Changing the guard

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

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

talkin' in the free world

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

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

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

The blood of monsters

Do not doubt that the justice system is shot through with logic. It is a logic that dictates that, since something happened in Sioux Lookout, my client is now housed in a Kenora jail, each week shuttled between courthouses in three different towns, but always sent back to that cell, simply because our logic finds no other appropriate place for a suspect homeless man to go. This same flow of consequences finds me boarding a small plane under the pre-dawn moon, my mind aflood with images of this man, exhausted, fumbling, mumbling for an hour in a bright interrogation room, being skillfully led by a crisp cop in a tie to talk about what may have happened in his haze, behind a dumpster in Sioux Lookout. Logic that extracts his words into a single typed sentence in the police report: "eventually the accused admitted...". But this tight, authoritative stream of consequences hits its first real eddies, for me, in a small partitioned chamber in the Dryden lock-up. It's here that I first meet my client after representing him for a month, after these weeks of zipped-up investigation papers, halting phone calls and repeated delays. Logic's narrative slowly unspools to human.

It’s hard to speak and listen in these places. A thick, scratched and smeared strip of hard plastic separates me from a worn man in old clothes, and we must frequently bob our heads down to the one low grate, in odd pantomime, to exchange stories. Mine starts out straightforward: it’s time to decide, I tell him, we’ve gotta usher this case along. I know you want… no, they won’t let you… it’s gonna be hard, because of what…no, I haven’t talked to…well, here’s the law… . An echo sounds from a recent meeting, this one held in a nice office thirty steps away: “You realise he’ll be an extremely poor witness, right?” the Crown quite logically responds when I suggest this man requires a trial, “I mean, the guy’s a street drunk!” True, this truth, obscuring truth. His tale weaves, through the plastic glass, a wandering novel told in the minutes before a guard snorts through the door, if this meeting needs to go much longer. I ask unnecessary questions.

Because it's poetry month

Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
Tomorrow, yesterday, today.

Law is the wisdom of the old
The impotent grandfathers shrilly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.

Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good-morning and Good-night.

Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more
Law has gone away.

And always the loud angry crowd
Very angry and very loud
Law is We,
And always the soft idiot softly Me.

If we, dear, know we know no more
Than they about the law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the law is
And that all know this,
If therefore thinking it absurd
To identify Law with some other word,
Unlike so may men
I cannot say Law is again,
No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.

Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyway:
Like love I say.

Like love we don’t know where or why
Like love we can’t compel or fly
Like love we often weep
Like love we seldom keep.

- W.H. Auden (1939)

Where the cars have no plates

The (now defunct) Law Commission of Canada's Report on Aboriginal Peoples and Criminal Justice was delivered to the Federal Justice Minister in 1991. This document, an effort by dozens of academics, jurists, and indigenous leaders to grapple with the obvious injustices of the Canadian system's interaction with Native peoples, is rife with alarming statistics and hopeful proposals. The commissioners were able to state plainly, with conviction that for meaningful justice to re-manifest in Native lives and communities, there was simply no other way: "The time has come to co-operate in the creation of Aboriginal-controlled systems of justice...". The time has come. 1991.

And so here I am, reading these well-meant, well-thought, nigh-well urgent appeals for a country to sit up and take notice of its complicity in the systemic degradation of the individual, communal, and national rights of Native peoples to own and understand that most crucial, ephemeral, palpable human concept: justice. And here I am, still participating in a justice system that "delivers" itself into communities that, at best, endure its intrusion, withstand its ignorance. In so many ways, we assumed we knew what was best for the cultures we enclosed, and in so many ways we were wrong. The evidence, if we can bear to admit it, is obvious. The question, at least in relation to justice issues, is why we persist in such arrogant error.

I think I'll spend my life with this challenge, although hopefully towards a dissolution of our arrogance, a de-coupling of our (yes, still) colonial need to control and monopolise the concepts of governance. But as the 1991 commissioners now know, and I'm uncomfortably learning, even good ideas are pretty cheap currency if we don't spend our best selves upon them. That's why I feel such a feverish need to tell these small stories, from this frontier, for they echo the truth to a country that for the most part still neglects to listen, until the most egregious tragedies force a moment of notice, and, all too often, fallow, unfortunate finger-pointing.

We’ve thusfar only given credence to appeals to formal equality in our justice system’s evolution. Thus, all Aboriginals are presumptively entitled to our laws, our rights, our ideas about how to take the necessary steps from allegation to outcome in justice matters. We’ve constructed elaborate and expensive mechanisms to bring the institution closer to (by our eyes) remote communities, the places where our roads don’t go. And yet, for all our single-minded efforts, it’s mighty hard to sense that progress has been made.

The northern reserves, at their worst, are unfenced gulags, composites of nowhere. Who wants to live in an immovable trailer with a dirty water tank lurking in its biggest room and a dozen relatives interminably crashing in the others, even if it is "free"? Who wants to boil their drinking water every day for nine years, disguise the leaden taste with grape Kool-Aid? Who wants to die too young of violence or diabetes? Who wants their most important decisions to be mandated or mediated by utter outsiders, folks who flit in and out like bossy fairies? The answers to these questions, at least, seem clear. And we must try and feel the truth of one another, or die. But I admit of very few other certainties.

the cutting edge

What Tom meant, I think, was that his community – and the individuals within it – have little control over how justice ‘works’ for them. A couple of planeloads of lawyers and court staff fly in every month or two, spend the day in a re-arranged community hall, and make decisions about who’s guilty of what crime, whose case can’t be heard yet, who goes to jail, who stays behind. How are these decisions made? Tom perceived – correctly, for the most part – outsiders meeting in private, strange doctrines debated, facts bartered and bargained for, shortcuts taken. All this happens (I know, because I’m one of the outsiders) according to quite a well-developed legal, logical and ethical framework – ours is a system that’s evolved in tinkers and increments over several centuries. As long as everyone plays their roles properly, the majestic mechanism of the law is maintained. So why do both Tom and I sense that it’s all so wrong?

I believe that the problem lies in the enduring ‘outsider’ nature of the work we’re trying to do. Here’s an example: I have a trial tomorrow, in a community about 700 kms north-west of Thunder Bay. I’ve never met my client, or even spoken to him – we don’t even share a language. All I have is an inch-thick folder detailing some heinous offence he supposedly committed, and the clues to a deeper tragedy buried within it, words like “sniffer” and “seven months pregnant”. Setting matters down for trial is a strategic business in northern reserves. Even if you are inadequately prepared, entirely unconvinced, or horrendously incompetent, chances are that Crown witnesses won’t show up, and the case will collapse. Hooray, a victory for the defence. But why does this happen with such shameful frequency? Again, I believe it’s because we are outsiders, and, as professional as we may be, we really don’t know what we’re doing when it comes to helping justice manifest in Tom’s community, and the few dozen others we pretend to serve.

Holes that make the net

Last week I started working as a lawyer again, this time with a couple of senior counsel known around Thunder Bay as the “left wing fringe”. Mostly criminal defence, plus Aboriginal Rights litigation. I’m half in the office working on appeal arguments, and half in tiny planes and tiny towns trying to make some kind of positive difference in the lives of people clutched up by the overgrown fingernails of the Canadian justice system. It may be One World, One Dream, but it’s hard to believe that the One Law, One Society rhetoric is working for the smaller places and nations our country encompasses. Already I’m struck by how little I’ll be able to accomplish, at such great cost.

Pickle Lake bills itself, on the wonky wooden sign on the highway into town, as Ontario’s Last Frontier. This description is accurate insofar as it’s the furthest-most point most people would want to drive in the province, before the road sinks into dust and muskeg, permitting only frozen-season forays further north. Other than that, the slogan is merely another of the many signals that we don’t understand the full reality of life here. Ontario’s last frontier – and far beyond – also happens to be the centre of the universe for the Ojibway and Cree nations whose communities dot the trackless map of the north-west interior.

Mishkeegogamang, also known as New Osnaburg, or Oz, sits about twenty minutes south of Pickle Lake, its reserve broken in half by a government surveyor’s 1911 decision to exclude a resource-rich island from the community’s scant treaty settlement. They’ve spent the past several years – and about seven million dollars – trying to convince the Crown to give it back. “We’ve read the Land Commission documents,” my tour guide grumbles as we drive up to the gravesites that aren’t theirs anymore, “they told ‘em not to give the Indians any lands which might have wealth”. Tom Wassaykeesic is one of the five band councillors here, interrupted in the middle of serving his grandkids lunch by the local probation officer with two curious lawyers who want to have a look around. Fifteen minutes later he finds us at the Nashnawbe-Aski police station (basically a mobile home with a cell-block stuck to the side), honking his horn to announce his engagement as our chauffeur. There's to be quite a lot of honking over the next two and a half hours, Tom’s way of greeting folks sitting on their porches or wandering by on the washboard roads. We pass several cousins and a brother while he points out a few of the highs and lows of Mishkeegogamang’s situation.

Some things hardly need to be said, just somehow understood. The main reserve is scattered with a few two-storey vinyl-sided home (“we built ‘em when there was money for that thing”), but otherwise people live in long narrow trailers beached on concrete pads. Many of the small windows on these overloaded homes were broken. Tom speaks bluntly: “drunks, they’re the ones who just break the windows like that. Got no accountability. All the band money is going to fix them things. Some people don’t care.” He points at a couple of places where houses should have been. “That one got burned down. They had a fight, those people, so they burned it right down. And that one we just use for a basketball court.” It was the only paved spot visible, at least until we continue past Bottle Hill along Sandy Road and catch sight of the beautiful school, a multicoloured four-winged bird perched proudly at the edge of the Albany river. Tom's obviously just as proud, and leads us out to skirt the perimeter, peering in through blessedly unbroken windows at the section reserved for the youngest kids, the classes for grades 3 through 10, the soaring central space where hot lunches are served and children can sit in a great steel-and-pine tepee beneath flags and old photos commemorating the signing of Treaty 9. The place breathes a sense of what kept promises (and enough money) can accomplish.

Finally, after introducing us to the guy spinning Christian country classics on the community radio station, showing us where the bones of ancestors sometimes wash up, and indicating Mish’s mandatory relocations over the past century because of the lake’s hydro-induced flooding, Tom drops us back off in front of the police trailer. Along the way, I get a chance to ask him, especially since he’s the councillor in charge of justice issues for the band, what he thinks about the court that flops down in Pickle Lake every month or so. “Never go to them things anymore,” he spits with disgust, “they already have everything all figured out even before we ever get there.”