Climate changes

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

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


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

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

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

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

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

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)

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

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

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.