These burning hearts in hell

I've been very busy.

For anyone with an interest in engaging with the most urgent and turbulent aspects of other people’s lives, criminal defence practice surely provides an embarrassment of riches. On a daily basis you deal with people stealing things like hairspray to fuel alcohol addiction, folks so poisoned by anger that they would hit the ones they’re trying to love, the most lost of the many domestic refugees who straggle between cities, reserves, cells and hospitals. Among these many will be the ones who hold your eyes a touch longer, who rub troubled hands on overused sweatpants, use your pause to start talking about the hanged siblings, or the hanging self. The few you might lurchingly find some patience for, to whom, however impotently, you listen.

Ricky's this kind of guy. He'll probably keep tumbling through the system like some lost sock, washed but forgotten. There's always an official reason, of course, for his stumblings back to jail, but the story Ricky knows tells of a different understanding. The shackles are on again because he was caught drinking cleaning products with the woman he was to be tried the next day for assaulting. Both are brought in for disobeying the court's orders, and sit next to each other in the dock. "Well", he mumbles to me, "we knew I was gonna go in anyway, so I guess we were jus gettin' together while we still could". Predictably, her reconfigured memory of the instigating event means the case doesn't go ahead, but the judge, perhaps realising we've done nothing to resolve whatever problems brought them here, struggles to relinquish jurisdiction. Ricky's asked what he'll do when he's back on the streets. "Dunno...break down, I guess". His sad honesty jumps the grooved conventions of the room. Our exhortations to change, to attend treatment, get ahold of life, everything seems suddenly dwarfed by an enormity of grief, squeezed out through monosyllables into the estranged familiarity of the court. Ricky gives me a sideways smile as he leaves, relieved, at least, to be walking out the door to something like freedom, with someone like love at his side.

The pain of others

So I was fired for the first time the other day. This isn’t entirely uncommon for criminal lawyers – each of us has dozens of clients, small bosses with concerns or characteristics we often can’t or don’t care to accommodate. It’s rarely easy to satisfy customers who can be quite literally caged up and craving for any source of release, but, even when their gripes are well-grounded, the inertia of institutionalised ignorance, docility, or despair, or sometimes just good ol’ Canadian decency, mean that they’ll usually just stick with who they’ve got. Once in awhile though, someone with a sufficient allotment of gumption decides that they can do a better job on their own. This happened to me in the basement lock-up beneath the courthouse, down where the day’s inmates are housed in loud pens and shallow segregation chambers. It’s anywhere – the yellow-washed walls are always gouged with the same vain or desperate scrawling, philosophies of pigs and pride and rats and every kinky thing that can’t be shoved or shouted through the thin openings between cells. There’s a share of silence down there as well, lodged in the ones who curl on metal shelves or open toilet bowls, roughened bodies hunched over like plucked birds. My client looked up at me through his own shell of exhaustion – he had been several weeks in custody by then, brought in after a bad encounter with a false friend who, he said, had tried to steal his money. “I was defending myself!” he growled when I told him that I couldn’t see any openings in the case, “I was defending my wallet! That’s my law – that’s the law round here!” It wasn’t going well – the man had a terminal illness, and I’d spent my time angling for a meeting with the judge and Crown in the hope that his punishment could be tempered with mercy. But it had taken too long, and he was clearly seeing me as more barrier than bridge. “You’ve done nothing, no one’s listened to me in all the time I’ve been in here”, he moaned. “Not once has someone asked me for my story. And you keep on adjourning it, and I can’t spend another day in here!” It was true enough – training and experience have already taught me, for better or worse, to strictly manage people’s inclinations to hold forth in court – judicial ears, I learn, are rarely open to such ‘unseemly outbursts’. But what I might gain in decorum and (perhaps) eventual outcome, a man like him loses in autonomy. And at this point he obviously felt he’d lost too much. “Just get outta my way. This is just between me and the judge and the Crown.” I was there, though, when he raised his voice from behind the crook’s partition and asked, with remarkable expectancy and poise, “well, how about you just drop the charges, ok?” I was one of those who hid their grins at this, such impotent insolence.

He called me back two days later. Some times are too tough to go through alone, even if your only resort is a lousy lawyer...

life enfolds

The ground floor departures lounge at Thunder Bay’s international airport (so designated solely thanks to Minneapolis) shelters a colourful assortment of migrants. Everyone here is oriented north: old kookums wearing kerchiefs and wrinkled grins, burly workers for the Musselwhite mine, Blackburied consultants and of course a couple of heavy-lidded lawyers, ties prematurely loosened under layers of suit jacket and down. It’s hot and I’m bothered, after two straight days of periodic announcements regarding flight 920’s having taken on a further delay (still, as one veteran reminded me, why would anyone want to fly when the pilots don’t?). Finally, we’re ushered forth, with the caveat that if it’s still too icy to land in Sioux Lookout they’ll have to bus us in from the next best option. But it still looks like Fall on the shores of Superior – we walk towards the little plane on dew-slick tarmac, two Anishnabek men ahead of me pausing to gesture up into the rose-grey morning, where a long V of geese is slowly opening in flight. One of them looks back at me and chuckles, us plumeless passengers standing in mute and mutual appreciation of that other fluency. We cram ourselves into the narrow fuselage, and a few hours and two airstrips later I am disgorged into winter.

Smoothly executed, this court circuit would have been parsed out over three days, but fog and a foot of snow have compressed it all into one frantic afternoon. The school gym’s booked for floor hockey at six, so we take no more than a necessary few minutes to peruse someone’s Rubbermaid full of moccasins before the judge shrugs on his robes and proceedings begin. The gallery of locals has already taken full advantage of the movable seating arrangement to push their chairs back against the far wall, enforcing a divide that needed no extra illustration. We do our business in whispers in the corners, or faux-authoritative monotones near the microphones. Kids whistle and shriek on the snow-slopes just outside.

My point here, though, is not the hurried and ragged travails of another court trying to get through another list of cases, but the poignant normalcy of the context this hampered system operates within. My court work done rather early, I spend the rest of the day in another client’s mom’s kitchen, sharing veggies and dip over the pages of his case’s evidence. Eventually our eyes cross and he takes me around to meet some family, the huge supercab shuddering over snowy ruts and shaking to the strangely relevant lyrics of Tupac Shakur. In sixty minutes we’ve pulled up to one uncle, two cousins and a half-sister, been waved over by a grandma who spoke no English (and her grandson no Ojibway), said hi to mom and swung past the airport no less than five times. We’ve delivered two bags of storm-delayed mail to the closet post office, flung four old summer tires up out of anyone’s way, and helped grandpa haul his store’s supplies from charter plane to plywood shelves. Milk, meat, eggs, candy. Laundry powder, toilet paper, soda pop, flour. Many hands blur the work. “When the lake freezes good – should be one, two more weeks – then I’ll take him out to get the wood”. One evening-thin slice of three generations of a single, normal, remarkable family practicing the difficult, precious alchemy that we’re all, in our various ways and places, intimate with. My client drops me off for the runway again, and we’re gone.

Changing the guard

At about nine last Friday night, in a fluorescently-lit, semi-subterranean courtroom in a very small town, with the first snowflakes of a long winter batting softly against the windows, a quiet, but quite significant change took place in my experience of law. It had been a long day for all of us, gruelling enough for the cops, counsel, and court staff for whom this was a job, undoubtedly much more so for the mother who had flown down from a remote reserve with a large chunk of life savings in her purse, as for the son scrunched up in the glass-walled prisoner’s box, a few metres and fifteen months’ removed from her embrace. We were waiting for the Justice of the Peace to return with her decision on whether this young man should stay in a far away jail until his trial, or return north to a half-forgotten home and a family that never could. I honestly had little expectation the latter hope would be realised. The charges were extremely serious, and the guy was already working on the third page of a record that shed light on a lost upbringing, and will likely shadow him forever. Classically, chronically untrustworthy. The Crown had all the power of commonsense presumptions, and all we had was a stack of sweet letters from kookums (grandmas), uncles and elders who wanted him back, and a mother prepared to sacrifice all she had for the chance. I’ve done more than a few bail hearings now, and I know that’s not enough. But the JP, the first aboriginal Justice I’ve appeared before, took in the Crown’s damning evidence and forceful exhortations, heard that mother’s half-whispered testimony, accepted the letters and the pile of previous decisions that I half-heartedly presented, and weighed everything against the requirements of the law while the rest of us waited on into the night. One, two, three hours – the temptation to throw a professional hissy fit was almost overwhelming. I paced the snowy streets, and cancelled my flight back, and left increasingly cranky messages on my wife’s answering machine. All this for a ruling I figured was a foregone conclusion – he’d stay in jail, the elders would spend another winter without him, I’d go home and life would go on. And then, finally, catching us splayed out in various un-decorous positions on the wooden benches, the JP returned. And she released my client. To return home with his mother, as soon as the weather cleared. To stay in his community with the elders in whose words she put so much weight. To do what he said he was going to do, when I asked him questions about school and service and keeping court orders. To honour his family’s sacrifices for his freedom, however brief it would be. That JP spoke directly to that young man, and to me, and to the rest of us half-flabbergasted others, when she said that she took notice of his heritage, and the importance of returning him to his culture, his community, despite all the risks and challenges she recognised in doing so. Even though this was a 'win', some sick, cynical wind swept through my mind, already old with broken promises and the rigidity of a system whose rules had been so suddenly reinterpreted. And I felt embarrassed and excited as well, that my advocacy had been so hopeless and hollow in relation to this young man, that it was not my, nor the Crown’s, appeals that had been heard, but those of a gently fighting mother, and a community that could only be present in paper and in the estimation of an authority who knew and respected it far more than I had. And, I thought just then, with neither malice nor accolade, she could only have decided so because she was aboriginal, and she saw, heard, understood things that us others did not.

Whether I’m right or wrong – and whether that JP was right or wrong – this moment remains very significant in my mind. I know that the justice system, like so many other public faces Canada portrays to itself and the world, desperately craves a quality we call diversity. And I know that, if only (and unfortunately) because the criminal law deals so disproportionately with aboriginal people, it especially wants and needs native folks among those making its decisions, embodying its evolution. But, because I felt the shock and even disdain that rippled through some of us last Friday night when that particular decision was rendered, I wonder about our capacity to allow and embrace real diversity. Not just of faces, but of backgrounds, values, the deeper tools of law’s creation and application and interpretation. Such diversity does not sit easy with any empirical, monolithic expectations of law. It's an interesting, dizzying, unpredictable challenge - and it feels very necessary.

talkin' in the free world

If, for whatever reason (such as being my mom) you follow this blog closely, you might notice that I’ve removed some of my previous posts. It’s not something I really feel good about doing, but I feel much worse about the potential for offence or misapprehension that may, without intent, take place in the process of writing about people and places whose truths I see neither fully nor completely. The reality, as someone much wiser than me in these ways explained it, is that the court’s ‘visits’ to the territories of the northern First Nations are akin to invitations into another’s home, and I wouldn’t abuse my privilege as a guest by talking to strangers about the colour of my hosts’ walls or the state of their kitchen. This is all the more so considering that this work affords me such a slight and distorted perspective, my visits head-spinningly brief and, perhaps necessarily, focussed on what is and seems wrong wrong wrong rather than on an ever-richer whole.

But while I must acknowledge the above, and determine not to tread on toes to which I haven’t been adequately introduced, it seems equally true to me – and this the point of this entire blog – that all of us are poorer if we do not seek to test the integrity of our connections, to bolster some and cut off others without first and always asking questions about who’s heard, who’s hurt, what actions and inactions mean. I admit that I don’t yet know much about what allows the court in to spin its authority every few weeks or months, whether there are nuanced arrangements and permissions behind our periodic arrivals in those small gyms and community halls. I don’t know what’s going on behind the scenes to make our presence rarer or irrelevant. I suspect, though, knowing what little I do about the powers and presumptions held by our dominant politico-legal paradigm, and reflecting on the little experience I’ve had as one of its masks, that the court is somewhat more and less than an invited guest in our obliging host nations’ homes. “It’s not a justice system,” an Indigenous leader told me bluntly, “it’s a legal system, sure, but it’s not a justice system”. I hear responsibility in these words, and a massive challenge too.

So I will try to stop writing about the specifics of the communities we go to. I am not an appropriate reflector of these places, which I hope is absolutely clear. But I do see an urgent need to keep writing about the more overarching aspects of the criminal court system’s manifestation here, and how, most broadly, our inter-national country can understand itself in this realm. I’m new and naïve, but this is my work, and quite possibly yours as well. We need to talk.

The blood of monsters

Do not doubt that the justice system is shot through with logic. It is a logic that dictates that, since something happened in Sioux Lookout, my client is now housed in a Kenora jail, each week shuttled between courthouses in three different towns, but always sent back to that cell, simply because our logic finds no other appropriate place for a suspect homeless man to go. This same flow of consequences finds me boarding a small plane under the pre-dawn moon, my mind aflood with images of this man, exhausted, fumbling, mumbling for an hour in a bright interrogation room, being skillfully led by a crisp cop in a tie to talk about what may have happened in his haze, behind a dumpster in Sioux Lookout. Logic that extracts his words into a single typed sentence in the police report: "eventually the accused admitted...". But this tight, authoritative stream of consequences hits its first real eddies, for me, in a small partitioned chamber in the Dryden lock-up. It's here that I first meet my client after representing him for a month, after these weeks of zipped-up investigation papers, halting phone calls and repeated delays. Logic's narrative slowly unspools to human.

It’s hard to speak and listen in these places. A thick, scratched and smeared strip of hard plastic separates me from a worn man in old clothes, and we must frequently bob our heads down to the one low grate, in odd pantomime, to exchange stories. Mine starts out straightforward: it’s time to decide, I tell him, we’ve gotta usher this case along. I know you want… no, they won’t let you… it’s gonna be hard, because of what…no, I haven’t talked to…well, here’s the law… . An echo sounds from a recent meeting, this one held in a nice office thirty steps away: “You realise he’ll be an extremely poor witness, right?” the Crown quite logically responds when I suggest this man requires a trial, “I mean, the guy’s a street drunk!” True, this truth, obscuring truth. His tale weaves, through the plastic glass, a wandering novel told in the minutes before a guard snorts through the door, if this meeting needs to go much longer. I ask unnecessary questions.

Because it's poetry month

Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
Tomorrow, yesterday, today.

Law is the wisdom of the old
The impotent grandfathers shrilly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.

Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good-morning and Good-night.

Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more
Law has gone away.

And always the loud angry crowd
Very angry and very loud
Law is We,
And always the soft idiot softly Me.

If we, dear, know we know no more
Than they about the law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the law is
And that all know this,
If therefore thinking it absurd
To identify Law with some other word,
Unlike so may men
I cannot say Law is again,
No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.

Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyway:
Like love I say.

Like love we don’t know where or why
Like love we can’t compel or fly
Like love we often weep
Like love we seldom keep.

- W.H. Auden (1939)

Where the cars have no plates

The (now defunct) Law Commission of Canada's Report on Aboriginal Peoples and Criminal Justice was delivered to the Federal Justice Minister in 1991. This document, an effort by dozens of academics, jurists, and indigenous leaders to grapple with the obvious injustices of the Canadian system's interaction with Native peoples, is rife with alarming statistics and hopeful proposals. The commissioners were able to state plainly, with conviction that for meaningful justice to re-manifest in Native lives and communities, there was simply no other way: "The time has come to co-operate in the creation of Aboriginal-controlled systems of justice...". The time has come. 1991.

And so here I am, reading these well-meant, well-thought, nigh-well urgent appeals for a country to sit up and take notice of its complicity in the systemic degradation of the individual, communal, and national rights of Native peoples to own and understand that most crucial, ephemeral, palpable human concept: justice. And here I am, still participating in a justice system that "delivers" itself into communities that, at best, endure its intrusion, withstand its ignorance. In so many ways, we assumed we knew what was best for the cultures we enclosed, and in so many ways we were wrong. The evidence, if we can bear to admit it, is obvious. The question, at least in relation to justice issues, is why we persist in such arrogant error.

I think I'll spend my life with this challenge, although hopefully towards a dissolution of our arrogance, a de-coupling of our (yes, still) colonial need to control and monopolise the concepts of governance. But as the 1991 commissioners now know, and I'm uncomfortably learning, even good ideas are pretty cheap currency if we don't spend our best selves upon them. That's why I feel such a feverish need to tell these small stories, from this frontier, for they echo the truth to a country that for the most part still neglects to listen, until the most egregious tragedies force a moment of notice, and, all too often, fallow, unfortunate finger-pointing.

We’ve thusfar only given credence to appeals to formal equality in our justice system’s evolution. Thus, all Aboriginals are presumptively entitled to our laws, our rights, our ideas about how to take the necessary steps from allegation to outcome in justice matters. We’ve constructed elaborate and expensive mechanisms to bring the institution closer to (by our eyes) remote communities, the places where our roads don’t go. And yet, for all our single-minded efforts, it’s mighty hard to sense that progress has been made.

The northern reserves, at their worst, are unfenced gulags, composites of nowhere. Who wants to live in an immovable trailer with a dirty water tank lurking in its biggest room and a dozen relatives interminably crashing in the others, even if it is "free"? Who wants to boil their drinking water every day for nine years, disguise the leaden taste with grape Kool-Aid? Who wants to die too young of violence or diabetes? Who wants their most important decisions to be mandated or mediated by utter outsiders, folks who flit in and out like bossy fairies? The answers to these questions, at least, seem clear. And we must try and feel the truth of one another, or die. But I admit of very few other certainties.

the cutting edge

What Tom meant, I think, was that his community – and the individuals within it – have little control over how justice ‘works’ for them. A couple of planeloads of lawyers and court staff fly in every month or two, spend the day in a re-arranged community hall, and make decisions about who’s guilty of what crime, whose case can’t be heard yet, who goes to jail, who stays behind. How are these decisions made? Tom perceived – correctly, for the most part – outsiders meeting in private, strange doctrines debated, facts bartered and bargained for, shortcuts taken. All this happens (I know, because I’m one of the outsiders) according to quite a well-developed legal, logical and ethical framework – ours is a system that’s evolved in tinkers and increments over several centuries. As long as everyone plays their roles properly, the majestic mechanism of the law is maintained. So why do both Tom and I sense that it’s all so wrong?

I believe that the problem lies in the enduring ‘outsider’ nature of the work we’re trying to do. Here’s an example: I have a trial tomorrow, in a community about 700 kms north-west of Thunder Bay. I’ve never met my client, or even spoken to him – we don’t even share a language. All I have is an inch-thick folder detailing some heinous offence he supposedly committed, and the clues to a deeper tragedy buried within it, words like “sniffer” and “seven months pregnant”. Setting matters down for trial is a strategic business in northern reserves. Even if you are inadequately prepared, entirely unconvinced, or horrendously incompetent, chances are that Crown witnesses won’t show up, and the case will collapse. Hooray, a victory for the defence. But why does this happen with such shameful frequency? Again, I believe it’s because we are outsiders, and, as professional as we may be, we really don’t know what we’re doing when it comes to helping justice manifest in Tom’s community, and the few dozen others we pretend to serve.

Holes that make the net

Last week I started working as a lawyer again, this time with a couple of senior counsel known around Thunder Bay as the “left wing fringe”. Mostly criminal defence, plus Aboriginal Rights litigation. I’m half in the office working on appeal arguments, and half in tiny planes and tiny towns trying to make some kind of positive difference in the lives of people clutched up by the overgrown fingernails of the Canadian justice system. It may be One World, One Dream, but it’s hard to believe that the One Law, One Society rhetoric is working for the smaller places and nations our country encompasses. Already I’m struck by how little I’ll be able to accomplish, at such great cost.

Pickle Lake bills itself, on the wonky wooden sign on the highway into town, as Ontario’s Last Frontier. This description is accurate insofar as it’s the furthest-most point most people would want to drive in the province, before the road sinks into dust and muskeg, permitting only frozen-season forays further north. Other than that, the slogan is merely another of the many signals that we don’t understand the full reality of life here. Ontario’s last frontier – and far beyond – also happens to be the centre of the universe for the Ojibway and Cree nations whose communities dot the trackless map of the north-west interior.

Mishkeegogamang, also known as New Osnaburg, or Oz, sits about twenty minutes south of Pickle Lake, its reserve broken in half by a government surveyor’s 1911 decision to exclude a resource-rich island from the community’s scant treaty settlement. They’ve spent the past several years – and about seven million dollars – trying to convince the Crown to give it back. “We’ve read the Land Commission documents,” my tour guide grumbles as we drive up to the gravesites that aren’t theirs anymore, “they told ‘em not to give the Indians any lands which might have wealth”. Tom Wassaykeesic is one of the five band councillors here, interrupted in the middle of serving his grandkids lunch by the local probation officer with two curious lawyers who want to have a look around. Fifteen minutes later he finds us at the Nashnawbe-Aski police station (basically a mobile home with a cell-block stuck to the side), honking his horn to announce his engagement as our chauffeur. There's to be quite a lot of honking over the next two and a half hours, Tom’s way of greeting folks sitting on their porches or wandering by on the washboard roads. We pass several cousins and a brother while he points out a few of the highs and lows of Mishkeegogamang’s situation.

Some things hardly need to be said, just somehow understood. The main reserve is scattered with a few two-storey vinyl-sided home (“we built ‘em when there was money for that thing”), but otherwise people live in long narrow trailers beached on concrete pads. Many of the small windows on these overloaded homes were broken. Tom speaks bluntly: “drunks, they’re the ones who just break the windows like that. Got no accountability. All the band money is going to fix them things. Some people don’t care.” He points at a couple of places where houses should have been. “That one got burned down. They had a fight, those people, so they burned it right down. And that one we just use for a basketball court.” It was the only paved spot visible, at least until we continue past Bottle Hill along Sandy Road and catch sight of the beautiful school, a multicoloured four-winged bird perched proudly at the edge of the Albany river. Tom's obviously just as proud, and leads us out to skirt the perimeter, peering in through blessedly unbroken windows at the section reserved for the youngest kids, the classes for grades 3 through 10, the soaring central space where hot lunches are served and children can sit in a great steel-and-pine tepee beneath flags and old photos commemorating the signing of Treaty 9. The place breathes a sense of what kept promises (and enough money) can accomplish.

Finally, after introducing us to the guy spinning Christian country classics on the community radio station, showing us where the bones of ancestors sometimes wash up, and indicating Mish’s mandatory relocations over the past century because of the lake’s hydro-induced flooding, Tom drops us back off in front of the police trailer. Along the way, I get a chance to ask him, especially since he’s the councillor in charge of justice issues for the band, what he thinks about the court that flops down in Pickle Lake every month or so. “Never go to them things anymore,” he spits with disgust, “they already have everything all figured out even before we ever get there.”

Learning Home

The universe is a circle. Sylvia has chalked it on the board, one round disk floating on a background still ghosted with the notes of a previous lecture. Just a circle, the one thing about existence, Sylvia tells us briskly, that is absolutely certain. Her elders taught her this, and now she is convincing a group of mostly 20-something, mostly non-Native listeners who crane forward in plastic chairs attempting to catch and comprehend this Truth. Blending the confidence of a tenured professor with an encompassing, grandmotherly warmth, she draws two more diagrams, one a square box with a circle inside it, the other a circle encompassing a smaller box. “You see, if it weren’t just one circle, then what would this other stuff be?”

Sylvia’s talk is entitled “Life Cycle Responsibilities”, one of a dozen or so sessions that comprised this year’s Elder’s Gathering at Trent University, an unadvertised, unpretentious convening of Indigenous wisdom from across North America. She has come to teach us about the eight stages of being human, as understood by the Mohawk. Four lines soon pie the circle, then Sylvia’s chalk curves the bottom of another orb, just above the one she’s divided into wedges. “This is the spirit world,” she indicates, dotting a path between it and the human sphere. “All of us begin here – we are spirit before we are born”. Our grey-braided, blue-eyed teacher points to a woman in the audience cradling an infant: “that baby is so important. The couple has to prepare for it. They’ve got to understand what it means to invite a spirit down. They should be ready. For two years, according to our teachings, they should be getting ready.” To help us understand, Sylvia adds a word or two inside each of the eight wedges in the central circle, which represent the stages of human experience, as well as our corresponding responsibilities as we move through them. As this magnetic Mohawk auntie illustrates, via legend, anecdote, and the symbol of the circle, to be created is to take part of a process that involves and requires all, excludes none: the responsibility of infants is joy. For toddlers it is leaning about safety and environmental awareness. For children it is truth. For youth, rejection. For young adults, the work of the people. Parents are to provide. Grandparents give life teachings. And elders instruct the people’s spirit.

I lean back in my chair, uncertain how to either argue or accept such a beautiful and intriguing evocation of life’s gentle, relational purposes. What about when stages break down, are missed? Do we have to go through them all? How can Sylvia not sense our civilisation’s awful tendency to puncture and pollute the circle, especially as an elder in a tradition that holds it sacred? I don’t ask, but she responds to my anxiety with another figure on the board, this time the outline of a human torso, riddled with ragged holes. “This is what happens when our souls are wounded – you can’t see the holes, but there they are.” Each stage is essential, but if we are not taught properly, not loved as we are called to be, they can be missed or misunderstood. Sylvia startles me with her diagnosis. “We have to be careful of the language we let children learn. If we are confused, so they will be too. One language, that’s best.” I sense she’s not using the word in the linguistic sense. But perhaps in implicit recognition of the damage inherent in this babbling age, she turns from the circle’s pleasing ideals to discuss ways of healing its breaches. “The holes, they stay with us, you know. They don’t easily go away. If a woman had all that she needed, she wouldn’t be fifteen and giving away sex for a ride into town. A man wouldn’t be trying to prove himself by making babies and leaving them for her to raise. And so they miss such an important stage, and all of us miss what they can give us, these young people who are going straight from being youth, to being parents, without taking the time to prepare.” Yet, Sylvia concludes gently, we can always go back to learn the things we missed. And we can always practice healing, no matter how many holes we’ve accumulated. That’s what an elder’s teachings are about.

I’m not indigenous to here. Both of my parents trace their lineages back to Europe, and if we like we can get on planes and return to lands where our ancestors farmed, fought, or built ships and sailed away. Those lands, of course, in both demographic and environmental terms, have radically changed. They are no longer identifiable as home for my parents, and they are certainly not home for me. Home, as near as I can articulate it, is located somewhere within – or perhaps all over – this massive country, this land symbolized as Canada. There’s lots of room, but I really have nowhere else to go, not if I expect to nurture and develop that most essential human treasure, that warm certainty of belonging. Somehow, here’s where I have to find it.

But if I can readily identify the need, the reality of its lacking follows close behind. This is not a simple place to call home, not if I expect to share in the concept with a rich spectrum of others, with other languages, histories, and ideas about what’s required to make it work. But I’m convinced that, unless I’m prepared to endorse a competitive, zero-sum, and ultimately brutal notion of belonging (more for me means less for you), I have to open myself to these different experiences, and try to understand the particular struggles of other people who co-exist in this time and space. As a non-indigenous Canadian, there seems to be no more crucial place to begin this exploration than by listening to the land’s first peoples. It’s not merely a matter of who was here first. It’s about mutual recognition, and a long foregone rebalancing of wisdom. For generations, even centuries, Aboriginal peoples have been forced to acknowledge, not merely the existence of arriving European cultures, but their authority, their ascendancy, their power. It’s resulted in a serious, deeply scarring imbalance in the relationships we’re living out as a blended nation, and there’s a long way to go before we reach a healthy equilibrium. But I sense the way forward. This conference tells part of the story of how, and why it matters to all of us.

Beverley Hungry Wolf is Blackfoot, from the rainshadow hills of southern Alberta. Standing in the warm window-wrapped room within another oval of students, her childhood stories are told through the searing, lucid senses of one whose own eyes had been nearly blinded, whose tongue had been nearly cut out.
“Boarding school made a very strong impact in our lives,” she begins simply. “We were raised by priests and nuns. Such a cold place, a very cold place – we couldn’t even touch our best friends. I got into trouble when they asked me my name. I said I am so-and-so’s daughter, so-and-so’s granddaughter, but…” She contorts her body as if she’s grabbing a small cuff of neck, and channels the mad authority of a teacher into a suddenly enraged “I din ask you who your family was girl! I asked for your NAME!!” The charged air presses against my skin, and I wince a little at the violent re-enactment. This was Beverley at five. Mercifully, she doesn’t stay there, but invites us strangers into Blackfoot ways, one hand moving like a feather, her fingers tracing long ways home through the sunlit air. “Blackfoot girls stay close to their mothers. The English thought we were strange – oh we thought they were so strange! We never had aunts or uncles, only mothers, fathers, brothers and sisters, grandparents. Everybody was your relative back then. I remember how we used to visit – go out for a month, put up our camp and visit!” Beverley, like most elders, is a mother, grandmother, burier of the dead “six in the past two weeks”, keeper of traditions and teller of stories. She is absolutely honest and sincere in what she tells us, even though so much of it can never be measured by the narrow barometer of fact. To be an elder is to tell the truth. But listeners have to, in turn, accept and honour those truths, or they are as worthless as X’s on the old treaty papers. This is not a passive relationship. Listening becomes a partnering in a dance, or an accompaniment along a path that would otherwise be overgrown, closed off. Although Beverley stands before us without wavering for almost two hours, these old people are no longer physically sturdy – most of what they teach, except the visiting, and the gentler protocols of ceremony, is for others to take up and practice. They realise that it’s no longer their job to sustain cultures, but rather inspire and guide the ones who will.

And somehow, even though most of us who listen are not Mohawk, or Blackfoot, or Indigenous in any direct sense, that gift and burden is being passed to us as well. I remember being struck by the truth of what a Dene friend told me years ago. “It’s not only us who have treaty rights – your people signed the treaties too. You’re our partners.” An easy thing to forget, when the land, the water, the type and style of government, all appear to be so obviously and uniformly ours, and it is only those few Native throwbacks who seem to be standing in the way of our democracy’s onward march, reminding us of what sounds like strange, ancient history. But we shed such wisdom, and forget foundational promises, at our collective moral, ecological, and spiritual peril. Those ragged holes that Sylvia drew for us don’t only manifest in wayward Mohawk youth.

Near the end of the conference, a delightful Six Nations’ elder leads us anew through the familiar seasons in this part of the world, from winter (“a time for white foods: white corn, white bean, ash, beavertail soup”), to spring (“we purify ourselves with the maple sap. Drink four gallons right from the tree!”), through summer (“we’re berry people. It acidifies the urine – fights off bacteria”), and on again (“burdock root, the first year it grows. That’s your fall medicine”). Is this knowledge, and the culture that knows it, useless, now that we can all drag our bodies eighty years with processed foods and pharmaceuticals? Now that we can all mumble or bellow in English, and program our time by TV schedules? Powerfully I feel, the answer remains no. No, even after years of erosion, co-optation, and neglect. No for all of us, Indigenous or not, who left that conference hall inspired by the gentle, crucial message of these elders to keep recognising one another in the sacred space that this country still blessedly cradles. As surely and enduringly as the land itself exists, it seems that land-based peoples will remain those most able to channel its mysteries, translate its stories, guard and be nurtured by its gifts. But how can I, stranger, settler, home-seeker, best accept and cherish these truths I’m told?

It seems clear, as I blink out into the re-interpreted southern Ontario sunlight and get into my car to drive back to the city, that we’re not all called to actually live these traditional indigenous ways. I hold no personal membership in the nations that patchwork this earth, though I – and all of us, from generous elders to eager urban youth – belong to the country that contains them, that might yet kill them off or help them thrive. As such, all the wisdom-strewn stories shared during this weekend hold transcendent relevance, even if we never drink spring sap or attend a sunrise ceremony.

One thing about wisdom: it ain’t exclusive. The universe is a circle, and, know it, like it or not, we must hold our differences within it.

Caledonia: The Weight of this Land

Hazel’s greying, elbow-length hair embraces the huge red ‘MOHAWK’ sloganed on her sweatshirt. Her blue eyes strongly hold my own, and her voice is mostly measured, but passion trembles some of the more important, battleground words, words like ‘sovereignty’, ‘colonialism’, and ‘hate’. Words like ‘ours’. Hazel is one of the leaders and spokespeople of the Six Nations’ reclamation of an ugly patch of scrubland and half-finished houses, a contended acreage that’s become synonymous with Caledonia, and representative of one of the most urgent challenges this country might not realise it faces.

A big guy who calls himself Whoodat steps in front of my car as I turn off from the highway to where a tarp-and-plywood shack and a maze of concrete blocks sits between the skeletal gates of the Douglas Creek Estates residences. He and a couple of others are taking their turn patrolling the entrance and stopping every new arrival, while a couple of OPP officers silently watch from a car parked across from the ‘Welcome to Caledonia’ sign. They haven’t heard I was coming, but after a few minutes of discussion on his walkie-talkie, Whoodat comes back to give me the go-ahead. “Anyone with an open mind and peace in their heart is welcome here,” he says in the same serious voice he had used to question my purpose.


“I own nothing.” One elder bluntly answers when I thank him for the wisdom he’s just finished imparting to a group of us newcomers who are here to experience first-hand what this controversy’s all about. “It ain’t mine – all things belong to the Creator, y’know?”

I think I do know, but I hold that understanding with a mind that’s also babbling with contradictory truths, facts, ways of the world. The principles at stake dwarf the few acres of would-be development that compose the occupation site. People here are struggling for a fundamentally new relationship between themselves and the Canada they feel has long oppressed them. They are also articulating a profoundly different vision of how land ought to be used by the humans who live on it. It’s attracted a curious blend of sympathisers. Sitting around a fire listening to a well-spoken white man explain, with intricate reference to centuries-old treaties and constitutional documents, how he and his friends are extricating themselves from the Canadian corporation, I have the distinct feeling that I’m perched on an outer ring of reason. So what if that ‘Name’ on that ‘Driver’s Licence’ isn’t the ‘living, flesh and blood’ person who’s standing in front of me, he’s still gonna be in a heap of trouble if he gets caught driving around without it. But the others near the fire- two black women, a converted Sundancer from Virginia, and a handful of Six Nations’ folk, seem able to accept the man’s version of reality with much more equanimity than I can muster. “It’s all assumptions and presumptions”, one of his friends says for the second time in five minutes, speaking of the ‘country’ called ‘Canada’ where I was born and raised and locate a great deal of my belonging. It’s not that they have anything wrong with people who identify themselves as proud Canadians, of course, it’s just that they reserve, and are in the midst of trying to claim, their right to be sovereign of its cloying possessiveness. A hard thing to do from the inside, to be sure.

These men are a few of the supporters who’ve come to feel the air of righteous struggle that stiffens the flags on the reclamation site, from the Mohawk banner fluttering from would-be suburban lampposts to Six Nations’ insignia crowning transplanted trees, to solidarity flags from Palestine and Lebanon. For me it’s an exhilarating, even intoxicating atmosphere, but one that many others have been breathing for a lot longer than one day, or 897 (that’s how many days the occupation has been going on as of August 11, 2008). I imagine, from the matter-of-fact way in which our hosts explain their position and schlep sacks of potatoes into the makeshift cookhouse, that any rush that comes from confronting Goliath has long since dissipated. If anything, though, this plodding tenacity seems a sign of their resolve to remain, both on this site and as a self-evident nation. For many I meet on this Sunday in Caledonia, there’s simply no other approach to take.

A sweet elder starts speaking in a gentle, tremulous voice about some of the opposition they’ve encountered from people living in the town. “They ask why can’t we just be like other normal people. Why can’t we pay taxes and live like all the rest?” “Well,” she answers herself, “that’s spoken like a person who’s never lost anything.”

There’s a consensus among those gathered here that they have lost a great deal, more than they can ever get back. “It’s not about kicking people out of their houses” Hazel tells us, “we just want to live in peace and give our grandkids a chance to claim their heritage”. Asserting this claim, in large part, is a symbolic way of saying “No more” to the continued indifference or ignorance on the part of Canadian governments and the public who elects them.

And for that afternoon, around the fire, I felt the soundness of the argument, the fundamental claim to renewed inter-national respect, even though it’s voiced across a wide and often confusing spectrum of particular perspectives. Some I spoke with didn’t consider themselves Canadian at all, while others proudly sported maple leaf tattoos alongside those of the Eagle Clan. Some want to throw down the shackles of an illegitimate state, some want to see this materialist ego-zone turned back to the nature that once stretched across traditional Aboriginal lands. Everyone understands they can’t go backwards, but all are fed up by a forward march they feel both demands what they value and excludes their belonging.

I ask Hazel why those on the site don’t leave, now that the government has committed to negotiating a resolution to the dispute. “We remember Oka,” she says, “we remember Ipperwash. Those lands were put in trust, and what happened? Still, no progress has been made. So we need to stay here until we can be sure.” Looking around the desolate acreage, Hazel turns to something that has especially troubled her and the other Six Nations’ elders. “They came in here, they bulldozed all of the topsoil, maybe three, four feet deep across all of this land. And then they took it away. When we buried our ancestors here, we didn’t dig them six-foot graves. We just covered them up. But now all that soil’s gone, and they won’t tell us where they’ve taken it.”

Who owns these treasures, who controls this mud? If the answers come back as nothing else than ‘individuals’ and ‘the democratic state’, if indeed these words translate to nothing else but ‘money’ and ‘numbers’, then there is no room here for small nations, and no ear for that which does not speak.

This is not the constitutional promise of the Canada I was born into, nor the humble trail towards its realisation that I ache for us to walk. Somewhere missed within the marching orders, the official narratives that suggest settlements are just a matter of time, the low rumble coming from south of Caledonia seems to voice a more enduring, widespread dissatisfaction with what has happened in this country, and what its path will likely be. And though I still believe in promises, it seems we face a contradictory choice of which to keep.

Jacks in the Box

A colourful, cartoonish eagle is painted on an otherwise barren cinder wall in the worship centre at the Barton Street Jail. Underneath its outstretched, soaring body is a string of initials, presumably those of the inmates who carried out the bold notion of putting one of the world’s most symbolically liberated creatures on the blocks at the bottom of their prison. It’s not a fantastic work of art, but whenever I see it I’m reminded of the powerful human urge for freedom, which seems to abide through even the most frustrating of circumstances. Though coming here week after week, doing the same things and seeing the same faces, can easily sink into mindless routine, it’s crucial for me to remember that prison’s no place to belong in. In many ways, in moods washing from angry to patient, hopeful to terrified, everyone here is trying to break out. And it’s a need – essential, elemental, universal – that seems to operate independently of whatever just or absurd reason for why a person might be locked up to begin with. This dissociation – between why a person may be in jail, and the prevailing motivation to get out – causes one of the many tensions that sprout out of the stacked rocks of the incarceration matrix. Because it is the collective who, officially in the service of public and individual good, sees fit to box up ‘bad’ people, we bear a large amount of the responsibility for the consequences of our doing so. This is where our civilisation rubs rawest, and untended wounds fester unseen.

I deal with the overwhelming need for freedom in two rather contradictory ways. As a lawyer, I come to Barton Street to see clients who (as I mentioned in a previous column) are considered ‘unacceptable risks’ to be allowed to remain in the community while their cases are before the court. I meet with them across scarred tables in small glassed-in rooms, one breath removed from the noisy pods of their spare, highly-surveilled lodgings. Not surprisingly, getting free is a major preoccupation, so we discuss the legal strategies and options best designed to reach this narrowly-defined goal. The antagonist, of course, is almost always the “other side” that put them in there, usually vaguely symbolised by the court, the system, or else some wretch who lied or snitched to the cops. At least partially because of the setting, it’s a struggle to handle anything more during these hurried encounters than the barest bones of a particular charge, which is circumscribed and set apart from the much deeper who’s and why’s of where they are. I feel like each of us is programmed, in this place, to approach problems (“hey, you’re in jail”) and solutions (“get me out of jail”) in the crudest, most impoverished sense. Creativity and self-empowerment, for men most desperately in need of them, seem muted, far away.

But blessedly, I have another job in prison, a volunteer gig on Monday nights leading small groups of so-called Y.O.’s (young offenders) in yoga and meditation. There’s lots of giggles and grunts, but never any talk about why these earnest boys are in the bowels of an adult institution. Instead we start by acknowledging the mental barriers to being free (whether we’re in jail or on the streets), then learn, along the ancient paths of movement and stillness, the possibilities of spiritual escape. All done in a dimly lit, locked room, the eagle watching from its frozen flight upon the wall.
I’m not alone in this effort to provide tools and guidance to inmates, to engage in some helpful way with the undeniable yearning for liberation. Chess, church ministries, smudging ceremonies, A.A., all sorts of healing arts are brought through the heavy doors by well-meaning folks propelled by various ideas about how to make the broken whole. Through this lens, it doesn’t so much matter exactly what it is that someone did to land them in the slammer, it’s enough to know that somehow something hopeful led this ragged man or cocky kid to your particular prescription for getting free. The law, in its wisdom, will nourish or at least not trample on the good seeds planted in these quiet evening freedom sessions, will bring its power to bear in ways that do justice to both past wrongs and future chances.

Or at least, I could be forgiven for thinking so if I were not also a servant of the system that so often maintains and widens the divide between freedom and responsibility. With both perspectives – that of the lawyer encouraged to maximise the quantitative aspects of my clients’ freedom via legal combat and message massaging, and that of the volunteer who is involved in enhancing these same persons’ qualitative experience of what real freedom feels like – I’m beginning to understand the depth of confusion inherent in a restrictive, impersonal prison/justice model. How can I expect to introduce a prisoner to the practice of Zen or Christianity, which, if taken seriously, arguably leads directly to courageous engagement with the source of one’s imprisonment, and then turn around and counsel an incarcerated client on the importance of not opening up in court, if a risk of longer imprisonment would result? Yet that’s precisely what I find myself doing, week after fractured week.

Imprisoning people, if it’s not eminently necessary to protect someone’s safety, makes the difficult job of responding holistically to criminal allegations and conduct that much harder to accomplish. More than the elephant in the room, prison is the room itself, the walls that shut out much of the breadth of freedom-seeking, narrowing it all down to the sparest basics. Understandably, when you’re in, all you really want is to get out. But without the integration of tools and values necessary to get at the roots of criminal behaviour – a process that implicates the public system as much as it does the individuals whose lives are caught up in such suffering – the outside becomes little more than an interlude between recreated reasons for being thrown back in again. Until we learn (and truly teach) how to take up problems with the heart as well as the mind, none of us – not least those behind our bricked-up walls – will really get free.

The Banality of Oppression

Honesty, strangely enough, is not something that is very welcome in the justice system – at least not the deep variety, those revelations that lead to more questions, reflections, connections. Lawyers don’t like it; successes slip away, sophisticated lines of defence are severed, and we start to uncomfortably understand (and worse, contemplate responding to) how tangled the roots of wrongdoing really are. Police and prosecutors prey upon it; hearing, instead of the complex subtext of shame and hopefulness that may justifiably lead someone to admit a wrong action, simply the “aha, gotcha!” moment that secures a conviction. Judges, well, judges tend to be so chronically undernourished on their diets of partial truths and platitudes that real honesties likely taste strange, insubstantial. Besides, what court has time to sink its teeth into the messy realities of lives, especially when dryly recited by parroting counsel who have fifty other files and their own interests to think about?

Opportunities for honest engagement, like many other of the most important insignia of healthy relations, are rarely found in our criminal courtrooms. And so, even as the system digs its claws and keeps its tabs upon the humans it commands, most are paradoxically hard-pressed to be seen as full humans, to assert and nurture, as one frustrated client put it, their “dignity and integrity”. It might seem an odd attribute to recognise in those accused, perhaps, of violating the dignity and integrity of others (or their property), but it’s a fundamental attribute of liberal humanism. Anything less leads to oppression.

So that’s what I’m going to call it, even though ours is the sort that leaves no whip scars or wire burns, that doesn’t disappear people in the night or actively shackle basic entitlements, as in certain other power-addled states. Rather, our oppressions are cloaked in the strict, confounding logic that imprisons addicts for the effects of their addictions, that denies the homeless bail because they don’t have stable homes. They are deepened by the measured condescension of professionals, when respect means little more than checking off the right boxes. And they are underlined by the centrality of poverty among the reasons why some folks are pegged as “rounders”, returned with sad regularity to the system’s small square holes. Oppression flourishes when those who wield power cease caring about how it diminishes the dignity and integrity of those without.

People with the least power in our society – those enduring mangled families, self-medicating wounds, wandering between temporary refuges – are disproportionately represented in our pre-trial prisons. Many are legally guilty of at least some of what they’ve been charged with; some are not. This is not surprising: private sufferings have public consequences. Oppressed people, perhaps in more achingly evident ways than the rest of us, commit crimes: they lie, they lash out, they try to get ahead by doing underhanded things, and thus, they come into contact with our official structures of rules, punishments, and accountability. There’s nothing inherently wrong with this state of affairs – societies have long reserved the right to draw and enforce moral boundaries around the lives of their members – but it seems reasonable to assume that any institution that dignifies itself with the word ‘justice’ ought to remember that any exercise of its substantial influence should be accompanied by significant responsibilities, including a sensitive awareness of the brokenness that characterises many of its subjects’ existences. By and large, those invested with the tasks of policing, prosecuting, defending and judging persons accused of crimes do not share much in common with them. Most don’t have any idea what it’s like to live with a mental illness or the memory of abuse, most, if they’re addicted to anything, don’t have to huddle in alleys or hustle their own bodies to get a fix, and most are more likely to own their homes rather than face the hassles of bad landlords or the revolving-door welcome of charity shelters. Again, not surprising, and not a feature of our slanted society that’s about to change. But once we accept the burden of adjudicating conflicts, can we justly refuse to recognise our role in making matters better or worse?

While ‘better’ is maybe too much to expect of a system primarily designed to determine who should be marked with the stigma of “criminal”, it’s more culpably complicit in making people’s lives worse. The blinkered roll-out of equal treatment is one of the worse culprits in this regard. Although its façade is fraying somewhat thin these days, the presumption of innocence remains a cornerstone of our legal process. Unless pre-trial detention is necessary in the interests of public safety or to make sure someone returns to court, that presumption demands that they should be allowed every freedom in the interim, to either address the underlying difficulties that led to the charge or, if they prefer, go about as if nothing had happened. Instead, most people accused of committing a crime are made to agree to a string of conditions before they’ll be released. These may include demands that they keep a curfew, or stay at a certain residence, or steer clear of drugs, alcohol, or anyone with a criminal record. Most insidiously, bail is rarely granted to those who can’t produce a whack of assets, a whistle-clean relative, or, more commonly, both. Some programs, like that offered by the John Howard Society, attempt to level the field a bit by supervising the release of those who are otherwise bereft of alternatives, but the ostensibly equal, manifestly discriminatory rule remains the same: if you take one step out of line, any faltering that may be entirely understandable in your difficult circumstances, your next residence will be that big house on Barton Street. Told you so. This is the banality of oppression in our time, our community: processes whose impervious, impersonal demands box in complete people with complex stories, who make it ever harder for those without power to reclaim the dignity and integrity that should never be lost.

When the Medium Eats the Message: the gap between intention and outcome in youth justice

Much ink, and not a few tears, are being spilled over the state of Canada’s youth criminal justice system. News reports detail the damage caused by out-of-control adolescents, teens killing teens seems to take up increasing space in the police blotter and public imagination, and the federal government, in response to this apparent takeover of childhood by little Lords of the Flies, is proposing changes to the law that would make it easier for courts to lock up kids who can’t be trusted to live free in the peaceable kingdom.

Although it might stretch institutional memories to do so, it’s important to recall why the Youth Criminal Justice Act (the “Act”) was created in the first place, way back in 2002. Canada had the world’s highest rate of youth incarceration, and the legislation explicitly recognises that one of its purposes was to end this shameful distinction by incorporating a range of alternative options and less restrictive measures to deal with youth crime. Now, not even six years later, we seem intent on reclaiming our place as leaders in imprisoning children. What’s going on?

I know some of the reasons for the frustration that’s pushing us to turn back the clock. I’ve been in courtrooms where judges push up their glasses and glower at some unresponsive rascal that but for the Act, they’d make damn sure they couldn’t take that smirk back onto the streets. I’ve used the law to argue that my clients can’t be sent to jail, even when every shred of evidence indicates that their chances of cleaning out in the community are slim to nil. I really can’t apologise – this is the way our justice structure works, or, distressingly, doesn’t. The system that I know gives little criminals plenty of apparent slack, but rarely ever lets them go: before most wake up to what’s happening, the long leash of youth law, drawing slightly tighter with each soft sentence that’s too easy to breach, becomes a constricting tangle that diminishes the chance they’ll successfully outgrow offending ways. Certainly, it’s a problem we must address.

I fail to see, however, how harsher sanctions, on their own, will ameliorate the messy situations that the youth justice system is created to face. We’ve got to ask, why do we have a separate structure for adolescents to begin with, and how are its differences applied to youth in trouble with our universal criminal law? As the Act rightly evokes (although perhaps unfortunately only in regards to those under 18), the entire idea is to promote “timely”, “meaningful” measures, those that cultivate and focus our collective adult wisdom and resources upon the most fragile, tender members of society. And let me be clear, even though most teenagers do their aggravating best to maintain bad-ass or who-me masks, the sheer chasm between whatever it is they’ve done and what they understand of the implications or consequences involved makes me want to cry. More so, the difficulties most face in developing and maintaining healthy relationships makes me want to adopt them.

While kids may not be so different from many adults in this respect, its galling obviousness among youth – and the sustaining hope that appropriate early interventions can have life-changing effects – provide ample justification for a special approach to youth justice. But here’s the rub. In terms of legal practices and procedures – the medium by which we expect to communicate this oh-so important message of “responsibility and…accountability”, I can discern precious little difference between the youth and adult systems. Once the courts become involved in a kid’s life, defence lawyers like me get paid to, in essence, get in the way to protect our pint-sized clients from the worst – but also potentially most meaningful – of society’s attempts to respond to criminal conduct. Because it’s our job, we use all the levers and illusions available to us to temper a prosecution’s zeal, but too often our machinations distort, and sadly even sever, the key association between act and accountability that matter to any real learning of how one needs to behave. By the time kids plead guilty – as the vast majority do after months of increasingly disconnected court appearances, just to get it over with – most have an understandably mangled insight into what’s happening to them, why, and what it means in terms of their development as members of a moral community. Without the fostering of these links, is it any surprise that mischievous 14 year-olds (most of who already suffer from inadequate family support and stability) learn that justice is at best a tedious game, at worst a moronic force to be withstood or rejected?

If I had my way, I’d make the youth justice system indelibly distinct: every kid clutched onto by the court system would get an advocate that ensured that their rights were respected, and would, with all sensitivity and necessary moral guidance, help them express their perspective on what may have happened. Then, if a wrongdoing is accepted, all appropriate actors, with a minimum of adversarialism and wasted time, would get together to determined the best way to relay the message that yes, this young person is cared about, but no, actions that hurt others can’t be condoned. Of course we’d fall short of our ideals, time and again – finding a shared sense of justice, especially across generations, is among the hardest of tasks I can imagine, but if we really wanted to manifest our seriousness about passing on the “meaning” of integrated accountability to our young people, this would be an approach I could pour my heart into.

Second-Degree Burns

Quiz time. Try to fill in the blanks. The purpose of the Ontario Disability Support Program is____________. The reason we have a Public Guardian and Trustee is____________. Welfare offices are meant to __________. The unifying rationale behind the criminal justice system is______________. (Ok, the last one’s a trick question – no one really knows that answer).

I won’t spoil the fun by giving you too many clues, but here a hint: the official mission statements of these and similar organisations categorically do not endorse goals of demeaning those who seek their help, undermining their sense of worth, or compounding their experience of poverty. And yet, I wouldn’t be surprised if that’s exactly the conclusion you come to if you are, or you speak to, one of the many people in this city who are forced to seek public supports to eke out a basic living. Maybe you haven’t worked since you shattered that hand or back at manual labour. Maybe you’re so anxious or depressed you can’t remember the last time you slept the whole night, or woke up before noon. Maybe the world has you labelled because of your Down syndrome, and you just need to feel a little less vulnerable. Whatever the reason, those of us who seek social services are likely facing difficulties that can never be fully understood by even our closest friends, let alone the pros who get paid to lend a hand.

Everyone is wounded – it’s an inescapable part of being alive. Accidents, injuries, wrongs, weights laid upon us even before we were born, those innumerable human burdens that we can neither prevent nor completely account for. I’ll call them first-degree burns – scars that mark (in unique and often vastly unequal ways) our challenges, our vulnerability, or our need for particular care from the society we belong to. It might be a physical disability, suffered yesterday or incurred at birth. It might be a mental ailment, psychological trauma, or bewilderment at a new culture. You probably know your own, and you’ve probably judged another’s. For better or worse, because no one else can truly feel our first-degree burns, each of us is ultimately responsible for managing our own, hopefully with the help and understanding of wise and loving neighbours. But as our society has changed, gathered riches and loosened knits, many of the jobs associated with addressing the most obvious effects of these wounds have been transferred to the trained hands of social service professionals – doctors, counsellors, government agents, advisors and advocates with all sorts of hats. People like me are entrusted with balming first-degree burns – and our first order of business should be to do no further harm. Sadly though, too many of the people in this city who’ve been scalded in the first instance seem to suffer second-degree burns in the so-called helping process. Maybe someone is sneered at, or shunted away, after waiting a long time in a line up. Maybe the distant tone of some official correspondence makes clear only the coldness with which somebody feels their issue is being treated. Maybe a person leaves a meeting without feeling listened to, or even looked at. Whether intended or not, these slights often compound the damage that leads people to seek help from social services in the first place. And they happen so often we’ve got both words of description and avoidance for what’s happening: re-victimization, institutional abuse, or else oversensitivity, the so-called hopeless or insufferable cases, people no one knows what to do with.

But second-degree burns are, though horrendously common, neither necessary nor excusable. Fortunately, they’re also usually healable, given sufficient time, sincerity, and mutual humility. Think how nasty it feels to be disrespected, devalued, dismissed – even in passing or implicit ways – by someone whom you’ve come to for help. Consider how the bitter taste of belittlement spreads within you, curls your tongue and fists, stirs up anger, shame, resentment, even rage and self-hatred. Now ask yourself what would make that evil feeling dissipate. Although reciprocally cruel revenges might first spring to mind, I’m convinced that what most of us really want, and more so, what would be most helpful, is simple recognition of the pain that second-degree burning causes us, and a few concrete assurances from the ones who’ve brought it on that they’ll try to act more care-fully in future. Fundamentally, we all want to be understood.

Practicing compassion in professional relationships, and re-attuning ourselves to the influence we have on each other’s well-being, has positive effects even when the particular assistance or answer someone may have originally wanted can’t be granted. The sober reality is that, in the kind of institutional environments I’m talking about – the welfare or ODSP office, the housing help centre, the legal aid clinic, etc – there’s often an adamantine legal or practical reason for saying no, sorry, I can’t give you what you’ve come looking for. While denials may be frustrating, discouraging, or a good reason to push for political change, they aren’t in themselves what causes most second-degree burns, aren’t what makes people feel leprous or invisible. If we’re the ones choosing to take on professional responsibilities towards others, or if we’re the ones tasked with the tough job of putting a face to government policies, it’s important to ponder how our ways of treating people might actually do them more harm. Are we able to see the forested selves amidst the trees of discreet problems, deracinated issues? If it’s hard, can we ask each other why? Despite the ten thousand things that make it easy to treat others, and especially the neediest among us, as less worthy of the care and attention we want for ourselves, we know, as people who both give and receive second-degree burns, that no goodness comes through increasing the suffering that already floods the world through irreparable breaches. There are daily leaks we can set about plugging.

Nights of Love, Days of War

But for the grim fact of their inadequacy, I would totally enjoy my shifts as an evening advice lawyer. Every few weeks, I grab my bike and trundle off to a community centre– maybe North Hamilton, maybe St. Matthew’s – to spend a couple of hours in a borrowed office surveying the various legal difficulties people in this town endure. Everyone, from a kid sweating over a shoplifting charge to a renter steamed about meat spoiled by an unjust power cut, is welcome to attend one of these free, fast-paced meetings with a local lawyer, who’s expected to perceive, process, and proffer some shred of appropriate advice. All in about fifteen minutes. Maybe I need a newer Pentium chip installed in my brain, but it does seem a bit of a stretch to expect much true benefit to accrue from such off-the-cuff encounters, particularly since Legal Aid has a policy that prohibits us from providing any follow-up. Nevertheless, I find myself strangely loving these frantic nights spent hopping from contract to estate to matrimonial law and back again. I love the random glimpses into the aches and yearnings in people’s lives, and the chance (even if slight) to suggest how best to smooth out a sticky mess. I love the intellectual challenge of applying arcane law, those musty principles forged centuries ago by men in powdered wigs, to the blood-and-guts dilemmas of North End immigrants and laid-up steelworkers. Mostly I love the informality of it all, the fact that I can walk in there wearing old shorts and a shy grin to fend off the “you’re the lawyer? You look like a baby!” comments that are so frequently chucked my way. Evenings at the legal advice clinic may not be great for developing ongoing relationships or discerning enduring solutions, but they do offer a brief opening for people with legal problems and people with legal expertise to meet on a similar plane to compare notes, as it were, on our experiences of how law interacts with real life. Heck, give us more time and we might actually start to make some useful connections.

A wholly different reality prevails in the daytime, however. Once someone’s problem is appropriated by the legal/court system, lamentably often the needs and perspectives of the people closest to the matter are subordinated to those of the structures designed to resolve it. Simply put, process tends to overpower problem-solving. Spend a day in the criminal courts and you’ll see what I mean. Guys (mostly guys) in business suits lug stuffed briefcases across seven floors, shepherding paper in and out of rooms wherein they bow and bluster and more often than not adjourn cases to another day, while their clients follow mutely or wait for answers in basement cells. It’s not a very satisfying situation, and the worst part is, it isn’t really anyone’s fault. Order and efficiency are the golden means of any bureaucratic system, but the version they create doesn’t altogether cohere with the hopes of the humans they’re supposed to serve. A structure may be ‘working’ (that is, maintaining its self-imposed authority and achieving standards of statistical acceptability) yet still be failing its fundamental mandate of justifying, on a day-to-day basis, the resources and relevance our society gives it. This is excruciatingly evident in the legal context, where weighty, intimate concepts such as justice, fairness, and human dignity slam up against systemic and corporate considerations like profit and through-put. I might, as a compassionate fellow traveller, wish to be able to sit down with each client and help resolve the sources of their discontent with a minimum of wasted time or excess decorum, but as a professional and servant of the court, I know that I’m also expected to play quite a different game. Short (or perhaps alongside) of re-imagining the system itself, the question I face as a heart-centred lawyer is how best to reconcile these divergent forces, which often threaten to distort and tug asunder the truths and opportunities conflict can present. It’s something to spend a career working on. Happily though, I’m realising that the official apparatus of court processes and procedural shenanigans is only part of the story each legal problem tells, albeit one told in an especially loud, frightening, or foreign voice. If I can possibly stretch and deepen those few evening minutes I have with someone around a table in a community centre, so as to accommodate more of what we have to communicate with each other, then the inevitable next-day forays through the halls of the system might not be so taxing, for either of us.

Welcome to the Jungle

It starts, of course, with a disclaimer. Despite all the hoops, the hundreds of books, despite having been inspected, tested, and stamped ‘Approved’ like some grain-fed slab of graded flesh, despite my brain being laden with some desperately important things I think everybody living in this country should know, the first words I feel compelled to spit out at you are these: don’t rely on anything I say.

That’s right, I’m a commoner-cum-lawyer, a fresh member of perhaps the world’s most fretful profession. Trained as a worry-wart, highly honed in hand-wringing, paid to perceive, assess, and, if possible, avoid all conceivable risks a situation might present. Just like doctors or wilderness guides, we lawyers sell ourselves as centrally concerned with someone’s well-being. Sounds pretty noble – except we’re not pitted against parasites or trackless swamps; in this jungle, our enemies are each other. Selling a home and don’t want to get screwed? Hire a lawyer! Need to shelter that bank account or protect your latest patent? You’ll find a firm designed for the job. When it’s you against the world, or you trying to get (or stay) on top of the world, you’ll probably want one of us by your side, power suit gleaming like an archaic suit of armour, while everyone else fades into murkiness, suspect, untrustworthy. For as long as you’re a paid-up client, your best interests are, so we say, paramount. Or rather, mounted right under our own. That’s why we’re so good at telling you (though sometimes in fine print or foreign-sounding language) exactly what we’ve agreed to do, be it helping you start a business or stand up to a criminal charge. If the scope and limits of a job are clear, the thinking goes, so too is the potential liability we face if we’re accused of screwing up. Legal training installs a blinking signal near the front of our skulls, constantly warning: what if I get sued? How do I protect myself against being sued? Is this guy gonna sue me? (the concern often emanates not far from that part of the brain busily wondering how to sue someone else). Hence, because you probably didn’t pay me to write this, nothing I say on this page, or in passing on the street, or heard warbling from the shower stall at the Y, is meant to be taken as legal advice. I don’t want to get sued.

I exaggerate to make the point: although we’ve progressed in many ways from the general savagery exhibited in horror films about our apish forebears, when shit goes sideways and lawyers get involved, we’re pretty much still in the Attack! Defend! realm of social relations (although thankfully with slightly less fang-baring and bashings with blunt objects). It’s a me-first framework, and not an easy one to evolve out of. Our fearful, covetous hearts, drum-beating beneath slick outfits and polished speech, wrapped up in courteous conventions, nevertheless still drive much of the litigiousness and twisted legalese our communities spend so much time and money dealing with. True, sometimes the sky really is falling and your ass (among other parts) better be covered, but I can’t help but wonder, with what remnant of kindergarten wisdom remains after twenty subsequent years of schooling, that so many of our disputes could be much more elegantly and enduringly resolved if the people we hired to help were a little more like Fred Rogers than Yosemite Sam. For that transformation to happen, though, one of us has got to make the first move: either the policymakers and professionals incorporate collaboration as a viable practice, or the public they serve starts to concertedly demand it.

Some areas of the law are already being nudged in this direction. One example of ‘top-down’ change is in family disputes. The burning issues of who gets the kids or their share of the toaster oven used to be characterised by bitter court battles, simply because sour love is among the worst fertilizers for reasoned compromise. But while that facet of human nature isn’t likely to change much, our overworked system has incorporated several interceding steps, from info sessions to mandatory mediation, designed to assist (or impel) people to find their own solutions before the courts get involved. Other, more participant-driven innovations are emerging in civil suits, where lawyers and judges would probably happily argue over the fine points of legal doctrines like whose client is a more “reasonable person”, so long as they are being paid to do so. Trouble is, some people don’t really like the idea of spending more on the legal process than on the actual value of whatever was lost, and so we’ve come up with quicker, cheaper ways to let folks settle who owes whom for what. These innovations don’t always work, and come with some risks of their own, but represent some small ways for the system to lay down its intellectual weaponry and start to help folks solve their problems.

My chosen area, alas, is criminal law, which has long been a kind of hunchback cousin to the more clean-cut areas of dispute resolution. Oh, there’s no shortage of real problems to tackle, but the trouble is, there’s too often a chasm between what the professionals and actual parties think they are. While I’m wound up in establishing that the cops had you constructively detained while they asked unconstitutional questions, you might just want to say sorry to that person you hit. While I need months to get your matter to trial, you might just want to take your lumps and get on with life. And most importantly, while the Queen might trumpet that justice must be done, you, victim or accused, may have very little say in what that justice looks like, or really means.

I have to end without answers (I guess I didn’t really give any advice either). But in future columns I hope to explore how some of these questions are playing out in Hamilton, in the day-to-day world of conflict creation, resolution, and sadly, exploitation. In the meantime I’ll try to tread the jungle in the spirit of what Utah Phillips said:

“You want to be a pacifist, it's not just about giving up guns, and knives, and clubs, and fists, and angry words...but giving up the weapons of privilege and going into the world completely disarmed. Try that.”