Folly and arrogance

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

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

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

Year of the ox

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

I've been very busy.

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

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

The pain of others

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

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

life enfolds

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

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

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

Changing the guard

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

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

talkin' in the free world

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

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

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