Lisa Kelly and Lisa Kerr are assistant professors at Queen’s University, Faculty of Law
What is a law school for? The acquittals of the accused in the killings of 22-year-old Colten Boushie and 15-year-old Tina Fontaine have resurrected an old debate about the purpose of legal education. Can law school be taught in a neutral way?
In 2018, most law teachers understand that law and politics are not distinct domains. As a result, the role of a law school is not simply to convey to students the formal rules of legislation and the doctrines established by cases. Instead, we encourage students to analyze the complex relationship between legal principles and societal values. We understand and teach law in the context of history, culture, economics, and political economy.
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This is especially true as law schools work to implement the recommendations of Canada’s Truth and Reconciliation Commission (TRC). Recently, the University of Victoria launched the world’s first Indigenous law degree, a direct response to the TRC’s call to establish institutes for the development, use and understanding of Indigenous law. This training necessarily requires attention to history and politics both to revitalize Indigenous legal traditions and to transform colonial legal systems that have worked to repress them.
To some, this makes legal education too political. Our colleague at Queen’s law faculty, Bruce Pardy, recently wrote that he fears “legal education has lost its way.” Citing a statement by University of Windsor law professors that expressed grief and resolve in the wake of the acquittal of Gerald Stanley in the killing of Mr. Boushie, Prof. Pardy writes that, “today’s law schools resist the idea of equal application of the law and openly advocate progressive policies.” Rather than training future lawyers to “understand legal principles and to think logically and critically,” he warns that some schools are advancing a progressive agenda aimed at “defeating oppression and righting historical wrongs – by favouring or blaming people as members of groups, and by undermining Western legal principles …”
Calls for a return to legal formalism – a legal education free of politics – are themselves deeply political. Stripping law of context allows supporters of the status quo to portray legal rules as neutral or apolitical. Moreover, doing so enables them to characterize limited reform efforts as special treatment. Indeed, Prof. Pardy appeals to this trope when he suggests that Canadian courts may impose “more lenient penalties” on Indigenous accused “pursuant to the Criminal Code and the Gladue principles.” This is a misinterpretation at best – and shows exactly what backlash to Indigenous struggle looks like.
In fact, in 1999, the Supreme Court of Canada specifically rejected that argument, stating clearly that Indigenous people are not to receive a “race-based sentencing discount”. Rather, they are to receive a sentence that is proportionate to culpability – like all other offenders. Where the Criminal Code says “particular attention” should be paid “to the circumstances of Aboriginal offenders,” this means paying attention to the systemic factors which affect many Indigenous defendants. The Court described how discrimination, dislocation and economic development “have translated, for many aboriginal peoples, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation.”
In 2012, the Court emphasized again that race does not entitle Indigenous defendants to a more lenient sentence. The focus at sentencing remains on the “unique circumstances of the particular offender”, though the culpability of some offenders is properly analyzed in light of the legacy of the Canadian government’s treatment of Indigenous peoples. In many cases, this means sentencing through the lens of residential schools, the loss of self-government, cultural oppression, and social inequality.
Prof. Pardy’s worries are also based on a view, rejected by the Court in Gladue, that “imprisonment constitutes the ultimate punishment.” As the Court held, probation and house arrest can impose burdens equivalent to or greater than a custodial sentence.
As legal educators, rather than avoiding the extensive evidence of systemic inequality, we must confront the well-documented reality that Canada’s criminal law system simultaneously overpunishes and underprotects Indigenous peoples. Prior to the 1960s, Indigenous people accounted for 1 per cent to 2 per cent of Canada’s federal prison population. Today, Indigenous men represent well more than a quarter of the federal prison population and Indigenous women count for fully 38 per cent of female federal inmates. The figures are striking given that Indigenous people account for about 5 per cent of Canada’s population.
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Canadian lawmakers and officials have long been aware of these disparities. In 1996, the Royal Commission on Aboriginal Peoples pointed to overincarceration as evidence of how the “justice system has failed Aboriginal peoples.” Despite legislative and judicial efforts, the problem of Indigenous overincarceration has only gotten worse year after year. Hence, Indigenous peoples and, yes, some law schools, are calling for more transformative solutions.
What makes the idea of a “free pass” or “progressive bias” all the more disturbing is that the same criminal law system that punishes Indigenous people so vigorously woefully under-protects them. Indigenous women, in particular, are vulnerable to extreme violence. They suffer an overall rate of violent victimization that is close to triple that of non-Indigenous women. Statistics Canada finds that Indigenous people are about twice as likely as non-Indigenous people to have “not very much or no confidence at all in the police.”
The deaths of Mr. Boushie and Ms. Fontaine – and the investigations and acquittals that followed their killings – have sparked outrage across the country. To many, it is exceptionally hard to believe that had a group of young white people driven onto a First Nations reserve and a 56-year-old Indigenous man had shot one of them in the back of the head – the accused would still have been acquitted on all charges. No one has suggested that the transformative reforms these cases may call for are obvious or easy. But as Mr. Stephen Ford, a Mohawk criminal and constitutional lawyer, recently told an audience at Queen’s Law School: “Justice must not only be done; it must be seen to be done.”
The past is never dead. To borrow from William Faulkner, “it’s not even past.” Colonial efforts to eliminate Indigenous cultures, languages, and ways of living have had profound and lasting consequences for many Indigenous nations and communities. The Supreme Court has found that current levels of Indigenous involvement in the criminal justice system “are intimately tied to the legacy of colonialism.” Decrying efforts at reform and characterizing badly overdue remedial action as a form of special treatment turns reality on its head. Legal education must include analysis of how legal rules and systems distribute power in society. Law has helped to create much of the inequality that we see today, and we should be suspicious of those who don’t want law schools to notice.