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3. The Nature of Criminal Justice

Understanding the fundamental nature of criminal justice is understanding the difference between criminal justice and other forms of justice. Criminal justice is characterized by the fact that it sanctions behavior that is seen as particularly harmful or dangerous. A largely distinct set of institutions exist to cater to criminal offences and the distinction between the two manifests itself in the strong vertical, public order and moral dimensions of the criminal law as opposed to the inter-subjective, horizontal and transactional character of civil law.

However, it is in the nature of the distinction between criminal and civil justice that it is an evolving and contingent one. This will be obvious from even a cursory examination and comparison of various domestic systems, many of which treat the distinction differently. For example the French mechanisms of victims constituting themselves as "parties civiles" means that a civil action can both trigger and piggy back on a criminal trial; punitive damages in the US show that reparations in a civil case can lead to a form of punishment. Moreover, the indigenous experience of the Western system may be that civil justice may be just as punitive as criminal justice, not to mention that indigenous legal traditions do not as neatly distinguish between the criminal and the civil.

In effect, the distinction between criminal and civil as well as administrative justice is constantly at risk of being eroded, as states seek to circumvent the particularly onerous protections they have set up within the confines of the criminal justice system. At times, punitive outcomes will be sought in civil cases (punitive damages); at others civilian penalties will complement (civil detention) or even substitute (civil forfeiture) criminal convictions. The net effect of such a phenomenon is to switch the emphasis from the accused's fault to the harm caused or the danger he poses. Discussions around these issues typically focus on questions of efficiency (is it more efficient to use civil rather than criminal remedies) and fairness (what of fundamental principles of justice?).

Canadian Forum on Civil Justice, BALANCING THE SCALE, Understanding Aboriginal Perspectives on Civil Justice, September 2006, Compiled by Mary Stratton

Most of the Aboriginal participants felt that there is no experiential distinction between the criminal and the civil systems of justice. Instead of leading to a fair resolution to a problem, involvement with the civil system is “part of the punishment.”

All these time frames and rules that don’t fit for our people. I mean I talked to someone today who - her children...were apprehended in [small town] while she’s here in [urbancentre]....They’ve been made Crown Wards; they make kids Crown Wards really fast now

Last year my ex trashed the place. He’s got anger problems. So I called the cops of course...and [then] I couldn’t believe it - [child services] started going to my kids’ schools, my work....I said are you here to help me? Or my husband with his anger?
Nothing.
dropped it....
I felt, “My God, are they checking me to see if I’m a good mother or not? That’s how I felt. More guilty.


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