Kafkaesque

2012-Chris-DurrantBy Chris Durrant

I’ve never read The Trail by Kafka. I tried once in middle school, but stopped, because I found it confusing and unpleasant, which I’ve subsequently learned was kind of the point. Still, I felt sure today in using the word Kafkaesque to describe what was going on, if not from my point of view, then certainly for my client.

This morning I received notice that there was a bail hearing to be run today. I began getting ready by interviewing the client, creating a release plan and making sure sureties and witnesses would arrive at court. This process usually lasts through lunch (today I ate some yogurt covered raisins, a can of V8 and a pecan tart while on the phone) but I was ready to go at the court at 1:30. Usually the Justice of Peace court deals exclusively with bail hearings in the afternoon, but today there was a trial. I sat patiently through the trial, watching with interest as lawyers cross-examined witnesses. Now while it is great for me to get to watch a defense lawyer get an RCMP officer to admit it is hard to get an actual sense of the sobriety of a citizen they don’t know, I feel bad for my client, who had been moved from a small cell in the RCMP detachment to a small cell in the court house, and who didn’t know when she’d get to appear before the court or even what time it was, besides from when I slipped out of the courtroom to tell her I thought it would only be half an hour longer.

Unfortunately, once the trial was finished, the Crown lawyer and myself were informed by the clerk that there were no bail hearings on the docket. As both of us had received disclosure in morning, we were quite surprised. My client was brought into the courtroom, where I had to explain to her that it appeared while the paperwork for her bail hearing had been sent to the Crown and myself, it had not been sent to the Court. While the Crown and I were happy to lend the court our copies of the information, that was not an option because documents proved to the Court have to be sworn to, and neither of our disclosures were signed. While the Crown was very helpfully trying to arrange for the RCMP to send the documents up to the court, the Justice of the Peace decided that as there were no matters on the docket before her (and that it was around four o’clock) she would close court.

If this whole process sounds confusing, it is. I can only imagine how hellish it must be when you are hoping to get out on bail. After the JP left, the court room was a tangle of lawyers, law students, law clerks and an RCMP officer talking about whether there was anything to be done. I tried to explain to my client what was going on, while at the same time hoping to have some matter to discuss with anyone in the courtroom, because explaining to someone that they’ll have to spend the night in prison because of a paperwork mix-up is something you really want to do as little as possible. On top of that, we needed to sort through whether she would be allowed to spend the night in the women’s correctional facility, or whether she would have to go back to the RCMP detachment for the night. The difference between the two is large. The women’s facility, while still a prison, is at least a place designed for people to stay for an extended period of time. The RCMP detachment cells are small concrete affairs, where prisoners are given a microwave Hungary-man dinner at lunch and supper (why breakfast is not provided is an alarming question at best) and mattresses and toilet paper are given out to the prisoners based on some criteria I have yet to figure out (assuming its not arbitrary). Obliviously my client did not want to go back to the RCMP detachment. To be able to go to the women’s facility however, their needs to be a signed remand warrant, which is usually signed when someone looses their bail hearing. As we didn’t have a bail hearing, there was no remand warrant. Eventually someone with the authority to sign a remand warrant was found, but even with that document, it was no guaranteed that my client would get to go to the women’s facility, because they generally don’t do one-day intakes. The RCMP however, said they would ask. I will find out tomorrow morning where my client spent to night when we appear before the court in the morning.

Now with the help of practiced lawyers, both the Crown and defense lawyers from my office, I understood what was going on today, and felt I was able to advocate as best as possible for my client. However, for my client, she told me she didn’t really understand the reasons for what was happening, and I wouldn’t blame her if she can’t tell whether I’m doing a good job or not. I try to be empathic, and explain as simply as I can what’s happening. However, I can’t imagine what it is like to be told she can’t have her hearing because there was a problem with paperwork, the Justice of the Peace went home, and the she might have to spend the night alone in a concrete room because it’s only one night. If not Kafkaesque, I’m sure the words arbitrary and unfeeling apply well to the process.

The irony here is that someone can be denied bail if their release would cast doubt on the administration of justice. I’m certain my client now has her doubts about the administration of justice, but nothing about what happened to her today will work in her favour tomorrow.

 

Also confusing and troubling, the possibly unprecedented return of ice to Frobisher Bay in August. This prevents the sea-lift from unloading its goods, and has temporarily ruined clam season, which is a free source of food (which can be frozen and kept year long)

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