by David Milward. Vancouver: UBC Press, 2012. 303 pp. Cloth CDN$95.00 ISBN 9780774824569. Paper CDN$34.95 ISBN 9780774824576.
Reviewed by Thomas M.J. Bateman, Department of Political Science, St. Thomas University. Bateman [at] stu.ca
Recently released Statistics Canada data indicate that 4.3% of Canada’s population of 33.5 million people report an aboriginal identity. More than half of aboriginals live off-reserve. Fewer than half of aboriginal children live with both parents (compared to 76% of non-aboriginal children) and half of Canadian children in foster care are aboriginal: 3.6% of aboriginal children, versus 0.3% of non-aboriginal children. While aboriginals are among the fastest growing components of Canada’s population, aboriginal communities suffer myriad dysfunctions from alcoholism, drug abuse, family violence, suicide, ill-health, poor educational attainment, and high unemployment. Life in First Nations communities is too often characterized by corruption and fear.
European colonial subjection of aboriginal peoples is the major explanation for all this, and the details of this are too well known to require elaboration. Is colonialism the whole explanation, however? What of the possibility that for all the emphasis on the differences between aboriginal peoples and non-aboriginal populations, some basic imperatives of human nature explain dysfunction in all its complicated manifestations? At root, the issue is nature versus culture or convention. Are some cultures simply better than others? Will any culture, left to itself, unfold in an efficient, salutary way? Or are there fundamental human problems facing any culture, for which common, universal solutions are to be sought? What, in the end, do aboriginals and non-aboriginals share as humans?
Canadians do not like to confront these questions squarely. They prefer to live with the tensions, contradictions, and abeyances rather than risk disagreement and what may follow from that. In 1982 the Canadian Charter of Rights and Freedoms was entrenched into the Constitution, and has been celebrated ever since for proclaiming an enforceable standard of human rights comporting with human dignity. If Charter rights are human rights, then the Charter should apply to all people – certainly all people in Canada. But s.35 of the Constitution Act, 1982 (part of the 1982 patriation package but outside of Part I of that Act we call the Charter) declares that “existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” If those aboriginal rights mirror Charter rights, then no conflict presents itself.
But what if aboriginal traditions embody justice principles that diverge from Charter standards? Aboriginal peoples in Canada look to s. 35 as the legal foundation for the assertion of self-determination, and self-determination includes aboriginal (criminal) justice systems whose principles do not line up with Canadian Charter standards. One salient example: some aboriginal communities have historically used corporal punishment like whipping and biting to discipline wayward members. Section 12 of the Canadian Charter protects persons from cruel and unusual punishment. The Supreme Court understands s. 12 to enjoin corporal punishment. Is the court’s liberal humanitarianism so much Western imperialism?
David Milward is to be commended for taking the bull by the horns in confronting tensions that most Canadians prefer to avoid. His is a sober, realistic, and practical analysis of the tensions and how they might be resolved. In so doing he challenges certain myths that participants in the political debates have used to advantage. The debate has unfolded in binary terms. The liberal Western criminal justice model, we are frequently told, is adversarial, individualistic, and punitive, while aboriginal models are restorative, communitarian, and restorative. Milward agrees that the western model of criminal justice leaves much to be desired and cites evidence that imprisonment is much better are creating criminality than remedying it. He also agrees that aboriginal justice systems are often strongly restorative in character. But many also have retributive elements; Milward refers to the principles as “payback” (pp.188-191). They also use shaming and violence to vindicate communal principles.
While ordinary Canadians likely have no problems with the judicious use of violence and shaming as corrective measures – and while the Supreme Court in its early Charter jurisprudence recognized the stigmatic character of a criminal sanction – elite legal opinion these days recoils from such offences to “human decency.” While our legal and political elites are all in favour of the recognition of aboriginal rights, when they get into the weeds of aboriginal community life, they are reluctant to weaken Charter standards.
Milward supports aboriginal self-determination while recognizing that the Charter is here to stay. Accordingly, his book is an argument for a “culturally sensitive interpretation of legal rights” (p.5). Milward wants “the best of both worlds” (p.57). But this approach is not merely a concession to pan-Canadian Charterphilia. He also understands that life on reserves is often wracked by sexual violence, abuse of power, clan-based political corruption, and a host of other social problems that make the weak especially vulnerable to the strong. Charters of rights are meant to protect the weak against the strong, particularly when the strong get their hands on political power.
The bulk of the book unfolds the application of a culturally sensitive interpretation of nine Charter rights, including the right to be tried by an impartial tribunal, the right to retain and instruct counsel, the right to be to be presumed innocent until proven guilty, the right to be protected against unreasonable search and seizure, and the right not to be subject to cruel and unusual treatment or punishment. Milward also argues that s. 24(2) jurisprudence on the exclusion of evidence whose admission would bring the administration of justice into disrepute is inconsistent with aboriginal “truth-telling” traditions. Because Milward delves into the minutiae of historical aboriginal justice practices in respect to these principles, his arguments are often subtle, nuanced, and only suggestive.
Milward’s proposals are in some cases quite jarring. For example, on the question of judicial independence, Milward argues that a judge’s acquaintance with an accused will help him or her fashion a better result (pp.101-102). Mainstream Canadian thinking is that a judge’s acquaintance with the accused creates a reasonable apprehension of bias, imposing on the judge a duty to recuse him or herself. Milward is not bothered by such conflicts. Straining credulity, he suggests that “judges do not necessarily have to provide the appearance of fairness and impartiality as long as they actually are being fair and impartial in the performance of their duties (p.113; see also p.119).
There may also be a problem with respect to judges’ training. Milward argues that aboriginal “community court judges” shall be community leaders who need no particular legal training. They are to be of good character and able to apply aboriginal customary law as it is articulated to them by participants in justice processes (p.92; see also p.119). But Milward’s consistent argument is that aboriginal justice must reconcile itself with Charter standards. It is ‘both/and’, not ‘either/or. Yet aboriginal judges do not need training in half the body of law to be applied to aboriginal offenders. This does not seem right.
Non-aboriginals will reflexively resist Milward’s whole project. They typically associate such variable application of the law to aboriginals with aboriginals “getting off easy” while harsher sentences are meted out to non-aboriginals. Milward cites examples of such leniency. Readers might be surprised to learn, however, that aboriginal understandings often bear a closer resemblance to “crime control” approaches than Canadian Charter jurisprudence would countenance.
Non-aboriginals are also suspicious of differential application of rights per se, holding that it violates equality in the application of the law. But he reminds his readers that the Supreme Court itself applies legal standards differentially. One example is the defense of self defense: imminent threat of harm justifies self-defense, but for women suffering from battered woman syndrome, self defense is permissible even when the threat of bodily harm is no imminent (Lavallee). Section 1 analysis applies elements of the Oakes test differentially depending on the nature of the legislation in question. And rights, Milward contends, are not immutable standards removed from fluctuating opinion. Courts change their minds. For example, the Supreme Court in 1991 considered extradition to the death penalty to be consistent with Charter standards (Kindler) but in 2001 it said the opposite (Burns). Milward’s argument operates from two directions: it describes the variety of aboriginal justice standards, and also unfolds the variety of interpretations of Charter rights, having them meet in the middle, as it were.
Milward proceeds on the basis of two different assumptions. The first assumption is that traditional aboriginal justice is to be recovered and implemented as part of a general path to self-determination and self-government. If aboriginal standards are different than Western individualistic standards, so be it. Implicit in Milward’s argument in this respect is that many aboriginal standards are better than western ones. He favours, for example, some types of swift, certain corporal punishment over drawn-out legal processes leading to prison terms that only produce alienation and career criminality.
The second assumption is that extant aboriginal societies are shadows of their former selves – scenes of social dysfunction and breakdown. The implication is that traditional aboriginal justice, depending as it does on the existence of healthy communities populated by people who share the same understandings of proper conduct, the authority of elders, and the priority of community, may not work in contemporary, extant communities where these features do not obtain. Indeed they may do more harm than good: community justice circles may amount to a tyranny of the majority against a hapless accused. This is why Milward favours a degree of Charter application to aboriginal communities: the Charter provides robust protection of individuals against the abuse of power.
One can see the problem here. Aboriginal justice depends on living communal cultural understandings to support it. Extant aboriginal communities often lack such understandings. The Charter is necessary to protect aboriginal individuals from abuses of power stemming from community dysfunction. But the Charter’s individualism is alien to aboriginal cultures. It may then protect individuals while contributing to the decline of traditional aboriginal understandings. So the expedient to address dysfunction in the end may exacerbate it. To his credit, Milward recognizes this and offers his book as an exploration of a way to bring aboriginal and Canadian understandings of justice into some sort of workable relation. His appeal to a culturally sensitive interpretation of the Charter is thus a sober recognition of practical realities.
Milward’s practicality extends further. He avoids facile appeals to “the aboriginal way” in which justice should proceed. He is sensitive also to significant differences among aboriginal peoples in terms of their accounts of justice. And he recognizes that differences of opinion exist within aboriginal communities. An important difference that has emerged in the past 30 or so years concerns the attitude of aboriginal women to justice. Women are of course the principal victims of sexual violence and many think that the problem is not taken seriously enough on reserves and that those in authority are among the offenders. Aboriginal women are among the most vocal proponents of Charter application on reserves. Aboriginal justice initiatives will have to deal with diversity of opinion within communities, not just between them and the non-aboriginal world.
I emphasize Milward’s practicality. Perhaps he is too practical. For there are issues of political philosophy crying for attention in this book. On the one hand, Milward pits aboriginal understands of morality and justice against European ones, suggesting that it is wrong for Europeans to impose standards of “decency” on others who do not accept the definition (p.192). He quarrels with conceptions of the “reasonable person” implicit in the s. 24(2) test for the exclusion of illegally obtained evidence. This is so much cultural relativism familiar to students of politics and law.
On the other hand, peppered throughout the book are references to “natural justice”, fundamental trans-cultural principles binding all cultures. In addition, Milward believes that the abuse of power in aboriginal communities is not merely the product of European colonial imposition. It seems to be inherent in human communal existence. Decrying those occasions when Elders fail to uphold the high standards of their office, Milward argues that “[n]o society…aboriginal or non-aboriginal, can fully escape the need to address those occasions when their leaders fail their mandate and fall short of expectations. Any given society will have to somehow provide for holding its own leaders accountable” (p.108). Milward reports one Elder’s comment concerning the application of human right legislation to aboriginal governments: “If our communities were perfect, we would not need this protection. But they are not, and we do” (p.118).
This last remark bears a striking resemblance to James Madison’s famous argument in The Federalist No. 51 for checks and balances on the exercise of political authority: “It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.” The Federalists were making an argument for constitutional government based on an account of human nature.
How does Milward understand the foundation of government? What in the end makes government legitimate? Is it tradition and memory? Is it ethnic character? Is it consent, the liberal solution? One would think that for Milward it would be the first or second option, not the third. Yet in the final pages of the book, Milward toys with social contract theory. In his discussion of punishment and how aboriginal justice differs from Supreme Court jurisprudence on cruel and unusual punishment, he suggests that here, as in other areas of legal rights, accused persons can waive their Charter rights and submit to aboriginal justice. What if an accused does not explicitly waive his or her s. 12 rights not to be subject to cruel and unusual treatment or punishment? Or what if consent seems coerced? Milward resorts to social contract theory, suggesting that aboriginal justice authorities can proceed on the basis of implied or tacit consent. He cites the familiar names of Hobbes, Locke, Rousseau and Rawls in support. While the notion of tacit consent appears in modern social contract theory and to this extent supports Milward’s argument, it should be noted that Milward mischaracterizes social contractarianism. He argues that “[t]he concept of a social contract is that members of a civil society enter into an understanding with the governing authority” (p.196). This is not correct. Social contract theory holds that people contract with one another to create government. Government is the product of a contract, not a party to it. This indicates to that Milward is not really a contractarian but resorts to it for rhetorical purposes. Milward’s search for the foundation of government seems to incline to a form of consent that in the end more resembles tradition and memory since he assumes government precedes the contract. Does Milward, then, incline to Socrates’ account of contract in Crito?
It is simply hard to say. In the end, one wonders what are the arguments of principle for aboriginal justice. The Europeans were imperialists, but they were liberal imperialists, appealing to a conception of human nature and constitutionalist principles flowing therefrom. Does Milward reject liberalism? Is his accommodation of the Charter purely pragmatic, a means of coming to terms with the imperial master? Or is there something fundamentally good and just in Charter standards? If so, why?
Milward’s book is disappointing on these fundamental questions. But it is nonetheless a sensible, courageous, and even-handed inquiry into tensions and conflicts Canadians would rather ignore. I hope it provokes more debate.
Kindler v. Canada (Minister of Justice),  2 SCR 779.
R. v. Lavallee  1 SCR 852.
R. v. Oakes  1 SCR 103.
United States v. Burns  1 SCR 283.
Copyright 2013 by the Author, Thomas M.J. Bateman.