sentences

2011-12-17T12:54:00.000-08:00

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

2011-10-27T14:27:00.001-07:00

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...

2011-10-13T13:49:00.000-07:00

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

2011-09-29T10:06:00.000-07:00

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

2011-09-26T19:24:00.000-07:00

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

2011-09-26T08:49:00.000-07:00

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

2011-09-22T13:48:00.000-07:00

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

2011-09-18T20:29:00.000-07:00

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

2011-04-18T18:56:00.000-07:00

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

2011-03-27T19:21:00.000-07:00

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...

2011-03-06T18:45:00.000-08:00

...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

2011-01-17T18:20:00.000-08:00

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.

Do you know what our government is doing? (do they?)

2009-07-15T17:30:00.000-07:00

Ultimately, it comes down to what those of us, with the problem in our laps, are able to do. We may be winded by malaise or cynicism, befuddled by the apparent incoherence of competition, or hobbled by our own or adversaries' anger, but these are all challenges that can be bravely faced, accepted and, sometimes, dissolved by the wisdom held within us. There are other impediments though, frustratingly constructed by our public representatives, that seem designed to stymie the worth of our best, most useful efforts. Specifically, I'm talking about the creeping incidence of laws creating mandatory jail sentences.

Over the course of its administration, the Federal Conservative government has introduced several pieces of criminal justice legislation under righteous-sounding baners such as "Tackling Violent Crime" and "Truth in Sentencing". All are aimed at winnowing and, in some instances ending, judges' discretion (and thus lawyers' sentencing advocacy), as having resulted in an unbalanced, over-liberal landscape that rewards wrongdoers and salts the wounds of victims. The perception is of courts who gleefully spend their days slapping law-abiding society in the face.

These legislative volleys, despite the crystelline Newspeak with which they are heralded, are driven by political and ideological gunpowder, not by evidence that they will actually do anything to make Canada (already - if you are not Aboriginal, addicted, and/or desperately poor - one of the safest places in the world) any more secure. But, all the same, they are easily applauded by the populace, and have sparked little dissent or debate in influential circles.

So why am I aggrieved? Unlike our government, I cannot assume to command the complete Truth on this or any issue. But I can tell you from experience that the consequences of this agenda will fall heaviest, and with the least justice, upon our most vulnerable citizens.

Imagine: you are being pummelled in an unfair fight; you are drunk; you retaliate with the nearest object; someone is suddenly bloodied. Such an act, according to our law, can constitute an aggravated assault. Before, a judge might be able to look at a spectrum of factors in deciding what to do: Has this happened before? Is the guy ok? Are you working, supporting a family, sorry for what you did, controlling the roots of it? People who commit crimes can be all these things. Before, I might be able to walk into a courtroom with a client big enough to admit a wrong, but not 'bad' enough to be sent to jail.

Now, impotent to even influence whether our not they will be going to jail, my clients and I are left with cold and polar options: plead not guilty (in spite of what one knows), forcing the prosecution to prove its case through the slow, heavy mechanism of a trial, or succumb to the certainty that an acceptance of responsibility is going to put them in jail. Often, our moral/mental cupboards swept bare of other resources and imagination, jail is indeed made unavoidable, but this need not always be the case. In an increasing number of otherwise reasonable circumstances, however, we are no longer allowed to ask.

the root of it

2009-06-21T16:08:00.000-07:00

After a week of travel – early mornings squashed into small propeller planes, late exhausted evenings coming home – it’s hard to remember exactly where each day is spent. But then, such focus never has been easy. Each village is distinct, of course, unique, like every client and all the many families who cram the backs of varied public halls, but the truth of this is smothered by the tiredness, and, so sadly, the present nature of my trade.

I do not think I am being controversial by saying that, by and large, we do not know the people that we serve. And really, how could we? By training we are meant to parse apart, issue-spot and problem-solve, by numbers we are urban, old, and white, and by timing we are ragged and on-guard: confronted by a law-and-order clime, put-upon and underfunded, sweating out our anger in the growing gap between the paper rights we must protect and the barrier realities. For most in my profession, now, the fight is on, and the enemy is a state-fed public who doesn’t (until it happens to one of them) give two cents for the work we do. Fine – through three years of practice I know this as a worthwhile struggle, know that the thin-enough presumptions of fair trials and innocence would crumble without our persistent insistence, enervating though it may often be. This is a country-wide contest, fought with law-makers and opinion-spinners, cast in black-and-white and balance sheets. I will certainly support this lawyer’s role.

But something, small and deeper, is plaguing me as well. On a picnic bench outside the Armstrong court on summer’s first hot afternoon, an old man joins me as I’m picking through a soggy lunch. We talk, in the door-crack way we can, about his hundred dollar fine (criminal penalties are usually much lighter in the north, to accommodate our guilt and insufficiency), the healing lodge on Lake Nipigon, adopted daughters and the start of blueberry season. It is a rare and brief occasion to get to know a client, and, in theory and empathy at least, it will allow me to better represent him if by chance he needs my services again. Though I must thread everything through law, the greatest part of my usefulness is simply in telling someone’s story to a powerful stranger, to justify a particular outcome.

We merely pantomime this process when we do not know the people we serve. We go through official motions and obtain required results, but we do, as a system, next to nothing good for the humans and communities we serve. I know this because the same folks and families are brought back time and time again, the same witnesses don’t show, the same silences meet our ignorant pleas. Only divisions do this.

At the end of another long day of charades, in the hub that is Sioux Lookout’s airport, a probation officer opens up to me that he’s getting out of the game. “It’s absurd that I’m the one responsible for sentences. It’s ridiculous to expect me to be in charge of their change”. Millions of dollars are spent throwing us up into these communities, invested with everything but the essential knowledge and belonging true justice needs. The problem is immense, but solving it, I believe, begins with a simple admission: we are not the right ones for this job.

Say the names

2009-05-26T19:21:00.000-07:00

I hardly need words to say that they carry meaning. Names, in particular, strike me as tiny ciphers of human history, syllables that, keenly listened to, tell much about how the past has marked us, and how we understand our now. In this part of the world, my mind and tongue constantly trip along the words of those for whom this place has always been home. This isn’t unique, of course, to northwestern Ontario: we are accustomed, in this country, to assuming custody over names that came long before their current designates. Our cities, parks and suburbs are swept through with original languages: Tadoussac and Mississauga, Ottawa and Saskatoon, Yoho and Penticton. But – in rendering stale such tantalising words – we are far less apt to remember their freshness, and taste again on our tongues the generous mingling of sound and story. Kakekeyash, Mishkegogamang. Achneepineskum and Neskantaga. Quequish, Ostamus – what do names really mean?

So many have been rendered ‘easy’, anglicised: Yellowhead, Big Trout, Summer Beaver, Roundsky, approximations and translations that eventually, through force of use and authority, find their way onto maps and family trees. Almost always, it seems, they are imposed over more intricate appellations. The change can disguise some fascinating shifts in perspective. A wise and charitable colleague, who’s lived here longer than he’s been alive, tells me that the common name Nauagessic is usually taken to mean ‘Bigsky’, or ‘Farsky’. A more accurate translation, however, encompassing the Ojibway understanding of the cosmos, would have to convey the sense that “you were standing at the far edge of the universe, and you were looking back, and you could see all the way across it.”

Others, come across in the rush through court lists and community circuits, are born directly from the awkwardness of colonial encounter. Yesno, for example, is a prominent family name in Eabametoong (aka Fort Hope). The patriarch, apparently, was an important spokesperson in the 1905 treaty-making process, but his English consisted of, you guessed it, two words. And I don’t know the story behind the Nothing family, but am willing to assume that it wasn’t their surname from time immemorial.

So it goes. The apparently permanent is infinitely malleable, and what you see, or say, isn’t necessarily what might have been. I’m reminded to slow down and resist mumbling and mangling the difficult names, stop skimming across those I think I know – we’re all poorer for it.

the debts we deserve (or owe you don't)

2009-04-12T13:36:00.000-07:00

The very poor are different than you or me, though perhaps less in manner than in magnitude –the sheer overlap of their challenges, the lonely recourse to institutions, the width of chasm so often dwarfing the breadth of reach. It almost always begins early, long before the sun rises on anything resembling autonomy: with stressed or absent parents, with special or ordinary needs not met, with crummy simulacrums of home. Omens for the journey onwards, a journey that sometimes, in conditions come common in poverty, treads into the maze of my profession. Say what you will about my lens, my tinge, but these are the people I get: angry, bereft, confused and addicted, impressed by the meanness of life, most having done things they don’t want to think about, all having been done unto in ways they never deserved. We may try to draw our bright lines between victim and sinner, but I know the blurry truth of it – walk into a prison, ask who there’s been abused. One must rise from the muck of upbringing, of course, one must resist passing on the shit one’s been served. Know that the ones in our prisons are the ones most confronted by this ideal. We must ask, at least, how us others – in our systems – are allowing and reflecting such a hallowed, daunting process.

It seems elementary that us humans aren’t able to ascend the heights of our common moral calling – to respect ourselves and each other, acknowledge our harms, create space for forgiveness – without having first attended to the basics. Addictions and extreme poverty are big obstacles, both symptom and cause of the troubled times that cause criminal conduct. This is, by and large, clearly immoral stuff – beating on the weaker, knee-jerk or drug-addled stealing, selling hot goods or prescription drugs. To these base misbehaviours must be added the nearly-inevitable breaches of court orders that haunt the unstable – sure, it’s obvious to promise that you’ll keep a curfew or stay away from booze in the cold clink of morning, but maintaining such resolutions is far from simple when you’re released back into the same old story. The two-step leads, of course, to jail, like Thunder Bay’s stone submarine of a structure built a century ago to house about a third of its current occupants. My ‘in-house’ clients, still stuck on the lowest rungs of the ladder of needs and capacities, are for the most part unable to mend the tears in social fabric that most that most directly resulted in their incarceration. Much as I might like to help them to, or loud as the public may bray for accountability, the odds are long, the house and language unsuited to the subtle task. What I think we can be grateful to prison for, however, is its role in jolting (some) folks into a real willingness to get a handle on their addictions. A clear majority of my clients clamour for treatment – they’ve reached Step One, they know they need it. But what should be a relative opportunity for celebration and steely-eyed progress is commonly lost to the crunch of economics and condemnation. “We can’t afford state-run rehab” the subtext goes, “and besides, these wastrels don’t deserve it. Let them clean up the mess they’ve made first”. Thus, we come to make mixed-up demands upon the very poor and/or addicted who have been (indeed ‘justly’) brought into the criminal system. But most won’t fulfill our- or their own- moral obligations if they haven’t first begun to clamber up from the pits their battered upbringings have pushed them. And we’re not - or less and less – inclined to reach far enough down to really help.

Room-inating

2009-03-15T19:18:00.001-07:00

Courthouses are not renowned embodiments of calm. Far from encouraging the gravitas that is (or was) granted them by virtue of their status as society’s moral custodians, their environs are more likely to evoke memories of cramped and chaotic principles’ offices, where, outside of the forcibly-hushed radius of judicial earshot, variously put-upon people pace, panic, droop, or lip off about what nonsense brought them here. And as a lawyer, ever glomping about from chamber to chamber, muttering and tripping up like a Monty Python madman, I realise I’m usually not the most soothing of personas myself. The disconnect can beggar us. I will often meet someone, perhaps a new client, or a man I’ve grown tired of, maybe the sobbing partner of the locked-up slob downstairs, I will encounter parents, sisters, angry or listless, all manner of people needing some voice to steady theirs, or just a quiet space to sort out something important. But such spaces – in their temporal and physical dimensions, are extremely difficult to find in the few courthouses I’ve practiced in. Some, because they work there or through strength or cynicism have shaken it off, don’t seem to mind the lack of sanctuary: this just isn’t where you come to mellow out, as the thinking likely goes. But in my own, often fragile, aching mind, these pressurised places are most appropriate for such peaceful enclosures.

Other stress-inducing institutions, and the buildings embodying them, have figured out this quite simple equation. Think of the airports and hospitals you’ve been in: even though most people may not use them, it’s usually possible to find a little room set aside for silence, calm, prayer, contemplation, whatever you may need to empty or replenish. Call it a chapel, a refuge, a non-denominational comfort room, but the important thing is that it is present, and available for the moment you require. In setting even a tiny fraction of real estate aside for such soul-searching or spirit nourishing purposes, the architects recognise and honour the reality of this need. And this is a profoundly respectful human sign, in otherwise impersonal or belittling contexts.

Thunder Bay recently announced that it would be (someday) replacing its existing court, so rich in mould and linoleum, with a new construction. We’re already discussing what the building should look like, what it needs. Robbing room. A library. Private washrooms for lawyers, certainly. Maybe even a kitchenette. But, swallow-throated as I am when it comes to speaking up about these matters, I really do feel that a little sacred space – open to everyone who comes here – couldn’t hurt this business we’re about.

defending the defender

2009-02-28T13:50:00.000-08:00

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

2009-02-02T19:18:00.000-08:00

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.

Year of the ox

2009-01-24T15:13:00.000-08:00

New moon, old stories. Courts thrown up in gyms and churches, courts carved and marbled in the hearts of cities, one law lugged in texts and testaments between them all. This practice, awesome and absurd, consumes the most of me. But this daily, endless work is not enough. Truth must roost somewhere, and for me, for now it must be here, in the flock and flutter of mere words, in stories stripped of names, of places, of everything that might specifically identify the places and players. True though, as true as possible. I need to tell them because they matter, and I fear they can’t be adequately told or heard in courtrooms, at least not in the machinery we’ve made. So I try, tiptoeing through the dangers of a job that can, with a violent orthodoxy that spines most every authority, quell the tellings, order them unimportant.

What is it that I want to have your inner narrator orate? Sounds even the first person, or the court reporter, won’t often notice, or neglect as meaningless until, perhaps, much later. Listen: A young man is sobbing over the phone to the struck embarrassment of his lawyer. Sick, hiccupping the distance between rooming house and office, each of us the distant thirds of a three-hundred mile triangle whose crucial angle is the small community far north of the cities where we sit. The boy-man’s a broken voice on the far side of the line: “I can’t come back here. Ain’t comin’ back here. Fuck, you don’t know, you gotta change my conditions. This is bullshit.” Angry words, but not spoken with violence or arrogance. The voice is thin, pleading. Laugh or yell at it, if you like, emphasise its futility, say man, boy, you’re not going home, not yet. Spit out the bald truth – this one’s had his chances, lump him in with the other lost ones who have to wait out the months in Kenora, until the court gets done with ‘em, or they trip up in desperation and land back in the DJ, just down the road. Or worse. The options fall like dominos – first chance, second chance, last chance, jail. Logic plain for the able to obey. But I know my young man is taking little notice of such official plans, however much I try to stress their importance upon his trembling life. He doesn’t understand – a job has opened up at home, and a teenage girl is struggling with the little one they’ve made, and his mother, who in the police report was last seen cradling her head against his blows, his mother has forgiven him, or agreed it never happened, whatever works, she’ll send a letter. The patience – hardly abundant amongst those of us whose great daily challenge might be a slow server or checkout line – has long since drained from the voice I impotently listen to, miles and worlds away. And I pray the worst won’t happen, not jail, not crumpled knuckles against some importunate wall, not even the sick oblivion of homebrew or hairspray. I pray this boy won’t, by poisoned choice, cease living.

This prayer – so basic to anyone who’s loved or seen the frightened eyes of one of their own in danger – this prayer is projected upon the walls of my profession, against the mandate our state has given an army of strangers, a quiver of rules; all to attain that incomplete scripture, to seek justice. Ordained and manifest, it regulates his binding, justifies his exile. Far, far from finished with the boy, I only hope to shepherd him through to its end. And I know it is of essence noble, acknowledge it won’t be abandoned by this or any people. Offences will have their process, their consequence. But our way and this boy are so distant, alien, nearly invisible to each other. And the gulf in between is where chances and lives are lost. Where, I ask, do we fit that scripture’s next phrases?

These burning hearts in hell

2008-12-06T11:06:00.000-08:00

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

2008-11-27T18:16:00.000-08:00

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

2008-11-17T18:36:00.000-08:00

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

2008-11-09T20:13:00.000-08:00

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

2008-11-03T06:05:00.000-08:00

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

2008-10-19T06:06:00.000-07:00

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

2008-10-08T19:06:00.000-07:00

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

2008-09-19T14:00:00.001-07:00

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

2008-09-09T19:22:00.000-07:00

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

2008-09-01T18:58:00.000-07:00

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

2008-08-11T11:46:00.000-07:00

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

2008-08-11T11:39:00.000-07:00

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

2008-08-11T11:38:00.000-07:00

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

2008-08-11T11:37:00.000-07:00

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

2008-08-11T11:35:00.000-07:00

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

2008-08-11T11:34:00.000-07:00

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

2008-08-11T11:33:00.000-07:00

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

2008-08-11T11:20:00.000-07:00

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.”

Thought warehouse

2007-08-01T13:53:00.000-07:00

So all my stuff got stolen from our car in the rockies. well, not everything - we still had our clothes and the car itself, but gone were most things a thief or stranger would consider valuable, including my laptop. I'm pretty much over the loss, but there were a lot of words on that box that I probably should have saved elsewhere...here, perhaps. Not that I want to dump my lumpy verbiage on a public forum per se, but at least if these words are stolen I'd still get to keep them. That said, here's a little essay on my struggles with and hopes for principled defence practice, rescued from the clutches of someone in likely similar circumstances to the folks I try to help.

This isn’t going to be a scholarly article on the finer points of criminal law. At less than a year in practice, I’m simply not competent to increase your appreciation of the delicacies of cross-examining prior inconsistent statements or how our courts might further peel open the Kienapple principle. I do, however, come to these pages with some burning ideas about justice, and how defence counsel in particular might facilitate better connections between the law’s lofty promise and its more labyrinthine processes.

After several months on the job, I know little more than it’s not an easy one, particularly for those who desire to practice coherently as well as competently. For me, whose job thus far is characterized by interactions with misguided youth and drifting adults, this means recognizing the inherently moral aspect of a profession that, sadly, often seems to suggest that such frankness is best left to one side lest it sully the legal issues. I remember one brusquely jovial defence lawyer who was brought in to our bar admission course to tell us how it was. “Don’t let ‘em talk about the offence!” he firmly snorted. “The more they inculpate themselves, the fewer avenues you’ll have to win the case.” Much better, in his well-practiced opinion, to simply read the disclosure, spot the possible weaknesses in the Crown’s evidence, and then tell the silenced client what stratagems seemed best to get him or her “off”. This approach, while acknowledging the bedrock principle that we lawyers cannot tell a lie (or knowingly let one be told), frankly made my stomach turn. This was not the noble calling I envisioned working for. Indeed it seemed little better than story-laundering, and I resolved that, even if strictly ethical, it would never be the right way for me to practice.

Having earned a slight bit of experience from which to look back on this vow, I have somewhat more understanding as to why that lawyer spoke the way he did, and why I still can’t do the same. I must stress here that, unquestionably, criminal defence counsel must act in their clients’ best interests, which includes raising every potential transgression of their rights, testing all the prosecution’s evidence, and above all, giving reasonable credence to clients’ narratives. As I’m often told by senior lawyers, it’s not our job to judge the case. But, perhaps with this zeal of staunch advocacy commanding our critical senses, we often forget to see the broader issues brought to us by those we serve, and listen to the stories they’re often yearning to tell. ‘Good’ criminal lawyering is often viewed as requiring strict client discipline. When such guidance becomes censorship, however, many of the deeper aims of the justice system, being those held out by the Criminal Code and common parlance as an ambitious blend of denouncing unlawful conduct, fostering accountability, and encouraging rehabilitation, necessarily suffer. So why do we still do it?

First, and perhaps most justifiable for those who work within them, the legal aid structures in most provinces afford lawyers little incentive to become involved in the messy underlying issues in our clients’ lives. With a scant handful of hours per legal aid certificate, there simply isn’t time, I hear many colleagues say, to sit down with some poor accused and dig up the root cause of their misbehaviour, let alone look for ways to help them transcend it. “Besides,” I’ve heard barked too many times, “we’re not social workers!” The most profitable way to make it in this business is by stacking the files up with factory efficiency, moving them on in batch adjournments until they eventually fall off the assembly line in the usual guilt-heavy blend of plea, withdrawal, or trial. Giving the time each case might ideally deserve would mean even less for tending to our own well-being, something many lawyers are woefully apt to let slide anyway.

Second, even though most criminal charges result in a guilty plea of some sort, our adversarial culture still prioritises winning. It’s the natural consequence of the competitive jousting that still predominates in schools, bars, and, er, bars, and I know better than to try to displace it. Achieving a ‘good’ result for a client, within the bounds that law and ethics draw for us, is no doubt valid cause for back-patting. However, the winning mentality can also lead to implicit or explicit stifling of our clients’ urge to tell their stories. Understandably, lawyers tend not to like it when a client discloses their culpability, especially to authority figures who likely don’t, no matter what they may say, care about much more than chalking up a conviction. But, once they’re in our offices and we’ve made it clear that we can’t lie for them, or ethically ignore what they choose to tell us about what they may have done, a carefully received and considered admission can have significant therapeutic benefits. Colloquially speaking, if a client wants to get something off their chest, why not let them? Moreover, with this fuller picture of what led to the charge, defence counsel are arguably in a better position, perhaps not to ‘win’, but to appropriately advise and guide clients towards just and helpful resolutions of their cases. Many if not most accused persons, in my slight experience, have some sense of justice in relation to their transgressions and treatment, and appreciate honesty and fair treatment. They may not feel they get it from police, Crown, or even courts, but caring, dedicated defence counsel can go some ways towards righting the imbalance (whether we can trust an increasingly law-and-order political climate to do more than retributively pounce on truth-telling is another difficulty, but one which I submit is better substantially engaged with than fearfully avoided).

Finally, I offer a related and overarching point, one which is easily disregarded but, in my view, inescapable for all those searching for answers to why the justice system so often fails to facilitate justice. This is simply that we lawyers are humans, working for other humans, who are as deserving co-participants in the process as any professional (indeed, the same can be said of crime victims, who are afforded even less representation by our current framework). Our clients, in spite of the gulfs of education, social standing, and economic stability that separate most of them from most of us, are, by and large, just as capable of moral reasoning and comprehension as anyone, even if their lived experience (including that gained in the justice system) has obscured it beneath selfishness and strategy. Silencing clients during those valuable moments when issues of accountability do arise does them a profound disservice, and, in the name of protecting their “best interests”, can effectively slam the door on any deeper engagement with the meaning of justice in their particular context. No one deserves to be shielded from their own conscience, and in my mind this is certainly not what lawyers or the legal system is meant to do.

Despite any air of conviction that may appear to waft from the above comments, at this stage of my career I am possessed of little in the way of answers to the confounding problem of how defence lawyers may be servants of a just society as well as individual clients. Certainly there are those, like the gladiator who addressed our bar class, who quite easily hold the view that lawyers do know what’s best for those they represent, and that this is precisely synonymous with unfettered legal wizardry. In many cases they are doubtlessly right, and do the job that both society and their clients expect of them. But nearly every day, over the course of these few months of practice, I have also met people, mostly young but some very ‘experienced’, who want to tell me what happened, who need their side of the story to be heard. Letting them do so has occasioned more opportunities for both my and their learning about that ineffable but compelling quality we call justice than magisterially shushing them up would ever have done. And it’s what ultimately is making me proud to be able to hold myself out – and up – as a lawyer.

slippery slopes

2007-06-04T14:11:00.000-07:00

I can feel my views about this work changing. Throughout my education, and even more intensely when I actually started practising, I saw myself as responding to a call to assist in restorations, in resolutions, in creating positive shared outcomes on behalf of people facing difficult situations, and hard choices. People charged with crimes need help, and I definitely want to help them. Only when I started I figured that co-operating with the various authorities in their lives, the cops, the crown, the courts, the children's aid societies, was a good means of working towards that rare and delicate place where help is not a battlefield, where all interests intersect and become one. I encouraged openness, admissions, full disclosure, I talked about healing; I did all this because I believed that these so-called mature, honest ways of behaving would earn my clients some measure of respect and understanding in the system. I did this on the assumption that justice professionals care about truth, and more so, care about untangling, however partially, the knots in people's lives that create crime. It increasingly seems though, that I thought wrong. While certain players within these powerful organisations definitely care about helping heal people's brokenness, the institutions themselves don't foster the necessary creative, compassionate orientation. Worse, the justice structures I'm encountering don't even seem to honour the hard work of truth-telling, let alone the restoration of right relations between individuals. In an overloaded system that's obsessed with process shy about substance, I'm learning that so often the best I can do for vulnerable clients (and, truly, accused persons before the courts are some of society's most pitiable souls), is to protect them somewhat from the ravages of the state's un-nuanced punitiveness. Cops in this town routinely toss every conceivable charge on the paper, and then conduct investigations tapered solely towards proving their case. Crowns, for the most part, seem intent on either covering their ass by being 'reasonably' conservative, or just plain bloody-minded, convinced of a person's guilt (and thus badness) the moment the police package lands on their desks (which, sadly, is usually three minutes before they're authoritatively speaking to it in court). With such a steely array of state-sharpened swords set against my client, it's perhaps no wonder that I'm falling more and more into the common defence orientation as unyielding shield wielder. My clients may not morally benefit from this unfortunate reality, but at least they'll be slightly less likely to be tossed in jail, which as far as I can tell does far more harm than good to their innate humanity.

bailing leaks

2007-05-30T19:43:00.001-07:00

What I want to remember (and tell others): Ms. B, wheezing and wheeling her oxygen cart out of the courtroom, disbelieving what just happened to her son. Looking to me for an explanation i can only hastily deliver, like a menu with nothing good to offer. "Don't they care that he didn't go to jail for five years?" she asks, the frustration acute as it is impotent. "Don't they care he's turned his life around, and then they go and send him back there?" No, Ms. B, there's not a santa claus. Not for young men with criminal pasts. This is bail court in Hamilton, maybe most cities in this slick-surfaced system. Where all the procedure in the world can't protect someone mixed up in the shitty situation of being charged with a crime, and having a record, and being too poor or poorly-connected to post cash. Even if the case is flimsy. Even if he's doing what he can, working, caring for a dying mom. And, in the sickly-lit cellblock below the courthouse after his bail has been denied, my client pleads that he can't spend the summer in jail waiting for a trial. Even if the charge is bogus, he wants to plead. This is how the auto-miscarriages of justice begin, the failures far more common, far less trumpeted than wrongful convictions in high-profile trials. Once a justice of the peace figures a guy is probably guilty, and will probably breach the conditions of his release, the game's almost always over. Cards dealt from a stacked deck. This might not bother most people, but it makes me mad as hell. Because in the eddied hours between when a fella is arrested and when he's brought up for bail, there's no chance to mount a defence, not one in any way comparable to that which the police are able to mustre. This wouldn't be so bad if the cops did full and unbiased investigations, but, unfortunately, they don't. They shoot for convictions. They turn grey into black. So, in the space of a few vertigoed days, someone can go from being free, to being accused of a crime (but, of course, still legally innocent), to being held in a detention centre with Nothing on offer, a holding pen for men facing the brutal choice of accepting the case against them, or waiting and waiting for the trial that is their right. Getting 20 minutes of fresh air a day. Losing their apartments, their possessions, their relationships. Bail is so important, and is far too often denied. Just another aspect of why for too many people, for too many times when it really matters, justice doesn't.

The tender scent of failure

2007-05-27T15:46:00.000-07:00

so it's a muggy sunday eve in western hamilton, and, because a man may be stepped over in a doorway, there's another bloody war going on, the lilacs are blooming, and justice is a dirty word, i've decided to start another blog. This is only some of why.