Citizens and Law Enforcement: Early Foundations 1760-1835
During the early stages of Canada's development, when First Nations people and European explorers and settlers were establishing their respective territorial claims, the concept of "police," in its modern sense, was foreign to each group. The First Nations people as well as the English and the French had laws that were deeply rooted in their respective religious and spiritual codes and beliefs. These laws were reinforced by various types of group coercion and, if necessary, "military" authority. While many Europeans viewed First Nation societies as being devoid of any concept of law, evidence from the writings of missionaries indicate there were in fact numerous laws governing their lives, particularly criminal law (Brown).
French and English laws were similar in one respect. The principal objective of their judicial systems was retribution and deterrence. Individuals alone were responsible for their actions and received punishment accordingly. Control of crime and the issuance of punishment were primarily seen as the responsibility of government. This approach was based on the legal principle that criminal acts are offences against the state. The criminal justice aspects of the common law system, well established at the time of the British Conquest of North American in 1760, were transplanted a few decades later and adapted to local conditions throughout both English and French settlements as well as superseding criminal laws of First Nations people. Local justices of the peace, sheriffs and constables apprehended suspected criminals and punishment was harsh: in 1800 more than fifty offenses in Nova Scotia carried the death penalty (Jim Phillips 71, 73).
The principal objective of criminal justice among First Nations people was, and continues to be, healing and reintegrating offenders into the community (Warry 164). Underlying their ideas of law are principles of social well-being and the restoration of positive relationships. Values instead of rules are emphasized (Warry 174, 176). Thus, First Nations defendants in Canadian courts are often not conscious of committing an "offence," as prescribed in common law. “Guilt” – in a criminal sense – is also foreign to their traditional beliefs (Warry 182). The First Nations view of justice includes involving the victim and the community in the adjudication process and treating the crime as a “social injury” rather than relying on justice experts (Warry 191). First Nations people often use avoidance, non-interference, and indirect action to resolve conflicts - a radical departure from the Western notion of confrontation and open discussion of personal, family, and community problems (Warry 192).
This dichotomy between European colonial law and the laws and customs followed by First Nations groups created significant legal, political, and social divisions in the early history of Canada. These divisions continue two and a half centuries later. The idea that there is only "one law" in Canada has consistently been a barrier in resolving political and legal issues between First Nations people and the cultural majority in this country. It is only recently that the First Nations legal principle stating that offenders must be accountable to their own communities has been acknowledged in Canada's criminal justice system (Canada. Royal Commission…Aboriginal Peoples). The Law Commission of Canada has also recognized the importance of "Indigenous legal traditions" and the need to "give them parity in our legal system" (Law Commission Annual Report 4).
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