Let's remove the blindfold from Lady Justice, argues Métis lawyer

Preliminary findings on the grounds of a former residential school in Kamloops, B.C. reveal the remains of 215 Indigenous children. The news cuts into an exposed nerve on the body politic of this country: the state of justice for First Nations people in Canada. Justice is not blind in Canada's legal system, argues Métis lawyer Jean Teillet. She says it needs to view Indigenous people fully to render justice fairly. 
 

* Originally published on May 6, 2020.

The image is iconic and has been with us for centuries — "Justice" as an elegantly robed woman blindfolded, serenely holding a set of scales.

"Symbols are very important," says Indigenous rights lawyer, Jean Teillet. "We talk about justice as being blind to race and gender and class — that justice is neutral and justice is impartial."

But Teillet is more interested in what justice is blind to. In a lecture she delivered at the University of Toronto Law School in early 2020, she methodically walked through the evolution of the image of Lady Justice and how the ideal of justice stands at odds with the reality of many Indigenous people within Canada's legal system today. 

Indigenous men represent 30 per cent of Canada's male prison population, while Indigenous women represent 41 per cent of the federal female prison population. Most incarcerated Indigenous women are also mothers.

"In Canadian justice we don't actually talk about justice. We talk about 'process'. We think if the process is fair, that equates to justice," says Teillet.

'Law is based on the use of force'

The image of justice as a set of scales dates back to ancient Egypt. 

"There's that idea that justice is a balance is an image that we will see over and over and over again," says Teillet. 

Skip ahead several hundred years to ancient Greece where the goddess Themis represented Justice.

"She's got the scales of justice in one hand and a double-edged sword in the other," says Teillet. "The double-edged sword of course is a not-very-subtle reminder that law is based on the use of force."

One of the earliest European images of blindfolded Justice is the 1497 woodcarving by Albrecht Durer, from the satirical allegory called "Ship of Fools." 

"The interesting part for me is the dichotomy between the text and the image," says Teillet.

"So the text says 'who fights like children tooth for a tooth, and thinks that he can blind to the truth.' But the image is that of blinding justice."

Teillet draws inspiration for her analysis of contemporary justice in Canada from Pieter Brugel's chilling etching of Justice. The image shows Lady Justice in the foreground, holding her scales, blind to the horrors of how justice is being practiced in her name. 

"Bruegels is inviting you to read the story of the law and the story of justice and ask yourself whether the mechanism of the law or the rule of law is actually justice," says Teillet.

In her lecture Teillet shared her own visual depiction of Justice, as she sees it applied to Indigenous people in Canada today. Her collage includes images of Indigenous people who have been killed over the decades by both police, and by accused who were later acquitted of their charges. Victims include: Dudley George, JJ Harper, Helen Betty Osborne, Coulton Bouchie and Cindy Gladue.

Teillet points out that Indigenous women are six times more likely to be victims of homicide — and that the number of murdered Indigenous women is on the rise. She also underscores the overrepresentation of Indigenous people in Canadian prisons — 41 per cent of the female federal prison population is Indigenous, while Indigenous women represent only four per cent of the population. 

Teillet refers to the work of Sen. Kim Pate to support her analysis. 

"I'm just going to quote her because I think it's a really good statement she says: 'query the value of enabling the creation of laws and policies that effectively criminalize poverty, disabilities and the resistors of colonization and then developing classification, assessment and correction tools that pretend that the individual members of those very groups of people who are grabbed, sucked or thrown into the criminal and correctional systems are there because of their planned, voluntary and criminally intended actions.'"

Solutions  

As for solutions, Teillet says the Canadian legal system now has to shift to incorporate restorative forms of justice.

"Indigenous people say the way to solve this is to not get engaged in the minutiae of what happened, but to try and look at how you're going to solve it," says Teillet, asserting that the roots of the problem need addressing.

"Our justice system never says: 'what should we do about this problem?' All we do is put out punishment and I think anybody in this room who's been a parent knows that punishment isn't actually the best way to change the behaviour of people. It doesn't change things. So Indigenous justice has a different idea of going about it, and quite frankly I think it's a better one."

About our guest in this episode: 

Indigenous Rights Lawyer Jean Teillet delivered the 2020 Morris A. Gross Memorial Lecture at the University of Toronto. The lecture is organized by the David Asper Centre for Constitutional Rights, focusing on topics of constitutional and human rights interest to the academy and the bar.

Thanks to the University of Toronto Law school for accommodating the recording. 

Jean Teillet's recent book is The North-West Is Our Mother: The Story of Louis Riel's People, the Métis Nation.
 

* This episode was produced by Nicola Luksic.