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Filling in the Briefs

Friday February 28, 2014
Simon Owen.

Our local newspaper, in the spirit of public service, provides a journalist to sit in court one day a week and summarize the matters that are marched before it.

These ‘briefs’ are typically no more than two or three sentences long, and include a person’s name, charge(s), guilty plea (it is always a guilty plea), and their punishment. While these details are crystal clear, it is up to us readers, if we choose, to imagine or uncover the stories that surround these skimpy facts.

Recently one entry caught my eye. It read: “Brian Whiskeyjack, age 24, pleaded guilty to causing a disturbance by swearing at a local restaurant. He was sentenced to 30 days in custody and was given credit for 11 days in pre-trial detention”.

What, I wondered, could possibly have happened to result in a month-long stay in Her Majesty’s cellblock? What were the circumstances that led our system to consider this punishment justice?

Brian wasn’t my client. But I called his lawyer up, and then called the jail and asked if he wouldn’t mind chatting about his situation. Across a phone line that threatened to garble our words, within the limits of the 20-minute conversations that inmates are allowed, a much deeper story developed…

Brian is no stranger to the criminal justice system. He isn’t from Sioux Lookout, but has been living here because of his grandmother, who depends on him as much as he does on her. His mother and several other close relations have died over the past few years, some in very sudden and tragic ways. These losses have left an emotional burden that no young person should have to bear.

Such weights, however, are no stranger to so many Anishinabe who are branded as criminals in the law’s eyes.

In Brian’s case, this branding began when he was barely a teenager, and has continued with charges both small and serious, most fuelled by an alcohol addiction that masks even as it worsens his grief. Sioux Lookout is not a healthy place for him, Brian tells me, but he stays because of family and because he knows that this is where he can easily feed his addiction.

While he admits to at times being a nuisance while drunk, Brian feels that the police and courts don’t treat him fairly. His feelings are his own, but they don’t come from nowhere.
What is almost certain is that neither institution is prepared to deal with the depth of Brian’s human story, his truth and his needs. All they do is lock him up.

Back to the jail-for-swearing case. Brian understands why he got the punishment he did, but he doesn’t like it. He doesn’t think the judge heard the full truth of what happened that day, since he never got to tell his side of the story. As in many cases, his options were limited by his situation: held in jail while awaiting his day in court, he could either demand a trial (which might take several more weeks to be arranged) or negotiate, through his lawyer, a guilty plea that would get him out sooner.

Here, this involved the prosecution agreeing to drop a charge of uttering threats (which Brian says never happened anyway) in exchange for a guilty plea to causing a disturbance (Brian just wanted to order some food, he insists, and didn’t start the argument that led to the cops being called).

But, as Brian knows, every plea means another conviction, another entry on a criminal record that quickly becomes a long and unavoidable shadow. The real reason why Brian was sentenced to a month in prison, or held in custody by the police, or perhaps even arrested and charged at all, is that he carries the label of a chronic offender, a problem to be solved (or avoided) through the only tool that our systems, unfortunately, seem to apply to people whose afflictions do not enable them to escape the law’s gaze. This expensive, degrading, and fundamentally impotent tool is jail.

His institutionalization, as Brian calls it, hasn’t been all bad. He reconnects with some caring Elders who work inside, gets back in touch with traditional practices, dries out his body and soul a bit.

But, he tells me, trouble never seems far away, and sometimes he is back in custody mere hours after being released. He has been arrested for swearing at a friend on the street, too close to the sensitive ears of a passing constable. Another ‘cause disturbance’ charge; another month in the Kenora Jail. He has been convicted of mischief for peeing on an outdoor wall, and threatening the police by pointing his finger as if it were a gun. Other charges have been withdrawn by the Crown, but not before several nights of stone beds and cold sandwiches at the local detachment. In total, Brian spent almost 6 months of the past year in custody; four of these months were spent just waiting for the system to deal with him. Less than two were served as a convicted inmate.

Unveiling these realities is not done to cast blame on any actor or institution. But they are the logical consequences of a system – and a society – that values incarceration over rehabilitation; punishment above healing. They are also, more darkly, signs of how our supposedly ‘fair’ laws can be applied in unjust ways.

I have seen enough to know that in our little town, if you are an Anishinabe with an addiction, and without the supports or stability that the rest of us tend to take for granted, there are tax dollars paying for police to watch you, question you, and charge you for committing the most trivial of offences that aren’t exactly in the Ten Commandments. Like riding a bicycle without a bell or horn, to use one real-life example. Or walking the wrong way down the street.

Brian is not sure what will happen to him when he gets out of jail. He is lucky enough to have a place to call home, people who love him and know him beyond the newspaper briefs and the black-and-white records. Away from alcohol, he is a friendly, funny, gentle young man, an Anishinabe with a future.

But it is up to all of us, not just Brian, what that future will be.

Have a question for our columnist related to law issues in northern Ontario?
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Simon Owen is a lawyer at Beamish and Associates in Sioux Lookout, and practices primarily in the areas of criminal defence law and community justice initiatives. Most of the people and communities he serves are members of the Nishnawbe-Aski Nation, who continually inspire and challenge him to find justice both within and beyond (or in spite of) the Canadian court system. Simon holds law degrees from the University of Victoria and the University of British Columbia, where his thesis work focused on moral and cultural communication in sentencing.

These columns represent the personal views of the author alone, and not of any organization that he may be associated with. Nothing in these columns should be taken as legal advice; please consult a properly instructed lawyer for any legal issues you may have. Some names and details in these columns may be modified to protect confidentiality. Finally, the author is not Anishinaabe, and this column is not intended to explain or interpret any Anishinaabe words, concepts, or principles. The author humbly apologizes for any errors or misunderstandings that he may make when referring to Indigenous ideas.

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