Without Northern Justice, Southern Justice steps in
The CBC Forum on indigenous justice underlined the fact that Northern communities, composed generally of well-intentioned and law abiding members, have not acted as nations by taking control of their non law-abiding members. The point is that, ultimately, if there was Northern justice, southern justice would not have to step in.
I see this problem in Court all the time, where the presiding Judge is faced with sentencing an individual who has injured another member of the community and having no real option but to send him or her to jail. The southern justice paradigm the Judge brings with her/him includes the idea of jail as a collective expression of repudiation for the violence that brings the offender before the Court.
Apart from the fact that others in the community are supposed to be deterred by this offender’s sentence, the idea of justice demands that the more serious the crime, the stronger the denunciation (the longer the jail sentence) must be. It is not as though the Judge has any real choice; this rule goes back hundreds of years through generations of judges. I should add that although my personal opinion is that deterrence is utter nonsense, there is no getting around repudiation as a fundamental sentencing concept.
It is my experience that if you can get the judge outside this rule, s/he will leap at the chance to do something other than just stick someone in jail; but, the fact is that the Judge has to follow the rules AND after all, s/he is according to the southern justice paradigm speaking on behalf of an injured person who is not in a position to denounce what took place him/herself.
In thinking about the fact that southern justice finds itself in the North by default, I was reminded about of a case I dealt with in a tiny community (just one of many that exemplifies this issue). Two RCMP officers were inside a house breaking up a drunken party that had gone off the rails – the trouble-make left by the time they arrived. From inside, they heard a very noisy snow-machine pull up at the bottom of the porch steps. Seconds later, an elderly (but pretty tough) individual was pounding on the door. One of the officers, who was on his way out, opened the door and it was immediately apparent that the individual was highly intoxicated. It was extremely likely, there being no one else around the snow-machine, that he had been operating it illegally, but the officer simply suggested that he should surrender his keys and go home (the party was breaking up). The individual, with some persuasion, which included actually pulling the keys out of his hand, agreed to follow the officer’s suggestion. As time passed, his level of intoxication became a worry (it was February) so the officer suggested that when his partner came out, they would drive him home.
The two officers were helping the fellow into the back of the police truck when he suddenly started resisting their attempts to lift him into the back. They were not able to convince him that they were, at that stage, simply trying to get him home; even one of the departing party-goers was not able to convince him to cooperate. As it turned into a fight, it was clear that he was too intoxicated to simply take home so they told him that he was being arrested for being intoxicated in public. At this point the battle was on and one officer had to get into the back of the truck and pull him in from behind while the other officer controlled his feet. They left him lying on the back seat and drove back to the detachment. He was passed out when they arrived (about 3 minutes later) and had to be carried into the detachment.
He was charged with resist arrest and kept in the drunk tank for the night. With 3 witnesses to these events, a guilty plea was the only option; the Court fined him $300.
RCMP policy suggests that he should be taken to the ground and cuffed but that didn’t happen. He was not charged for the impaired. He was not charged for the radio he wrecked. He was not charged with assault police for the kicking that took place as he was being dragged into the back seat. I asked one of the officers why he had not been cuffed or charged with any of the other offences. His reply: “That’s part of northern policing. I didn’t actually see him driving and no one got hurt. Why make things tough for this old guy?”
Why was it socially acceptable (at least to him) for this guy, wasted and on the verge of passing out, to show up at a party? But for the fact that they had to deal with the problem he created for them, the police would have simply driven him home. Similarly, absent steps on the part of the community to deal with these kinds of issues, southern “justice” has no choice but to show up.