defending the defender

Forgive the imperfect analogy, but sometimes I imagine that I’m a doctor. Except that instead of an infrastructure designed to let me deliver the best care, my sickest patients are kept sequestered in some barred, stone-walled building with hundreds of other infectious individuals, and my rounds, far from being facilitated by a team of nurses and technicians, are impeded by a tense officiousness that allows only the briefest checkups in cramped and hounded quarters. My diagnoses and prescriptions must be filtered through often conflicting sieves of information, on one side designed to make my patient appear as ill as possible, on the other, from the horse himself, that he is completely well. It is within such a strange hospital that I hope to guide someone to healing.

But of course this is not really about sickness, at least not according to our country’s dominant interpretations of what us justice fools are up to. And if anything, in the paradigm that pops up on message boards and media reports, it’s criminal defence lawyers who are infecting the social body with our diseased ideas about the rights of the unworthy.


There’s a question all of us are asked, and, truth be told, must ask ourselves: how can you do this? What’s commonly conveyed, I think, is the flat repugnance around representing those who’ve done heinous, even evil things. And, viewed so starkly, how could this really be a good? At most, we might explain ourselves by claiming it’s a duty, and necessary to the yin-yang structure we’ve set up. Without us, we rightly say, voices are drowned, rights snuffed out, the frail or unpopular consigned to the vicissitudes of those who have neither obligation nor inclination to give a damn. The citizen is most at risk, we know, when suspect of doing something wrong. All this is fine, and deflects some of the blame, the glowering scepticism of those who believe in the black and white world that so often cameos as justice. But it’s not nearly enough to be proud, for criminal lawyers to shake off the cynicism and self-deception that we tend to pass around like a winter’s cold. So I’ve been hunting for a way to articulate why this calling ain’t so bad, and in fact deepens my sense of the human’s gritty beauty. Somehow, even though the suspension of (even accurate) judgment is absolutely necessary, there’s a nub of graceful realism to this profession. Simply put, it’s our job to emphatically not feed the dichromatic illusions that propel prosecutorial zeal, and find their logical conclusions in immoderate, un-nuanced punishment. I’ve been in law enforcement – I know the little thrills and back pats that come with catching the act, the law-break that allows authority to unhitch its belt in the expectation of a righteous walloping. I know it feels damn good to be on the right side of the line, to employ and justify law’s tools – cuffs, badge, bars, book – against the wrong. Done wisely and well, it’s a crucial role in the play of social regulation. Yet we see, again and again, how the power to punish becomes the opportunity to oppress, to be blinded to the person in the gleam of the blame.

I’m not presuming that defenders know (much less tell) the true story of any character or crime, not at all. Sometimes, in the narrow service of our clients’ needs, we do exactly what we’re ridiculed for – chip away at probable logic, re-align a judge’s gaze, suggest and wedge open precious cracks of doubt in a case’s foundation. But, much more often, good representatives try to re-contour the flattened landscape of bad deeds and worse boys. If we’re allowed, by our clients and the law, and if we choose the effort, we might parse those black and whites into an honest spectrum of grey. It is, I suggest, a very worthwhile task; think about it the next time your whole life is repackaged in an 8’ x 10’ cell, your story reduced to spare misfeasance (I don’t suggest it happens to you much). But is this what “the people” want?

There is a certain strand of thought – ascendant in America, becoming so up here, that the mess-around with subtleties is a dangerous indulgence, that all justice requires is the coupling of proven crime to predictable consequence. It becomes irrelevant, invisible, that you had such-and-such an upbringing or suffer from this-or-that insufficiency. The question ‘why’, so integral to other realms of truth, ought to be expunged from a court’s consideration. Such a lip-smacking, simplifying dream, don’t you think? Let no novels be written in courtrooms. Spare no poetry for the convicted. Some day law, perhaps, will be no less complex than arithmetic. Perhaps the black and white world is returning.

Folly and arrogance

Read, if you haven’t already, this recent comment in the National Post. Besides the gross biases and assumptions, beyond the disingenuous distortions, apart from the fact (I can assure you) that aboriginal perspectives continue to be given extremely slight credence and authority in our justice system, this article raises important concerns that merit both meditation and action. To begin with, there is no doubt in my mind that this man, his family, their community, and all of society recognises what happened that night as an awful tragedy, a deep wrong. There is no point musing upon how these deaths would have been interpreted or dealt with by some long ago Pre-Contact clan, because their catalyst, and the crucible within which they occurred, are entirely different. This is not a problem for an anachronistic, static culture; this is a problem for a people whose continuity has threaded through, and been shredded by, the manifold challenges and changes of recent centuries. The appropriation of land and language. The damnation of families and familiar rituals. The externalised control and the internalised chaos. And also the amazing, enduring alchemy that welds tribal pride to web servers, hunting to hamburgers, that accommodates (if is not quite accommodated by) the entirety of an evolving, integrated age. This is a problem for present-day people, and, as I’m sure Mr. Kay will agree, it’s one whose causes and responses thrust forth shared responsibility. But (as unfortunately resonates throughout his opinion), unless we are to use this tragedy as justification and opportunity to continue the colonial experiment to its existential end, to finish ‘em off through their weakness, we must take great care, as members of a surrounding, overpowering society, to endeavour to understand what our justice system is doing. Its effect upon indigenous minority cultures is almost as profound, in my view, as its impact on individuals. So let us open our minds.

A community justice process, such as a sentencing circle, is no more or less than a means of empowering those closest to a crime to contribute to its resolution. As with any mechanism, it is not magic, and although it may benefit from culturally appropriate insignia, a circle is not the purview or birthright of any particular group. Far from knocking its supposed inauthenticity, Mr. Kay might have applauded the Yellow Quill circle as a testament to compromise and adaptation, as a worthy and crucial attempt to wrestle with the demons of ill-doing without entirely submitting to a framework of dependency and alienation. But instead he was aggrieved, he was disgusted by the spectre of a corrupt and irresponsible kleptocracy, a clique of propped-up hollow-moralled aboriginals presuming to control the noble workings of that most honour-bound, most spit-polished system of justice ever produced (God bless her Majesty)! And, if indeed this is what is happening in the unsightly fiefdoms She was gracious enough to reserve for the dying tribes, he’d have every right to be offended, as would we all. But Mr. Kay has not appealed to his readership’s assessment of the evidence, nor even tried to relay the sadness and muted hopes of a small village that has lost two most precious members. He has, with ghastly accuracy, relied on the well of righteousness, ignorance, and prejudice that is yet replenished in our enlightened age, to sell that same old story: they can’t be trusted, or not, at least, out there.

I’ve never been to Yellow Quill, and I’d wager that the same holds true for Mr. Kay. Even to be able to check it off the endless list of destinations would be to risk falling into the white-eyed trap of presuming to know a place for having been there. But I’m willing to guess that, if our tightly-wound justice system deigned for it to take place, the community’s sentencing circle must have been supported by those who were most affected by this crime, whose tears fell closest to where it took place. And it takes a breathtaking ‘traditionalist’, Mr. Kay, to seek to put the state’s foot down in the way of such small progress.