduction in future crime not correlated with justice. Debt is paid to "society," little reparation to victims. The process should prevent future crime; victims should receive full reparation.
Reconciliation Punishment is used to appease the victim, to satisfy society's desire for revenge, and to reconcile the offender to the community by paying a debt to society. Reconciliation promoted by conduct. Revenge seen as immature and counter-productive to reconciliation. Process heals damaged personal and communal relationships. The victim is the focal point, and the goal is to heal and renew the victim's physical, emotional, mental, and spiritual well-being. Offender makes deliberate acts to regain dignity and trust, and to return to a healthy physical, emotional, mental, and spiritual state.

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