Reply #12: Charter of Rights and Freedoms still takes precedence ... [View All]

[Lisa]

A similar type of approach is being used in some aboriginal communities, where a combination of traditional cultural laws and Canadian justice is applied.

From what I understand of it (I can ask a prof who's in my building to clarify) -- if there is a penalty in the traditional code that is illegal under Canadian law, it doesn't get applied. Someone earlier mentioned executions ... I imagine that "the lash" and other things that would fit under "cruel and unusual punishment" would not be allowed either. As Iverglas said, no chopping!

The example explained to me was slavery ... here on the west coast, some of the First Nations practiced it. Even if a group could prove that the historical punishment for rape or murder was the offender giving up all rights and being made to serve as a slave (even temporarily) -- nope. Not anymore.

Conversely, if the tradition of the group was that the chief's family was immune from prosecution -- no, they'd have to be accountable too. So if some bigwig's son stole a car and was let off without any punishment/restitution, that also wouldn't be acceptable. The goal seems to be fairness, and meting out equivalent responses -- re: the earlier concerns about different groups being treated unequally under the law.

These reforms got started because people questioned whether sending aboriginal offenders to jail was doing any good, in terms of "teaching a lesson" or helping the victims. That bit Iverglas mentioned above ... there's a lot of agreement among social workers that one reason why young native people often end up in trouble with the law is a combination of not being able to afford legal counsel, and feeling isolated from aboriginal and mainstream Canadian cultures.

So far these alternative approaches to justice usually seem to apply to "minor" stuff like property crimes (theft under xxx$, vandalism) -- that normally would be going to small claims court. Nothing said about the big-name things like assault or worse.

Any legal system covers a wide variety of situations -- and given that Christianity, Islam, and Judaism came from similar cultural roots, there are likely principles in Shariah that are similar to Canadian civil law.