Nunatsiaq Online
COMMENTARY: Nunavut October 10, 2017 - 11:30 am

Legal Ease, Oct. 10

Crime and punishment

JAMES MORTON

Canadian criminal law is based on English law and makes a very clear distinction between a finding of guilt and punishment for a crime.

That is, if someone is found “not guilty,” they are not punished at all—but if they are found “guilty” then punishment will (almost certainly) follow.

In other systems, including Inuit traditional law, punishment is more graduated and guilt can come in degrees. 

The wrongdoer, and not the wrongdoer’s actions, is the focus of traditional law. So, for example, an online article from Arctic College based on interviews of elders says that after a wrongdoing occurred:

“Elders began by talking to the person and making him or her feel loved. If the person continued to misbehave, the Elders would speak to him or her again. This time it would be done in a more serious tone and possible consequences would be outlined. If the behavior continued, it was felt that the individual had already been warned and therefore had to accept the consequences of his or her behavior. Members of the community may be told that they were permitted to seek revenge on this person.”

Punishment of wrongdoers is not a goal of traditional justice. Rather, restoration of the community following wrongdoing is the goal. Each individual contributes to the functioning of the community and making each individual a part of the larger community is essential.

As an example, I recently represented someone who had a decent defence to a serious criminal charge. Nevertheless, even though he was not pleading guilty, he wanted to write a letter explaining how the situation had changed him and, in some sense, apologizing to the person who was hurt by the crime.

This individual was thinking of crime in the traditional justice sense.

In Canadian law, unless you are pleading guilty or have been found guilty, apologizing to the person hurt by the crime is problematic because it may suggest you are guilty.

Certainly, if you are charged with a crime hurting someone else, you should not contact that person without speaking to a lawyer first to make sure you are legally entitled to make contact (usually you are not allowed to contact that person) and to make sure what you want to say will not hurt your criminal case.

Having said that, in a broad sense, the goals of Canadian criminal law certainly include making society whole after a crime and rehabilitating an offender so they can be productive members of Canadian society. That is explicitly set out in the Canadian Criminal Code.

What is more, in Nunavut communities, community justice programs exist and deal with, generally, more minor crimes.

Community justice is based on Inuit Qaujimajatuqangit (Inuit traditional knowledge) and among other things, instills in offenders three specific values: respect for others; serving family and community; and working together for a common cause.

As a result, at least for less serious crimes, there remains a very valuable traditional approach.

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

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