Happy New Year. I've been busy having babies.

I did, however, manage to attend a by-law workshop last month. While this does not strike one as an especially interesting topic to write or think too deeply about, it provided some fascinating and disturbing perspectives on the challenges of reserve life. While local laws may concern such seemingly mundane matters as dog leashes and parking lots, in a First Nations context they embody both hope and despair for the self-determining, meaningful exercise of control and responsibility over what matters to the citizens of communities.

Most of the attendees were members of band councils, along with a few representatives from the federal government and police agencies. I was there as an observer and presenter upon one of the more ambitious (perhaps desperate) attempts of a community to gain some control over the alcohol and drug (and gas, glue, hairspray, lacquer, hand sanitizer, etc etc) epidemics that are throttling two generations - the first not to be directly throttled by residential schools.

In any case, it became clear that everyone was in agreement that the by-law system, as it currently exists in the First Nations of this region, is in a state of complete disarray. "We put these laws on the books in '77!" one councillor howled. "And not one of them's been enforced ever since! How do we do that?". He was talking about the things that most of us take for granted - about traffic regulations and animal control, about student truancy and the production of homebrew (not craft beer, but noxious concoctions of yeast, ketchup, and other unmentionables). The Indian Act, that noble 19th-century piece of legislation that still governs almost every aspect of Aboriginal life, has, in its beneficence, granted band councils the power to make laws regarding these concerns (subject to tight oversight and circumscription by the Minister in charge), yet it provides little nurturance for their enforcement. It is an absurd cycle of inaction: police officers are not laying charges, prosecutors are divesting themselves of any responsibility for charges that might be laid, and courts overloaded with a criminal caseload are poorly equipped to give any legitimacy to any process that might be instituted. The Act itself provides only the most laughable of options for punishment: traffic infractions, for example, are subject to maximum $50 fines. Other problems are of a more practical nature. We heard from one council member about how his community is overrun with half-wild dogs - yet implementing a control or sterilization program would cost thousands of dollars per animal. He was worried about a child getting bitten or dragged away. Another spoke movingly of the hard choices facing band councils strapped for funds and facing crisis: his community has had to hire someone to patrol the parking lot on Bingo nights, to stop the kids who are crouching down to get high on the exhaust fumes of idling cars.

This is how peril, apathy, or brusque, impotent anger seep into the lives of any human, or any community subject to such pressures. Loss of control and lack of resources dos-si-dos into dangerous territory, while us outsiders watch, or worse, look away.

I hope I will follow up on this post with more hopeful developments - no one knows these problems like those living on reserve, and there are many people working hard, with very little, to make life better.

Ear to the Ground

Someone I knew, long ago, once told me to turn off a song that was playing on my car radio. "That's not music!" she complained, in reference to the thick drumbeats and undulating wails of a Cree or Blackfoot anthem (I can't remember). I couldn't articulate much of a rebuttal at the time - this was a classically trained instrumentalist with a fine ear and heart for Schubert, who gushed over the intricacies of a Rachmaninoff concerto. Her judgment bothered me though - there was something in these rhythms that I trusted, something that I deeply loved, without needing to understand why. If music is meant to conjure truth and beauty, to exhibit the human sense of holiness, then this was surely music to me.

This sense returned to me recently as I sat in the healing room of our local hospital, as one in a circle of community members who had gathered to bless a new handbook on moving forward through (and from) the ravages of residential school. It was an emotional affair, as this town is torn through with so many stories of loss and pain and tragedy, many of multi-generational scope, most only now beginning to be told. A women's hand drum group was offering an honour song, and all of us stood in the round to receive it. The music rolled us into a vibrant, vibrating whole. Rhythms that, if seen on paper might seem mundane and repetitious, served to perfectly convey the sprit of this gathering, its meaning and moment in the now of these gifted and grieving human lives. No symphony could have resonated it better, with more real, age- and earth-won wisdom.

Draft of a letter that may never be read...

It is rarely a bad time to look up from the minutiae of our tasks, to consider how our work informs a bigger picture, and take note of where our choices are driving us. For those of us engaged in the criminal justice system, it is time – long past time – to meaningfully acknowledge that we are far from where we ought to be. The system that we maintain, it must be said, remains deeply antithetical to the traditions, values, and ambitions of those whom it purports to serve. This includes, most acutely, our region’s Anishinaabe people, who make up the vast majority of victims and offenders.

Here in Northwestern Ontario, we are given the privilege, and the challenge, to live and work at a most important intersection of law and culture. We inhabit ground upon which our differences encounter, and, too often, confound each other. Let me try to describe what I mean.

I am a lawyer, invested with a lawyer’s tools, priorities, and analytical mindset. I am sworn to serve my individual clients, to protect their legal rights, to ensure that they are not convicted without due proof, and, if convicted, are sentenced to punishments that are minimally restrictive of their individual liberty. I am taught adversarial methods to achieve these goals. And although I must put my clients’ interests above all others, including those of their families’, communities’, and society in general, I am given comfort in knowing that I’m working within a system that is specifically developed to help us reach towards something called justice. I will not argue that this model is not generally effective, in the context within which it is meant to operate. But it is certain that in this region, in the lives and communities in which these same principles are currently being applied, that they are not performing their much-needed function of facilitating a more peaceful, more just society. Tragically, they may even be working against it.

This is a longstanding problem, and one that is widespread across Canada. It is one that has been recognized at all levels of court, in Parliament, and by provincial and national commissions of inquiry. The Supreme Court of Canada, in its important decision in R v. Gladue, stated clearly that the law must approach its work differently, if it is to have any hope of beneficially responding to the needs, experiences, and perspectives of Aboriginal people or communities. In essence, the Court cautioned, the way we do justice is not just, and requires serious adjustment.

Over ten years have passed since the warning in Gladue was issued, and we must ask how deeply it is being heeded. A number of initiatives have been implemented to try to ameliorate what I will call the ‘justice deficit’ afflicting Aboriginals in this country. Community legal workers bridge some of the cultural gulfs that court processes wedge open. For minor crimes, diversion programs offer restorative alternatives to youth and first-time offenders. Lawyers and judges have been schooled to attend to the background reasons that bring Aboriginal people into conflict with the law, and, sometimes, have the benefit of detailed reports that illuminate these factors in specific cases. On the corrections side, programs have been developed for offenders both in and out of custody that apply traditional values and practices to the modern plagues of domestic and intergenerational violence, substance abuse, and unresolved grief. Each of these developments marks a necessary step, but, on their own or even cumulatively, they offer insufficient progress towards the goal of a meaningfully ‘just’ justice system for Aboriginal people and communities.

More courageous and creative adjustments are needed, and in some parts of the country, they are already being established. This includes the Gladue (Aboriginal Persons) Court in Toronto, supported by dedicated judges, prosecutors, duty counsel, and case workers who together allow for a truly different approach to justice for Aboriginal persons living in Canada’s biggest city. Also in an urban context, BC’s First Nations Court has been established near Vancouver to support Aboriginal persons who wish to take meaningful responsibility for offending behaviour. As in any criminal court, accused persons enter guilty pleas and are sentenced, but instead of an end, this juncture marks the beginning of a collaborative process of justice and healing. Offenders are expected to return to this court regularly, to provide updates on their progress, to respond to the guidance of the judge, and to account for themselves in a forum that promotes a restorative focus on the roots of wrongdoing, and the resources (cultural, social, spiritual, and therapeutic, as well as punitive) best applied to its resolution. Both of these forums have proven to provide a more understandable, inclusive, and above all effective approach to justice for Aboriginal persons.

If initiatives such as these can grow and succeed in Canada’s cities, why cannot similar, or even deeper, truly indigenous adjustments to the justice system take place in areas such as ours, where Aboriginal people and communities are its majority stakeholders, and the scope of the ‘justice deficit’ is most shocking? Certainly, from my perspective, the need for serious change appears obvious. As a lawyer, I am confronted daily with the consequences of a justice system that is not responsive to the aspirations or expectations of my clients, to say nothing of those of victims, families, and communities. I am sick of attending trials in which witnesses are too frightened, ashamed, or uncomfortable to speak their truths. I am, in my conventional role, a hopelessly inadequate spokesperson for people who plead guilty, but who, for whatever reason, never make their own voices heard. It is especially jarring to participate in a circuit court system whose limitations leave it unable to really listen, let alone respond, to the stories of pain, shame, and possibility embedded in every legal case. Some will say that this is not the law’s job; that it is enough for us to provide formal fairness, hollow equality. But, as I believe and as I have been told, the Anishinaabe of this region have different traditions and understandings of justice, ones that do not require people’s rights to be pitted against each other, as the Canadian system’s adversarial framework seems to demand. It is time – long past time – for this system to deeply adjust itself to allow for these yearnings to be nurtured. Or else it must step out of the way.

double vision

This is the season of still fire in the leaves of the matchstick stands
of birch that huddle within changeless swaths of spruce and pine.

And the most diseased human habitation I have ever witnessed exists in the midst of this beauty - vast lands of unlogged forest, measureless waterways of lake, marsh, and river.

This is where the law's dissonance booms. It sounds like the sighs of a court party forced to (literally) pick the locks of doors to set up its temporary chamber, and begin its proceedings (literally) in the dimness of a hall whose lights it has no power or knowledge to operate. It sounds like the echo of names called into the sparse lobby of a community centre that, although recently built, is already scarred by the stone-throws and scrawlings of gas-addled youth; names of witnesses or accuseds whose absence prompts frustrated warrants of arrest, and the consequent lumbering of police trucks along pockmarked gravel roads.

Disengagement feels like the bruise my spirit accepts in the knowing that so many of my clients will run the whole course of their legal ordeals without ever facing a single fact of their enfetterment, and that they will be turned back, in the end, into the whip of a suffering/harming cyclone. It is the sadness of hearing a client tell me that his accuser will fare far worse than himself "because no one likes a rat round here". And it lies in the silence of victims who, in bowing to this granite logic, put their own necks into the law's headlock.

No one amplifies their voices, the way I do on my clients' behalf. Therein lies, as even Conservatives know, a crucial question, a distorted twist of truth. But does the answer lie in ramping up the rhetorc of war, of pounding ever harder on these rickety tables that we erect in the centres of communities whose ills and rhythms we yet weakly pretend to comprehend?

This of course is the rub, the nub of it. The elephant whose hulk rests unaddressed in this district's rootless courts, in our so-called universal law, and in the ongoing collision of our cultures. As I go about my work, I just want to acknowledge this.

Why I Stay

Sioux Lookout recommends itself to anyone who wants to shimmy free of derivative living. It is not a place of easy, anonymous consumption, or complacent spectatorship, but somewhere that invites headlong participation in the joys and challenges of community, in all its streaming, messy diversity. In this month alone, we have gathered for the town's first annual Pride picnic (which was said to have attracted more folks than twenty-times-larger Abbotsford's parade), the fifteenth Take Back the Night walk, and (next week) the vigil for missing and murdered Aboriginal women. We've also gone from working to lake swimming in under ten minutes, hiked up the town's namesake "mountain", and successfully completed several Sioux Lookout triathlons (cycle, paddle, potluck). The latest of these forays took place during a six-hour power outage - an annual event in early fall where transmission line maintenance sends the whole town back a century or so. This year's iteration gracefully fell on a warm and sunny Sunday, and it seemed like everyone spent the day joyfully outdoors, bedding gardens, cording firewood, or fishing from the train trestle in unhindered defiance of trespass laws. Despite all that you may read here, this is a good place to be human, and to call home.

statistic stories

A recent one day snapshot of the inmate makeup of Kenora's District Jail (our 'local' detention centre) provides the following:

Jail's official capacity: 95 inmates
Total number of inmates on Sep 23, 2011: 165
Percentage in custody awaiting trial: 52 (86 persons)
Percentage of total inmates who are Aboriginal: 83
Percentage of total inmates who are women: 18 (30 persons)
Percentage of women who are Aboriginal: 100

Numbers alone, of course, provide slight and insufficient insight into cause, meaning, and consequence. But for me they are irrefutable reminders of how colonial injustices, sown into lives and communities sometimes years before their very birth, continue to fester, to provoke fresh spasms of anguish, violence, injury and loss. And how our legal culture of individualistic capture, blame, and punishment pays so little heed to these long-embedded facts. These numbers scream, but are, most horribly, being less and less listened to by those with the power to create different outcomes, less sickening stats.

fissures and fusions

Sioux Lookout seems to possess far too many amputees, refugees, folks with spent gazes and lost body language. Its dysfunctions are evident on court dockets, in hospital notices warning against sanitizer theft, in the surfeit of well-padded police officers who attend to haul off the drunks seeking warmth in the old bank lobby. Too many people with nowhere to go, or else desperate to be gone. But despite such indicia, the town cannot be cast off as wart or war zone. Its wounds and indignities are not shared equally, of course; it is not a gross overestimate to suggest that half the population earns a handsome keep tending to the other half's frailties. But perhaps because we are so small, our problems so manifest and distilled, Sioux Lookout is also a nest of remarkable, even exemplary responses to social ills.

The connections I touch here astound me - the tight, if fraught, relationships between people, both here and in the small communities in its surrounding vastness, threads cinching geography and time. Sundered lives are stitched within strong family webs, where great need and great capacity telescope together. The leathery drunk weaving on the sidewalk outside the courthouse, I discover, is my client's father, the same man he spoke about with rage and tenderness. A man who, at one time, held positions of great authority within their band. The next morning introduces me to this same client's daughter, shackled in the courthouse cells, and a flood of other family members who mobilize to set her free. Hands and voices span across the massive territory, phone calls seek out helpful aunts, nephews drive eight hours to bring elders into court. These old ones sigh and chuckle that they've been leaned against before, stood firm in times worse than this.

All this happens in the face of a parallel manoeuvring, that of witnesses and no contact orders, medical reports and forensic notes: I foresee, with one eye, a case likely to proceed to trial, while with the other gaze with awe and worry over this one family's tethers.

The views from here

Lakes, at this height, are laid out on the land as wild and haphazard as droplets of mercury. I see the sun as the sun sees us, brightly replicated in innumerable mirrors. This morning the air we thrum through is smooth, but often, and invisibly, our passage hits updrafts that kick me into awareness of how measly small these vehicles are. I have learned, as well, to expect the slap of clouds, the urge to hold my breath and armrest as a plane dips into the woolly medium of an overcast day, or bombards through the battlements of cumulous afternoons. Here, in these ambient cocoons, (mostly) men sit in (mostly) wordless company, working or dozing. Lawyers flip naked fingers through indices of the day’s business, each sheaf encasing a story of evidence, evidence of many stories. Proof, our currency, rests in abeyance for a time, like this plane that trajects the open space between defined places.

I usually like the law quite well in this setting. Controlled environs, earplugs and peanuts, folders full of interesting material, plum for highlighting and scrawling queries or deductions in the margins; yellow notepad held close to sketch out clever arguments. My mind, in these times, takes the shape of a polished courtroom, assigning strengths and challenges to each of two opposing sides, squinting at my case the way I think a judge would. It’s at least as fun as Sudoku.

Paper-thin rules don’t apply so predictably after landing, however.

Crime and the Closing of the Canadian Mind

One of the great perils of Canadian politics – for legislators no less than electors – lies in the necessity of making decisions that impact people we will likely never meet, in situations we will likely never know. Such blindfolded influence is present in all policy areas, but perhaps no more profoundly so than that of criminal justice.

In the construction of criminal prohibitions, we tell each other unambiguous stories: if X is wrong, then it is wrong regardless of place and irrespective of person. In an odd way, this may be a strand of our national cohesiveness, our democratic promise. Redrawing the boundaries of what counts as a crime, of course, is not a major topic of this year’s federal election (the Green Party’s call to legalize marijuana notwithstanding). What is at issue is how we – in each province, every region, from coast to coast to coast – are being asked to change they way we to respond to crimes when they occur.

Our choice in this regard is being couched in clear, alluring terms. Do we want to send a strong message to criminals? (of course). Do we want to stand up for victims? (you bet). Do we want a safer Canada? (Alleluia!). The answers are offered as inexorable: more people must be locked up for more crimes, and for longer. Simple.

Reforms to sentencing legislation, however, affect some Canadians much more than others. And it is not urban gangsters who come to mind, although these are the bogeymen we are being asked to imagine. In the Aboriginal communities where I work, the incidence of violence and substance abuse can be shockingly high, and persists as a grim symptom of cyclical trauma. In these places, victims and offenders are closely related, with sources of suffering and solace that are deeply enmeshed. Here, the cleaving punishment of long imprisonment is often not seen as an appropriate or effective response to wrongdoing, being not resonant with traditions that value relational healing over individual blame. This remains true even as Aboriginal communities have long been subject to the dictates and ideologies of a Canadian justice system that does not much share or seemingly understand such restorative approaches.

To the extent that any meaningful justice gets done in this intercultural environment, it is due largely to the ability of sentencing courts to moderate the law’s retributive ethic with an allowance to local wisdom. This can come by way of the advice of elders and community circles, in-depth investigations into an offender’s life circumstances, or appeals, direct or indirect, from the person(s) harmed by a criminal act. The end result, of course, is most clearly measured in sentences that are somewhat lower than the national ‘average’. But the importance of attempts to narrow the gaps between different traditions, while also attending to the immense needs that crime uncovers, is poorly reflected in mere numbers. The true effectiveness of any system of justice depends, not on its coercive power, but its moral authority. And in many Aboriginal communities, Canada’s legal apparatus has an unenviable record to work against. This is why the Supreme Court of Canada has strongly endorsed alternative responses to the travesty of high crime and incarceration rates in Aboriginal communities.

A roll-out of mandatory sentences would threaten the (small) gains that have been made in making criminal courts more alive to these realities, and may perversely make communities less safe for actual victims. Faced with the certainty of having family members jailed in far-away institutions, and returned, if at all, bearing the burdens of further embitterment, victims and witnesses of violent crimes and drug trafficking will be less inclined to make reports, seek support, and take the stand. At a time when the criminal justice system desperately needs to build confidence among vulnerable persons and communities, who equally need the security of reflective, responsive justice structures, these initiatives will push such possibilities further away.

The architects of this law-and-order agenda were quite obviously not thinking of the small minority of Canadians who live, and have always lived, in the vast majority of this country’s land. When you cast your ballot in this election, perhaps you could spare them a moment’s consideration. Your choice could tip a very important balance.

blockages and flows

I have been thinking about energy, in relation to criminal justice. If we (as a system) are not effectively engaging with the energies that necessarily arise in consequence of conflict or wrongdoing, we are effectively engaged in their frustration. So the value of such a system, perversely, becomes centrally that of the containment or neutralization of such energies. They are penned up by abstruse procedures, drowned out by inaccessible language, ruled out of order by the lords of this game.

I see my client seething, head in his hands, wanting only to release himself from a prison of body and mind. I hear myself telling him it can't be done, not today, not without scheduling this and filing that. We both look at a letter that has been carefully dictated by aging parents, pleading for him to return home, help them with the early springtime chores. But these frail, unilingual elders, the court says, will have to somehow traverse the winter road 200kms south if they want to make their support for their son official. Just to plead for his release. Our energies swirl, like a mad yet insufficient tempest, within the walls the law throws up. I escape, of course, at the end of every day, but men like these must live within them.

Sioux Lookout...

...is nestled where I could set out into the forest, stand, turn full circle, exclaim 'This is it!', and know it to be true for days in every direction. The unsubtle sovereignty of the boreal land, its many shades at once mute and loudly signalled in the very names of its trees - red pine, white pine, yellow cedar, black spruce. All still green despite four months of deep snow and sap-stilling temperatures. From 10,000 feet up, where I spend more and more of my mornings and sunsets, these colours and textures blend into more abstract patterns, of broad white lakes and dark woodlands, ivory rivers and bald cut-blocks, repeating outwards in apparently endless variety. Dotted down there, where I spend most of my middays, are the 49 communities of the Nishnawbe-Aski Nation. They range in size from a few hundred inhabitants to two thousand or more, and are only roughly summed up in terms of common features - there are at least three major indigenous languages (Cree, Oji-Cree, and Ojibway), three different treaties (9, 5, and 3), and histories as diverse but interconnected as the river systems that weave through its France-sized vastness.

I have no business, anyway, in describing the essence or identity of any of these places. Their similarities and differences may be plotted on any number of variables, and in any case, such graphs would map out only the merest of true stories. It is enough to say that I am sent in to all of these habitations with identical orders, as a member of a culture that prides itself on consistency and culture-blindness. It is enough - and true - to portray the justice system in this so-called 'remote' region as a paradigm of "us and them", because, although the system's values officially eschew such a reality, it is glaringly reflected in the faces of those who comprise criminal courts in all the reserves I've visited. On one hand, there is the 'us' (or 'them') of the professional suit-and-robe wearing cohort that descends from the southern horizon to call court in session, and retreats back there when the work is deemed done. On the other, the 'work' themselves - folks in boots, hats, or shackles, the ones whose surnames might mantle the very gyms the court erects itself in, whose families personalize a community's schools and clinics and gravestones. To one side the lawyers, to the other the (supposed) source of law. It is for the benefit of these people, our leaders proclaim, that legal arts are administered.

As defence counsel, of course, I needn't be disturbed by the absurdity of such claims. I could just put my head down and chew through the files, profit from the abundance of charges that bleed out of these communities. I help my clients navigate the labyrinths of the trouble they find themselves in - but it is a trouble increasingly defined and determined by the assumptions, (mis)conceptions, and judgments of a politically rigged system, not the environment of grounded, intelligible, and accountable justice that our politicians apparently promise. I could just keep doing this job. But my anger suggests that I shouldn't. Who would want hollow words to drown out the sound of wisdom?

Climate changes

This long silence describes a large circle. And, very soon, a Q.

Northern Ontario, whose seasons are marked by the adornments on pickups – from canoes to carcasses, snowploughs to skidoos – and whose courtrooms are counted on one or two hands – is a long way from urban BC. Both places, these past 18 months, have given me home, and both have been ground for digging away at the issues that this site addresses. A year in Vancouver let me observe how different courts speak and listen to the basic moral concepts of crime – guilt, responsibility, fairness and punishment – in a system of ‘summary’ (i.e. guilty plea-based) justice. Anyone interested in a 95,000 word exegesis on the topic is welcome to consult my LL.M. thesis, available here.


Done? Great. Now return with me to Thunder Bay, where very little seems to have changed. Since August, I've been back practicing criminal law, my year of research both a memory and a fleshy presence. This is where, for better or worse, we make sense of laws and lawbreaking. We do it as judges, or prosecutors, or defence lawyers. We do it as witnesses and spectators and journalists. We do it as accused persons and convicts, and we do it as victims. I do so with a bit of experience in a few of these roles; but each role contains innumerable variations. For all I have learned about the rules and strategies essential to my job, the basic fact remains: our courts are only effective insofar as they resound in the hearts of those whom they purport to command. And in Northern Ontario, the congestion of agendas, ideologies, and cultures that churn in every justice process seems particularly unhealthy.

Next week I'm relocating to Sioux Lookout, a small town closer to the centre of these apparent problems, and, I hope, some potential improvements. I will try to share what I learn there.