I spent all of last week thinking hard about law. Given that I am a geeky lawyer, this is not surprising. But there was one crucial and exciting difference about this kind of work: Canadian law, for once, was not occupying centre stage.
Prince Rupert is a small city on the North Pacific coast, a Canadian settlement in the heart of Ts’mysen(Tsmishian) territory. All the ‘usual’ institutions of law are here: the RCMP on patrol in big trucks and blue uniforms (a buffalo’s head stares out from their badges), the brick courthouse sheltering old books and tired arguments, the government buildings stocked with policies shipped out from Victoria or Ottawa. This is the law that most of us are used to encountering, as friends, functionaries, or foes. This is the law that, with its wealth, power, and authority as ‘ours’, shapes lives and creates towns, provinces, a country. And this is the same law that, through the Indian Act and related legislation, has long defined virtually everything it means to be Indian in Canada.
But not Ts’mysen. Not Haida. Not Cree, nor Gitxsan, not Gwich’in nor Anishinaabeg. Every nation has laws, self-made guides for living well and resolving problems, but indigenous laws have been degraded, dismissed, and disrespected by the colonial-Canadian state since it first presumed to know and control the territories over which its flags still fly today. Canadian law, as well-intentioned as it might be (and it often simply isn’t), remains marked by an arrogant unwillingness to accept that it is not the best, or, indeed, only source of cohesion and control in the lives of its subjects.
I gathered with members of these nations, hereditary Chiefs and Matriarchs, academics and fishery workers, elders and young people, in a beautiful log-timbered Ts’mysen space, but not to work on, or
even against, Canadian law. We were in Prince Rupert for a three-day workshop entitled “Revitalizing Indigenous Law and Changing the Lawscape of Canada”, organized by the Indigenous Law Research Unit at the University of Victoria. Under the guidance of legal scholars Val Napoleon and Hadley Friedland, we studied, synthesized, and practiced applying Ts’mysen and Gitxsan legal principles, as expressed in the oral histories and teachings that have been maintained by clans and elders, codified in crests and totems, and, lately, translated into texts and court transcripts. Such laws, we learned (if we didn’t already know), really worked to repair conflict, to compensate for loss, and to regulate relations within and between clans, house groups, and whole nations. Such laws did not, as Canadian laws do, depend on a rigid and linear hierarchy of written codes and enforcement institutions, but they did have real force and authority to do the hard, necessary work that all law is called upon to do. There is an unacceptable, harmful deficit apparent in the lives of many indigenous people and nations in this country. Traditional legal orders have broken down, and Canadian laws are incapable of taking their place – they are, in various implicit and explicit ways, often rejected by the nations they seek to define and regulate.
One of the ongoing harms that the Canadian State (and society in general) inflicts upon indigenous nations is that of categorization – lumping diverse nations, with different cultures, languages, laws, and ambitions, into a limited number of ‘boxes’ defined and regulated by Canadian law. Euro-Canadian convenience, stereotypes, and assumptions of superiority have allowed this to happen for centuries, but such boxes only hide the true stories of this country’s – and its many nations’ – past, present, and possible futures.
Over the three days of this workshop, I began to see more clearly the pillars upon which all effective legal orders must be built. Basically, they must make sense to the people they govern. They must offer sensible processes and guideposts to dealing with the problems of life. And they must, in a healthy society, allow everyone the space and assistance to be their best selves, both as individuals and as members of a greater whole.
Another thing – everyone’s laws and legal histories can seem strange, if viewed with the eyes of strangers. Over the days of learning about Ts’mysen, Haida, Gitxsan and Cree law, I encountered some
startling moments of seeing Canadian law as an outsider might. We too use odd emblems (including mythical beasts!), protect cherished symbols (remind me not to wear my fake military uniform in
public), and harness the seeming magic of taking oaths on books and standing when people wearing certain robes enter certain rooms. Suddenly, the reality of transmitting law in stories and transcribing it in totem poles ad name-holders did not seem so far-fetched. In fact, I realized, such living laws did, and do, make far more sense in this land, to these people, than anything Canada has cooked up in its stone houses. Although accepting the reality of multiple legal orders in one country may sound like a recipe for bureaucratic chaos or disaster, this needn’t be the case. As Canadians, we already have some practice working together across our distances and differences – we, as one country, already embrace a vast number of geographic legal jurisdictions (think federal, provincial, and municipal law), as well as several established legal communities: common law, civil law, and military law, to name three. With diligence and dedication, we can, and must, do even better to ensure that members of Canada’s indigenous nations regain and strengthen the sense of legal belonging that is so crucial collective well-being. If Canada is ever really going to realize its potential to be a post-colonial country, it must begin to recognize, respect, and work in reciprocal ways to integrate the indigenous laws that, like the amazingly resilient indigenous nations that sustain them, never died, never accepted defeat, and never will.
Tuesday, January 19, 2016
Monday, August 27, 2012
(Seven) Different Stories
Fundamentally, our understanding of justice is linked to our values – those qualities that, in responding to life’s challenges, matter most, and how their practice is seen as leading to desired outcomes. Consequently, the ‘doing’ of justice – processes, structures, methods – ought to closely reflect and facilitate the values that a given culture (or, in these days, a nation-state) holds dear.
So what, then, are the values that are embedded in the Canadian justice system, and how do they correspond to Anishinaabe values, in particular those enshrined in the Seven Grandfather teachings? Responding to this question helps us understand some of the frustrations and failures that the Canadian state and Nishnawbe-Aski Nation experience vis-à-vis each other in the realm of justice.
In principle, if not always in practice, the Canadian criminal justice system holds as sacred the following seven values:
Equal Treatment
This is the principle that all people must be subject to the same rules, and granted the same rights. Often depicted as a blindfolded woman, this idea of justice makes its demands and promises without favour or discrimination. In a society where the more powerful command more of the law’s resources, however, it is a value that is often difficult to sustain.
Individual Responsibility
Canadian justice places all its burdens and entitlements in the laps of individuals, setting them apart from their families, communities, and cultures. In the criminal system, this is observed mainly in respect of people who have been accused of a defined wrongdoing, in the context of a defined process that begins with an arrest and ends in a verdict (and, if that verdict is guilty, a sentence). It is the job of defence lawyers to guide defendants through the maze of rules and rituals that characterize this justice system, maximizing their legal protections and minimizing the legal burdens that the system may order them to bear.
Party Participation
Canadian justice depends on the involvement of those directly affected by conflict, but does so in a way that encourages opposition. In a system focused entirely on the responsibility of offenders, all non-accused participants (including those harmed by offending behaviour) become potential witnesses for the prosecution or defence, even unto being forced by law to tell their stories in the adversarial setting of a courtroom. The accused person him- or herself, by contrast, is granted the absolute right to remain silent. All he or she must indicate is a plea – guilty or not.
Rules – Evidence and Relevance
Canadian law creates strict boundaries within which criminal cases are defined, deliberated, and disposed of. These rules regulate every aspect of the stories that are told in court – how investigations are conducted, what witnesses can say, and the matters upon which decisions are made. This means that very rarely will the ‘full truth’ come out in the course of a trial or (especially) a guilty plea: some people will never be asked for their testimony, and those who do must only respond directly to the questions they are asked. This allows courts to be narrowly focused and relatively free from unfounded opinion, but also restricts the depth and breadth of every conflict that is adjudicated. It is not unusual for a court to consider a case satisfactorily settled, while the individuals involved struggle with a lack of closure or completeness.
Proof
Canadian justice operates under the presumption of innocence – that is, unless and until the prosecution presents sufficient evidence to convince a court, beyond a reasonable doubt, of a person’s guilt, that person ought not to be punished. Proof is the currency by which all the system’s judgments are meant to be purchased. Despite this value, however, Canadian justice still exerts considerable coercive force upon those accused of wrongdoing. Depending on their past history and the seriousness of their charges, defendants will be questioned, held in custody, offered deals, and otherwise pressured to ‘make the case against themselves’ by pleading guilty. In principle, of course, this decision must still be voluntary, sincere, and well-informed.
Proportional Punishment
Once guilt is ascertained – either after the weighty rituals of a trial or a defendant’s simple admission of guilt – the Canadian justice system promises to respond to wrongdoing by inflicting a just measure of pain upon offenders. While a person’s rehabilitation is held up as an important criterion in deciding what to do once a crime has been confirmed, punishment – most bluntly manifested as incarceration –is the system’s primary directive, its most basic moral response to illegal conduct. Proportionality – the principle that punishment must be individually apportioned according to the seriousness of the offence and the blameworthiness of the offender – is meant to justify the punishments the system imposes. In an era of mandatory minimum jail sentences, however, the ability of judges to perform this calibrating function is increasingly channelled and circumscribed by lawmakers’ rules about what crime is ‘worth’, punitively speaking.
Hierarchical Authority
While the parties to a case (usually represented by lawyers) are responsible for presenting evidence and argument, all determinations of fact, law, guilt, and punishment are made by the court (composed of a judge and, occasionally, a jury of the defendant’s ‘peers’). If the litigants don’t like these decisions, or consider them wrong, they can appeal to other judges, and on up a chain ending with the Supreme Court of Canada. While judicial decision-makers are bound to consider the (properly voiced) perspectives of those involved in conflict or wrongdoing, they are not there to cultivate consensus.
Together, the seven principles sketched out above are meant to add up to something called justice, as defined and applied by the Canadian system. While the practice of these qualities is complex and imperfect, there is clearly nothing ‘wrong’ with this choice of sustaining values. But it is just as clear that these values are not indigenous to Anishinaabe society. How well do they reflect, and how well can they facilitate, indigenous justice values, in particular the Grandfather Teachings of courage, love, humility, respect, truth, honesty, and wisdom?
While there are certainly some reflections of similarity between the two sets of values, after several years as a professional in the Canadian justice system, I am forced to conclude that the practice of these seven Canadian legal values severely restricts and undermines the flourishing of the Seven Grandfathers. While it is easy to suggest that any individual can choose to manifest Anishinaabe teachings in the mainstream court system (either as an offender, victim, or other participant), the Canadian system provides very meagre soil for these values to take root and grow. What does it mean, for example, to exhibit truth or honesty in a system that counsels silence, or limited, interest-based admissions? In a structure that puts a premium on litigating contested facts, and imposing individual blame and punishment, what does it mean to exhibit wisdom, or love?
I mean simply that different values contribute to different valuations – of what justice means and what its attendant systems are intended to enable. The adversarial basis of Canadian justice is remarkably well-suited, when its principles are followed, to a justice leavened with respect for individual rights, fair treatment, and proportional punishment imposed only upon battle-tested proof. But it is much less suited for the values that animate an Anishinaabe understanding of justice.
So what, then, are the values that are embedded in the Canadian justice system, and how do they correspond to Anishinaabe values, in particular those enshrined in the Seven Grandfather teachings? Responding to this question helps us understand some of the frustrations and failures that the Canadian state and Nishnawbe-Aski Nation experience vis-à-vis each other in the realm of justice.
In principle, if not always in practice, the Canadian criminal justice system holds as sacred the following seven values:
Equal Treatment
This is the principle that all people must be subject to the same rules, and granted the same rights. Often depicted as a blindfolded woman, this idea of justice makes its demands and promises without favour or discrimination. In a society where the more powerful command more of the law’s resources, however, it is a value that is often difficult to sustain.
Individual Responsibility
Canadian justice places all its burdens and entitlements in the laps of individuals, setting them apart from their families, communities, and cultures. In the criminal system, this is observed mainly in respect of people who have been accused of a defined wrongdoing, in the context of a defined process that begins with an arrest and ends in a verdict (and, if that verdict is guilty, a sentence). It is the job of defence lawyers to guide defendants through the maze of rules and rituals that characterize this justice system, maximizing their legal protections and minimizing the legal burdens that the system may order them to bear.
Party Participation
Canadian justice depends on the involvement of those directly affected by conflict, but does so in a way that encourages opposition. In a system focused entirely on the responsibility of offenders, all non-accused participants (including those harmed by offending behaviour) become potential witnesses for the prosecution or defence, even unto being forced by law to tell their stories in the adversarial setting of a courtroom. The accused person him- or herself, by contrast, is granted the absolute right to remain silent. All he or she must indicate is a plea – guilty or not.
Rules – Evidence and Relevance
Canadian law creates strict boundaries within which criminal cases are defined, deliberated, and disposed of. These rules regulate every aspect of the stories that are told in court – how investigations are conducted, what witnesses can say, and the matters upon which decisions are made. This means that very rarely will the ‘full truth’ come out in the course of a trial or (especially) a guilty plea: some people will never be asked for their testimony, and those who do must only respond directly to the questions they are asked. This allows courts to be narrowly focused and relatively free from unfounded opinion, but also restricts the depth and breadth of every conflict that is adjudicated. It is not unusual for a court to consider a case satisfactorily settled, while the individuals involved struggle with a lack of closure or completeness.
Proof
Canadian justice operates under the presumption of innocence – that is, unless and until the prosecution presents sufficient evidence to convince a court, beyond a reasonable doubt, of a person’s guilt, that person ought not to be punished. Proof is the currency by which all the system’s judgments are meant to be purchased. Despite this value, however, Canadian justice still exerts considerable coercive force upon those accused of wrongdoing. Depending on their past history and the seriousness of their charges, defendants will be questioned, held in custody, offered deals, and otherwise pressured to ‘make the case against themselves’ by pleading guilty. In principle, of course, this decision must still be voluntary, sincere, and well-informed.
Proportional Punishment
Once guilt is ascertained – either after the weighty rituals of a trial or a defendant’s simple admission of guilt – the Canadian justice system promises to respond to wrongdoing by inflicting a just measure of pain upon offenders. While a person’s rehabilitation is held up as an important criterion in deciding what to do once a crime has been confirmed, punishment – most bluntly manifested as incarceration –is the system’s primary directive, its most basic moral response to illegal conduct. Proportionality – the principle that punishment must be individually apportioned according to the seriousness of the offence and the blameworthiness of the offender – is meant to justify the punishments the system imposes. In an era of mandatory minimum jail sentences, however, the ability of judges to perform this calibrating function is increasingly channelled and circumscribed by lawmakers’ rules about what crime is ‘worth’, punitively speaking.
Hierarchical Authority
While the parties to a case (usually represented by lawyers) are responsible for presenting evidence and argument, all determinations of fact, law, guilt, and punishment are made by the court (composed of a judge and, occasionally, a jury of the defendant’s ‘peers’). If the litigants don’t like these decisions, or consider them wrong, they can appeal to other judges, and on up a chain ending with the Supreme Court of Canada. While judicial decision-makers are bound to consider the (properly voiced) perspectives of those involved in conflict or wrongdoing, they are not there to cultivate consensus.
Together, the seven principles sketched out above are meant to add up to something called justice, as defined and applied by the Canadian system. While the practice of these qualities is complex and imperfect, there is clearly nothing ‘wrong’ with this choice of sustaining values. But it is just as clear that these values are not indigenous to Anishinaabe society. How well do they reflect, and how well can they facilitate, indigenous justice values, in particular the Grandfather Teachings of courage, love, humility, respect, truth, honesty, and wisdom?
While there are certainly some reflections of similarity between the two sets of values, after several years as a professional in the Canadian justice system, I am forced to conclude that the practice of these seven Canadian legal values severely restricts and undermines the flourishing of the Seven Grandfathers. While it is easy to suggest that any individual can choose to manifest Anishinaabe teachings in the mainstream court system (either as an offender, victim, or other participant), the Canadian system provides very meagre soil for these values to take root and grow. What does it mean, for example, to exhibit truth or honesty in a system that counsels silence, or limited, interest-based admissions? In a structure that puts a premium on litigating contested facts, and imposing individual blame and punishment, what does it mean to exhibit wisdom, or love?
I mean simply that different values contribute to different valuations – of what justice means and what its attendant systems are intended to enable. The adversarial basis of Canadian justice is remarkably well-suited, when its principles are followed, to a justice leavened with respect for individual rights, fair treatment, and proportional punishment imposed only upon battle-tested proof. But it is much less suited for the values that animate an Anishinaabe understanding of justice.
Saturday, July 28, 2012
Summer Symbols
Summer in Sioux Lookout, as in everywhere else in the country, is a ripe time for celebrations. In the Indian Country that surrounds and runs through this little town, it is also a season of important commemorations, three of which straddle the flag-waving and fireworks of Canada's patriot day.
First, June 11 marked the fourth anniversary of the Canadian government's official apology for a century-long policy of extracting Indian children from their families (sometimes for years, sometimes forever) so as to extract and do away with their Indianness. Most of us did not then, and cannot ever, realize the importance of "The Apology" to those for whom it was meant. It seemed, beyond contrition, to promise a renewal of relations between the state and Indigenous peoples. Four years on, the message was recalled with an early morning ceremony, one of hundreds that were no doubt held on dusty fields and washboard roads like the one upon which we circled. This road had led to one of the residential schools that gave Anishinaabe youngsters their first and lasting taste of western education, western authority, western perversion. Now a small gathering of former students sat around a drum and sang in the rising sun, in the language of their survival. We remembered then, in the sharing of sad and hopeful stories, what the Prime Minister had said in 2008:
The burden of this experience has been on your shoulders for far too long. The burden is properly ours... You have been working on recovering from this experience for a long time and in a very real sense, we are now joining you on this journey.
But the old children still wondered, as did all of us gathered there in soft communion, standing in the very heart of this country but feeling a long way from silent Ottawa.
The second summer occasion in Indian Country came on June 21, which has been declared National Aboriginal Day. It is a day that passed without notice during most of my years in urban centres, but which is a fairly big deal in a place like Sioux Lookout, where half the population is indigenous. A chunk of main street was transformed into a pow-wow ground, complete with tipi and grandfather drum, and kids were taught how to make bannock and twist their tongues around Anishinaabemowin by a local elder. The centrepiece of the day's celebration was the signing of a friendship accord between the town of Sioux Lookout and the nearby Lac Seul and Slate Falls first nations. The dignitaries sat and withstood pulses of summer rain, proud that after a century of uneasy, informal coexistence, they were finally committing to a kind of mingled well-being. A small wet crowd smiled and clapped, as sincerely hopeful as its leaders. Finally, one of this region's luminous heroes, Garnet Angeconeb, was honoured with a Queen's Jubilee Medal (no irony intended). He is one of the few former residential school students I know personally, a man who has chosen not hide the wounds it inflicted upon him, but rather, in a courageous display of broken wholeness, forge this pain into forgiving, life-giving purpose.
The third occasion took place on July 6, at Lac Seul's annual Treaty Day. Since 1873, this has been a chance for the two signatories to Treaty 3, in this case Her Majesty and the Anishinaabe living around this large and intricate lake, to get together to recall and make good on promises made. A red-serge Mountie presides over the issuance of five dollar bills to all community members (an amount that has not kept up with inflation), and today a group was reenacting the goods-giving as it would have happened in the 1920's. A canoe laden with tea, kettles, and other consumerables, accompanied by the crimson cop and a fussily-suited Indian Agent, scraped onto the shore at the site (known as Archie's Landing after a since-passed resident), where the chief in bowler hat waited for the delegation. Formalities complete, a crowd began to form a loose queue in front of the annuity table, which took half the afternoon to wind through the whole gathering of eligibles. The rest of us sampled a contemporary free lunch (baloney sandwiches and bannock) and cheered on a few eager teams competing in canoe races (the chief versus Sioux Lookout's mayor was a favourite). Later, a minister called up every couple who had been married more than twenty years, to be recognized by scattered applause and personalized certificates of achievement.
Garnet, meanwhile, shuttled about the bumpy ground on his mechanized scooter. He was affable as always, but had a lot on his mind. "I'm running on empty" he confessed to me with a smile. He had only conceived of this ceremony a few days before, and the preparations had been hurried. But as three o'clock approached, and the last of the honoured couples had accepted their gift bags, Garnet grew visibly excited at what he had planned. Giddy as a child, even.
Those who count residential school among their lived experiences are known as 'survivors'. Survivors, not just of the sadistic acts of physical, psychological, and sexual abuse that an untold number endured, but of the uniform and inescapable agenda of the state's attempted reengineering of their humanity. All of the survivors who were present - about thirty folks who were mostly in their 50s or older, along with a few who looked surprisingly younger - had been presented earlier in the day with ribbons in the four colours of the Lac Seul Nation. All wore them pinned prominently against their chests.
Now, Garnet led this weathered troupe towards the big drum near the lakeshore, to circle for speeches and an honour song. Younger relations followed along to provide chairs for weary legs. Then Garnet announced that very soon we would be hearing the sound of a float plane. He dwelled upon the sound - the same sound that had signalled when children were swept out of the community for school, would now alert the gathering that children (albeit not the same ones) were returning home. Garnet's voice quivered as he described how two planes would circle, land on the nearby lake, and, at last, deliver their precious passengers back.
They were, of course, later than expected. But when a distant drone did finally take shape in pontoons and fuselage, even the oldest survivors stood and came down to the beach, where several kids, dressed in the uniforms they might have worn in the 1950s, bounded up the dock to our cheers, and no few tears.
First, June 11 marked the fourth anniversary of the Canadian government's official apology for a century-long policy of extracting Indian children from their families (sometimes for years, sometimes forever) so as to extract and do away with their Indianness. Most of us did not then, and cannot ever, realize the importance of "The Apology" to those for whom it was meant. It seemed, beyond contrition, to promise a renewal of relations between the state and Indigenous peoples. Four years on, the message was recalled with an early morning ceremony, one of hundreds that were no doubt held on dusty fields and washboard roads like the one upon which we circled. This road had led to one of the residential schools that gave Anishinaabe youngsters their first and lasting taste of western education, western authority, western perversion. Now a small gathering of former students sat around a drum and sang in the rising sun, in the language of their survival. We remembered then, in the sharing of sad and hopeful stories, what the Prime Minister had said in 2008:
The burden of this experience has been on your shoulders for far too long. The burden is properly ours... You have been working on recovering from this experience for a long time and in a very real sense, we are now joining you on this journey.
But the old children still wondered, as did all of us gathered there in soft communion, standing in the very heart of this country but feeling a long way from silent Ottawa.
The second summer occasion in Indian Country came on June 21, which has been declared National Aboriginal Day. It is a day that passed without notice during most of my years in urban centres, but which is a fairly big deal in a place like Sioux Lookout, where half the population is indigenous. A chunk of main street was transformed into a pow-wow ground, complete with tipi and grandfather drum, and kids were taught how to make bannock and twist their tongues around Anishinaabemowin by a local elder. The centrepiece of the day's celebration was the signing of a friendship accord between the town of Sioux Lookout and the nearby Lac Seul and Slate Falls first nations. The dignitaries sat and withstood pulses of summer rain, proud that after a century of uneasy, informal coexistence, they were finally committing to a kind of mingled well-being. A small wet crowd smiled and clapped, as sincerely hopeful as its leaders. Finally, one of this region's luminous heroes, Garnet Angeconeb, was honoured with a Queen's Jubilee Medal (no irony intended). He is one of the few former residential school students I know personally, a man who has chosen not hide the wounds it inflicted upon him, but rather, in a courageous display of broken wholeness, forge this pain into forgiving, life-giving purpose.
The third occasion took place on July 6, at Lac Seul's annual Treaty Day. Since 1873, this has been a chance for the two signatories to Treaty 3, in this case Her Majesty and the Anishinaabe living around this large and intricate lake, to get together to recall and make good on promises made. A red-serge Mountie presides over the issuance of five dollar bills to all community members (an amount that has not kept up with inflation), and today a group was reenacting the goods-giving as it would have happened in the 1920's. A canoe laden with tea, kettles, and other consumerables, accompanied by the crimson cop and a fussily-suited Indian Agent, scraped onto the shore at the site (known as Archie's Landing after a since-passed resident), where the chief in bowler hat waited for the delegation. Formalities complete, a crowd began to form a loose queue in front of the annuity table, which took half the afternoon to wind through the whole gathering of eligibles. The rest of us sampled a contemporary free lunch (baloney sandwiches and bannock) and cheered on a few eager teams competing in canoe races (the chief versus Sioux Lookout's mayor was a favourite). Later, a minister called up every couple who had been married more than twenty years, to be recognized by scattered applause and personalized certificates of achievement.
Garnet, meanwhile, shuttled about the bumpy ground on his mechanized scooter. He was affable as always, but had a lot on his mind. "I'm running on empty" he confessed to me with a smile. He had only conceived of this ceremony a few days before, and the preparations had been hurried. But as three o'clock approached, and the last of the honoured couples had accepted their gift bags, Garnet grew visibly excited at what he had planned. Giddy as a child, even.
Those who count residential school among their lived experiences are known as 'survivors'. Survivors, not just of the sadistic acts of physical, psychological, and sexual abuse that an untold number endured, but of the uniform and inescapable agenda of the state's attempted reengineering of their humanity. All of the survivors who were present - about thirty folks who were mostly in their 50s or older, along with a few who looked surprisingly younger - had been presented earlier in the day with ribbons in the four colours of the Lac Seul Nation. All wore them pinned prominently against their chests.
Now, Garnet led this weathered troupe towards the big drum near the lakeshore, to circle for speeches and an honour song. Younger relations followed along to provide chairs for weary legs. Then Garnet announced that very soon we would be hearing the sound of a float plane. He dwelled upon the sound - the same sound that had signalled when children were swept out of the community for school, would now alert the gathering that children (albeit not the same ones) were returning home. Garnet's voice quivered as he described how two planes would circle, land on the nearby lake, and, at last, deliver their precious passengers back.
They were, of course, later than expected. But when a distant drone did finally take shape in pontoons and fuselage, even the oldest survivors stood and came down to the beach, where several kids, dressed in the uniforms they might have worn in the 1950s, bounded up the dock to our cheers, and no few tears.
Saturday, December 17, 2011
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.
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.
Thursday, October 27, 2011
Ear to the Ground
Someone I knew, long ago, once told me to turn off a song that was playing on my car radio. "That's not music!" she complained, in reference to the thick drumbeats and undulating wails of a Cree or Blackfoot anthem (I can't remember). I couldn't articulate much of a rebuttal at the time - this was a classically trained instrumentalist with a fine ear and heart for Schubert, who gushed over the intricacies of a Rachmaninoff concerto. Her judgment bothered me though - there was something in these rhythms that I trusted, something that I deeply loved, without needing to understand why. If music is meant to conjure truth and beauty, to exhibit the human sense of holiness, then this was surely music to me.
This sense returned to me recently as I sat in the healing room of our local hospital, as one in a circle of community members who had gathered to bless a new handbook on moving forward through (and from) the ravages of residential school. It was an emotional affair, as this town is torn through with so many stories of loss and pain and tragedy, many of multi-generational scope, most only now beginning to be told. A women's hand drum group was offering an honour song, and all of us stood in the round to receive it. The music rolled us into a vibrant, vibrating whole. Rhythms that, if seen on paper might seem mundane and repetitious, served to perfectly convey the sprit of this gathering, its meaning and moment in the now of these gifted and grieving human lives. No symphony could have resonated it better, with more real, age- and earth-won wisdom.
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.
Thursday, October 13, 2011
Draft of a letter that may never be read...
It is rarely a bad time to look up from the minutiae of our tasks, to consider how our work informs a bigger picture, and take note of where our choices are driving us. For those of us engaged in the criminal justice system, it is time – long past time – to meaningfully acknowledge that we are far from where we ought to be. The system that we maintain, it must be said, remains deeply antithetical to the traditions, values, and ambitions of those whom it purports to serve. This includes, most acutely, our region’s Anishinaabe people, who make up the vast majority of victims and offenders.
Here in Northwestern Ontario, we are given the privilege, and the challenge, to live and work at a most important intersection of law and culture. We inhabit ground upon which our differences encounter, and, too often, confound each other. Let me try to describe what I mean.
I am a lawyer, invested with a lawyer’s tools, priorities, and analytical mindset. I am sworn to serve my individual clients, to protect their legal rights, to ensure that they are not convicted without due proof, and, if convicted, are sentenced to punishments that are minimally restrictive of their individual liberty. I am taught adversarial methods to achieve these goals. And although I must put my clients’ interests above all others, including those of their families’, communities’, and society in general, I am given comfort in knowing that I’m working within a system that is specifically developed to help us reach towards something called justice. I will not argue that this model is not generally effective, in the context within which it is meant to operate. But it is certain that in this region, in the lives and communities in which these same principles are currently being applied, that they are not performing their much-needed function of facilitating a more peaceful, more just society. Tragically, they may even be working against it.
This is a longstanding problem, and one that is widespread across Canada. It is one that has been recognized at all levels of court, in Parliament, and by provincial and national commissions of inquiry. The Supreme Court of Canada, in its important decision in R v. Gladue, stated clearly that the law must approach its work differently, if it is to have any hope of beneficially responding to the needs, experiences, and perspectives of Aboriginal people or communities. In essence, the Court cautioned, the way we do justice is not just, and requires serious adjustment.
Over ten years have passed since the warning in Gladue was issued, and we must ask how deeply it is being heeded. A number of initiatives have been implemented to try to ameliorate what I will call the ‘justice deficit’ afflicting Aboriginals in this country. Community legal workers bridge some of the cultural gulfs that court processes wedge open. For minor crimes, diversion programs offer restorative alternatives to youth and first-time offenders. Lawyers and judges have been schooled to attend to the background reasons that bring Aboriginal people into conflict with the law, and, sometimes, have the benefit of detailed reports that illuminate these factors in specific cases. On the corrections side, programs have been developed for offenders both in and out of custody that apply traditional values and practices to the modern plagues of domestic and intergenerational violence, substance abuse, and unresolved grief. Each of these developments marks a necessary step, but, on their own or even cumulatively, they offer insufficient progress towards the goal of a meaningfully ‘just’ justice system for Aboriginal people and communities.
More courageous and creative adjustments are needed, and in some parts of the country, they are already being established. This includes the Gladue (Aboriginal Persons) Court in Toronto, supported by dedicated judges, prosecutors, duty counsel, and case workers who together allow for a truly different approach to justice for Aboriginal persons living in Canada’s biggest city. Also in an urban context, BC’s First Nations Court has been established near Vancouver to support Aboriginal persons who wish to take meaningful responsibility for offending behaviour. As in any criminal court, accused persons enter guilty pleas and are sentenced, but instead of an end, this juncture marks the beginning of a collaborative process of justice and healing. Offenders are expected to return to this court regularly, to provide updates on their progress, to respond to the guidance of the judge, and to account for themselves in a forum that promotes a restorative focus on the roots of wrongdoing, and the resources (cultural, social, spiritual, and therapeutic, as well as punitive) best applied to its resolution. Both of these forums have proven to provide a more understandable, inclusive, and above all effective approach to justice for Aboriginal persons.
If initiatives such as these can grow and succeed in Canada’s cities, why cannot similar, or even deeper, truly indigenous adjustments to the justice system take place in areas such as ours, where Aboriginal people and communities are its majority stakeholders, and the scope of the ‘justice deficit’ is most shocking? Certainly, from my perspective, the need for serious change appears obvious. As a lawyer, I am confronted daily with the consequences of a justice system that is not responsive to the aspirations or expectations of my clients, to say nothing of those of victims, families, and communities. I am sick of attending trials in which witnesses are too frightened, ashamed, or uncomfortable to speak their truths. I am, in my conventional role, a hopelessly inadequate spokesperson for people who plead guilty, but who, for whatever reason, never make their own voices heard. It is especially jarring to participate in a circuit court system whose limitations leave it unable to really listen, let alone respond, to the stories of pain, shame, and possibility embedded in every legal case. Some will say that this is not the law’s job; that it is enough for us to provide formal fairness, hollow equality. But, as I believe and as I have been told, the Anishinaabe of this region have different traditions and understandings of justice, ones that do not require people’s rights to be pitted against each other, as the Canadian system’s adversarial framework seems to demand. It is time – long past time – for this system to deeply adjust itself to allow for these yearnings to be nurtured. Or else it must step out of the way.
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.
Thursday, September 29, 2011
double vision
This is the season of still fire in the leaves of the matchstick stands
of birch that huddle within changeless swaths of spruce and pine.
And the most diseased human habitation I have ever witnessed exists in the midst of this beauty - vast lands of unlogged forest, measureless waterways of lake, marsh, and river.
This is where the law's dissonance booms. It sounds like the sighs of a court party forced to (literally) pick the locks of doors to set up its temporary chamber, and begin its proceedings (literally) in the dimness of a hall whose lights it has no power or knowledge to operate. It sounds like the echo of names called into the sparse lobby of a community centre that, although recently built, is already scarred by the stone-throws and scrawlings of gas-addled youth; names of witnesses or accuseds whose absence prompts frustrated warrants of arrest, and the consequent lumbering of police trucks along pockmarked gravel roads.
Disengagement feels like the bruise my spirit accepts in the knowing that so many of my clients will run the whole course of their legal ordeals without ever facing a single fact of their enfetterment, and that they will be turned back, in the end, into the whip of a suffering/harming cyclone. It is the sadness of hearing a client tell me that his accuser will fare far worse than himself "because no one likes a rat round here". And it lies in the silence of victims who, in bowing to this granite logic, put their own necks into the law's headlock.
No one amplifies their voices, the way I do on my clients' behalf. Therein lies, as even Conservatives know, a crucial question, a distorted twist of truth. But does the answer lie in ramping up the rhetorc of war, of pounding ever harder on these rickety tables that we erect in the centres of communities whose ills and rhythms we yet weakly pretend to comprehend?
This of course is the rub, the nub of it. The elephant whose hulk rests unaddressed in this district's rootless courts, in our so-called universal law, and in the ongoing collision of our cultures. As I go about my work, I just want to acknowledge this.
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.
Monday, September 26, 2011
Why I Stay
Sioux Lookout recommends itself to anyone who wants to shimmy free of derivative living. It is not a place of easy, anonymous consumption, or complacent spectatorship, but somewhere that invites headlong participation in the joys and challenges of community, in all its streaming, messy diversity. In this month alone, we have gathered for the town's first annual Pride picnic (which was said to have attracted more folks than twenty-times-larger Abbotsford's parade), the fifteenth Take Back the Night walk, and (next week) the vigil for missing and murdered Aboriginal women. We've also gone from working to lake swimming in under ten minutes, hiked up the town's namesake "mountain", and successfully completed several Sioux Lookout triathlons (cycle, paddle, potluck). The latest of these forays took place during a six-hour power outage - an annual event in early fall where transmission line maintenance sends the whole town back a century or so. This year's iteration gracefully fell on a warm and sunny Sunday, and it seemed like everyone spent the day joyfully outdoors, bedding gardens, cording firewood, or fishing from the train trestle in unhindered defiance of trespass laws. Despite all that you may read here, this is a good place to be human, and to call home.
statistic stories
A recent one day snapshot of the inmate makeup of Kenora's District Jail (our 'local' detention centre) provides the following:
Jail's official capacity: 95 inmates
Total number of inmates on Sep 23, 2011: 165
Percentage in custody awaiting trial: 52 (86 persons)
Percentage of total inmates who are Aboriginal: 83
Percentage of total inmates who are women: 18 (30 persons)
Percentage of women who are Aboriginal: 100
Numbers alone, of course, provide slight and insufficient insight into cause, meaning, and consequence. But for me they are irrefutable reminders of how colonial injustices, sown into lives and communities sometimes years before their very birth, continue to fester, to provoke fresh spasms of anguish, violence, injury and loss. And how our legal culture of individualistic capture, blame, and punishment pays so little heed to these long-embedded facts. These numbers scream, but are, most horribly, being less and less listened to by those with the power to create different outcomes, less sickening stats.
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.
Thursday, September 22, 2011
fissures and fusions
Sioux Lookout seems to possess far too many amputees, refugees, folks with spent gazes and lost body language. Its dysfunctions are evident on court dockets, in hospital notices warning against sanitizer theft, in the surfeit of well-padded police officers who attend to haul off the drunks seeking warmth in the old bank lobby. Too many people with nowhere to go, or else desperate to be gone. But despite such indicia, the town cannot be cast off as wart or war zone. Its wounds and indignities are not shared equally, of course; it is not a gross overestimate to suggest that half the population earns a handsome keep tending to the other half's frailties. But perhaps because we are so small, our problems so manifest and distilled, Sioux Lookout is also a nest of remarkable, even exemplary responses to social ills.
The connections I touch here astound me - the tight, if fraught, relationships between people, both here and in the small communities in its surrounding vastness, threads cinching geography and time. Sundered lives are stitched within strong family webs, where great need and great capacity telescope together. The leathery drunk weaving on the sidewalk outside the courthouse, I discover, is my client's father, the same man he spoke about with rage and tenderness. A man who, at one time, held positions of great authority within their band. The next morning introduces me to this same client's daughter, shackled in the courthouse cells, and a flood of other family members who mobilize to set her free. Hands and voices span across the massive territory, phone calls seek out helpful aunts, nephews drive eight hours to bring elders into court. These old ones sigh and chuckle that they've been leaned against before, stood firm in times worse than this.
All this happens in the face of a parallel manoeuvring, that of witnesses and no contact orders, medical reports and forensic notes: I foresee, with one eye, a case likely to proceed to trial, while with the other gaze with awe and worry over this one family's tethers.
The 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.
Sunday, September 18, 2011
The views from here
Lakes, at this height, are laid out on the land as wild and haphazard as droplets of mercury. I see the sun as the sun sees us, brightly replicated in innumerable mirrors. This morning the air we thrum through is smooth, but often, and invisibly, our passage hits updrafts that kick me into awareness of how measly small these vehicles are. I have learned, as well, to expect the slap of clouds, the urge to hold my breath and armrest as a plane dips into the woolly medium of an overcast day, or bombards through the battlements of cumulous afternoons. Here, in these ambient cocoons, (mostly) men sit in (mostly) wordless company, working or dozing. Lawyers flip naked fingers through indices of the day’s business, each sheaf encasing a story of evidence, evidence of many stories. Proof, our currency, rests in abeyance for a time, like this plane that trajects the open space between defined places.
I usually like the law quite well in this setting. Controlled environs, earplugs and peanuts, folders full of interesting material, plum for highlighting and scrawling queries or deductions in the margins; yellow notepad held close to sketch out clever arguments. My mind, in these times, takes the shape of a polished courtroom, assigning strengths and challenges to each of two opposing sides, squinting at my case the way I think a judge would. It’s at least as fun as Sudoku.
Paper-thin rules don’t apply so predictably after landing, however.
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.
Monday, April 18, 2011
Crime and the Closing of the Canadian Mind
One of the great perils of Canadian politics – for legislators no less than electors – lies in the necessity of making decisions that impact people we will likely never meet, in situations we will likely never know. Such blindfolded influence is present in all policy areas, but perhaps no more profoundly so than that of criminal justice.
In the construction of criminal prohibitions, we tell each other unambiguous stories: if X is wrong, then it is wrong regardless of place and irrespective of person. In an odd way, this may be a strand of our national cohesiveness, our democratic promise. Redrawing the boundaries of what counts as a crime, of course, is not a major topic of this year’s federal election (the Green Party’s call to legalize marijuana notwithstanding). What is at issue is how we – in each province, every region, from coast to coast to coast – are being asked to change they way we to respond to crimes when they occur.
Our choice in this regard is being couched in clear, alluring terms. Do we want to send a strong message to criminals? (of course). Do we want to stand up for victims? (you bet). Do we want a safer Canada? (Alleluia!). The answers are offered as inexorable: more people must be locked up for more crimes, and for longer. Simple.
Reforms to sentencing legislation, however, affect some Canadians much more than others. And it is not urban gangsters who come to mind, although these are the bogeymen we are being asked to imagine. In the Aboriginal communities where I work, the incidence of violence and substance abuse can be shockingly high, and persists as a grim symptom of cyclical trauma. In these places, victims and offenders are closely related, with sources of suffering and solace that are deeply enmeshed. Here, the cleaving punishment of long imprisonment is often not seen as an appropriate or effective response to wrongdoing, being not resonant with traditions that value relational healing over individual blame. This remains true even as Aboriginal communities have long been subject to the dictates and ideologies of a Canadian justice system that does not much share or seemingly understand such restorative approaches.
To the extent that any meaningful justice gets done in this intercultural environment, it is due largely to the ability of sentencing courts to moderate the law’s retributive ethic with an allowance to local wisdom. This can come by way of the advice of elders and community circles, in-depth investigations into an offender’s life circumstances, or appeals, direct or indirect, from the person(s) harmed by a criminal act. The end result, of course, is most clearly measured in sentences that are somewhat lower than the national ‘average’. But the importance of attempts to narrow the gaps between different traditions, while also attending to the immense needs that crime uncovers, is poorly reflected in mere numbers. The true effectiveness of any system of justice depends, not on its coercive power, but its moral authority. And in many Aboriginal communities, Canada’s legal apparatus has an unenviable record to work against. This is why the Supreme Court of Canada has strongly endorsed alternative responses to the travesty of high crime and incarceration rates in Aboriginal communities.
A roll-out of mandatory sentences would threaten the (small) gains that have been made in making criminal courts more alive to these realities, and may perversely make communities less safe for actual victims. Faced with the certainty of having family members jailed in far-away institutions, and returned, if at all, bearing the burdens of further embitterment, victims and witnesses of violent crimes and drug trafficking will be less inclined to make reports, seek support, and take the stand. At a time when the criminal justice system desperately needs to build confidence among vulnerable persons and communities, who equally need the security of reflective, responsive justice structures, these initiatives will push such possibilities further away.
The architects of this law-and-order agenda were quite obviously not thinking of the small minority of Canadians who live, and have always lived, in the vast majority of this country’s land. When you cast your ballot in this election, perhaps you could spare them a moment’s consideration. Your choice could tip a very important balance.
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.
Sunday, March 27, 2011
blockages and flows
I have been thinking about energy, in relation to criminal justice. If we (as a system) are not effectively engaging with the energies that necessarily arise in consequence of conflict or wrongdoing, we are effectively engaged in their frustration. So the value of such a system, perversely, becomes centrally that of the containment or neutralization of such energies. They are penned up by abstruse procedures, drowned out by inaccessible language, ruled out of order by the lords of this game.
I see my client seething, head in his hands, wanting only to release himself from a prison of body and mind. I hear myself telling him it can't be done, not today, not without scheduling this and filing that. We both look at a letter that has been carefully dictated by aging parents, pleading for him to return home, help them with the early springtime chores. But these frail, unilingual elders, the court says, will have to somehow traverse the winter road 200kms south if they want to make their support for their son official. Just to plead for his release. Our energies swirl, like a mad yet insufficient tempest, within the walls the law throws up. I escape, of course, at the end of every day, but men like these must live within them.
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.
Sunday, March 6, 2011
Sioux Lookout...
...is nestled where I could set out into the forest, stand, turn full circle, exclaim 'This is it!', and know it to be true for days in every direction. The unsubtle sovereignty of the boreal land, its many shades at once mute and loudly signalled in the very names of its trees - red pine, white pine, yellow cedar, black spruce. All still green despite four months of deep snow and sap-stilling temperatures. From 10,000 feet up, where I spend more and more of my mornings and sunsets, these colours and textures blend into more abstract patterns, of broad white lakes and dark woodlands, ivory rivers and bald cut-blocks, repeating outwards in apparently endless variety. Dotted down there, where I spend most of my middays, are the 49 communities of the Nishnawbe-Aski Nation. They range in size from a few hundred inhabitants to two thousand or more, and are only roughly summed up in terms of common features - there are at least three major indigenous languages (Cree, Oji-Cree, and Ojibway), three different treaties (9, 5, and 3), and histories as diverse but interconnected as the river systems that weave through its France-sized vastness.
I have no business, anyway, in describing the essence or identity of any of these places. Their similarities and differences may be plotted on any number of variables, and in any case, such graphs would map out only the merest of true stories. It is enough to say that I am sent in to all of these habitations with identical orders, as a member of a culture that prides itself on consistency and culture-blindness. It is enough - and true - to portray the justice system in this so-called 'remote' region as a paradigm of "us and them", because, although the system's values officially eschew such a reality, it is glaringly reflected in the faces of those who comprise criminal courts in all the reserves I've visited. On one hand, there is the 'us' (or 'them') of the professional suit-and-robe wearing cohort that descends from the southern horizon to call court in session, and retreats back there when the work is deemed done. On the other, the 'work' themselves - folks in boots, hats, or shackles, the ones whose surnames might mantle the very gyms the court erects itself in, whose families personalize a community's schools and clinics and gravestones. To one side the lawyers, to the other the (supposed) source of law. It is for the benefit of these people, our leaders proclaim, that legal arts are administered.
As defence counsel, of course, I needn't be disturbed by the absurdity of such claims. I could just put my head down and chew through the files, profit from the abundance of charges that bleed out of these communities. I help my clients navigate the labyrinths of the trouble they find themselves in - but it is a trouble increasingly defined and determined by the assumptions, (mis)conceptions, and judgments of a politically rigged system, not the environment of grounded, intelligible, and accountable justice that our politicians apparently promise. I could just keep doing this job. But my anger suggests that I shouldn't. Who would want hollow words to drown out the sound of wisdom?
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?
Monday, January 17, 2011
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.
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.
Wednesday, July 15, 2009
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.
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.
Sunday, June 21, 2009
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.
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.
Tuesday, May 26, 2009
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.
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.
Sunday, April 12, 2009
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.
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.
Sunday, March 15, 2009
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.
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.
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