Criminal Justice, Indigenous People, and Political Power in Canada

My dissertation contributes to the work of reconciling radically different justice concepts with a view to designing institutions that can be accepted as legitimate by Indigenous and non- Indigenous Canadians alike. The project is principally a work of political theory within Canadian politics, but it draws upon and contributes to literatures in political philosophy, empirical political science, criminology, and law. The central question of my dissertation is, how can criminal justice in Canada be rendered legitimate for Indigenous people? I argue that legitimate criminal justice is possible, but only if Canadian criminal justice practices are altered to incorporate fundamental insights from Indigenous theories of justice. Chapter two surveys the failures of Canadian criminal justice for Indigenous people, including overincarceration, underrepresentation on juries, the epidemic of missing and murdered Indigenous women, and over- and under-policing. Drawing on Indigenous voices, I argue that these are symptoms of an underlying problem: the criminal justice system is not legitimate for Indigenous people. In the third chapter, I argue that the prominent liberal theories of legitimacy that undergird the Canadian polity cannot legitimate the Canadian constitutional framework or the institutions of criminal justice. Instead, criminal justice institutions must establish a form of freestanding legitimacy by deploying practices that themselves are acceptable to Indigenous people. In chapter four I make the case that a separate system of justice for Indigenous people cannot provide legitimacy. The lives of Indigenous and non-Indigenous Canadians are sufficiently intertwined that justice problems would inevitably cross jurisdictional boundaries (defined territorially or by identity), leaving many caught in the other system. In matters of justice, separation cannot obviate the need for reconciliation. In chapter five, I work to reconcile Indigenous and non-Indigenous understandings of a concept fundamental to Canadian justice: impartiality. I develop an inclusive model of impartiality implicit in Indigenous practices of circle justice that can supplement the Canadian model of impartiality as disinterestedness. In the conclusion, I note that the level of punitiveness of Canadian justice is unjustified, and a less punitive approach for all would open up more juridical and legal space for Indigenous approaches to justice.

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