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.