On Bail and Cultural Questions

2012-Chris-DurrantBy Chris Durrant

There is one topic that my fellow intern and I never fail to get tired of talking about. Weekday evenings or on the weekend, we inevitably will speculate on whether there will be any bail hearings waiting for us when work starts the next day. This speculation is usually tied into an ongoing theory about the weather told to us by one of the administrators of Maliiganik Legal Services: people are far less likely to get in trouble when the weather is nice. The reasoning is that people are more likely to be out of the house and onto the land, meaning people aren’t cooped up and are busy with hunting or fishing. Additionally, they don’t want to risk getting taken into police custody, which would lead to missing out on the nice weather: considering the brevity of Iqaluit’s summer, this makes a lot of sense.

We talk about bail so much, because we really like running the hearings. We certainly feel bad that we hope for bail hearings, because it means at minimum someone has spent a night in an extremely questionable RCMP detachment cell, not mention that some sort of crime might have been committed. However, we enjoy it because for summary or hybrid charges, we are allowed to go before a Justice of the Peace and argue that our clients should be released on bail, while Crown lawyers (some with decades of experience) make arguments that they should be detained.

The process up here doesn’t rely on jurisprudence as much as it does in the south, as far as I understand. There are a few points of the law the lawyers, interns and Justice of the Peace (who are almost without any prior legal training) all are familiar with, and our arguments are generally confined to the fundamental questions which come from those points of law. The likelihood of the accused showing up to court, and the likelihood of the accused committing another crime while out of bail are the two major concerns. The smaller ambit of issues is what makes me feel confident that I can provide my clients with the defense they deserve.

This is important, because not only does the client’s liberty for the two to four months leading up to trial hang in the balance, but a number of statistical analysis have shown that being denied bail makes you significantly more likely to be proven guilty, likely because being remanded to prison limits people’s access to their lawyers, as well as making them look guilty because they will enter the court from the cells and in prison clothing. On top of this, people who have been remanded are more likely to plead out, because they simply want to get their time in prison done as soon as possible.

So, despite my eagerness to get to defend clients in bail court, the high stakes involved make it a serious situation, stressful for the counsel, and even more stressful for the client.

Inuit and the Bail Hearing Experience

I’ve run roughly ten bail hearing so far, and assisted Maliiganik lawyers with others. So far all of my clients have been Inuit. This is interesting for me because one of the things I want to get out of my internship is to get as much understanding as I can about Aboriginal people’s experiences with the Canadian justice system. In one way I am getting a great experience, because I see first hand what their experiences are like. On the other hand, I lack a comparator group to interact with, and see how they approach the bail hearing. Therefore I don’t really ascribe any cultural connection to the way my clients approach things. When I ask a client at the end of discussion about release plan options if they have any questions about the process or anything else, and they say “I want to get out” I just take it as a natural reaction to how unpleasant being in jail is.

This weekend I’ve been fortunate enough to have the time to read some of Rupert Ross’ book Dancing with a Ghost. Ross worked for years as a lawyer in northwestern Ontario. His book is an attempt to examine the Cree and Ojibway worldviews and to show how this effects their interaction with the justice system. Ross is careful to give a disclaimer that he has likely come up short in some of his descriptions, and that his descriptions shouldn’t been taken as applying to all of Canada’s aboriginal populations. I’m certainly conscious of that, but reading nonetheless has made me question some of my assumptions about my client’s behaviour. I wonder now whether the almost obligatory “I want to get out” response to my asking if there are any questions comes from a strong desire to get out, or whether I’m missing something.

One trait that Ross points out in his book is that there exists an ethic of non-interference, which means parents let their children make their own choices. I’m not sure whether this is also practiced by the Inuit, but if it is, I’ve heard Crown attorneys make arguments in court that (very likely unintentionally) exploit this cultural factor. I had a client who was having a bail hearing because he had missed three court dates. To convince the justice of the peace that my client would show up to court, his father was willing to act as a surety (someone who promises the court to make sure the accused attends court and follows his bail conditions).

The Crown raised the point however, that the father had let his adult son miss his previous court appearances while living in his house, why should the court be convinced that he would now make a difference. I responded that he had never made a commitment to do so to the court before, and so this was a fundamentally different situation. The justice of the peace accepted my reasoning, and my client was released. The justice of the peace that day was an Inuit woman however. Would the Crown’s argument been accepted if the JP was a settler that day?

In addition to how it would have affected the outcome of the bail hearing, the fact that the bail system makes demands on friends and families of accused individuals to make demands on them and tell them what to do is certainly at odds with the ethic of non-interference. It must be a sharp reminder to anyone immersed in that cultural ethos that the Canadian legal system is not their own.

Reading Ross’ book certainly means I will be asking more questions to the Inuit lawyers and staff at Maliiganik, and hopefully I will be able to better understand my clients, and even make cultural arguments in their defense. Given how hard it is the pin down what cultural characteristics are, and if ones that existed in the past persist, I understand it is a difficult task however.

Would you commit a crime in this weather?

Band-aids on gaping wounds?

chiaraBy Chiara Fish

Iqaluit (meaning “place of many fish”) – now including this one – is large, well-equipped and very friendly. I am working at Maliiganik Tukisiiniakvik, the legal aid clinic that serves the Baffin region of Nunavut.

I love working here. There is a strong sense of community and people are very welcoming and friendly. It is shockingly beautiful. The apartment in which I am living overlooks Frobisher Bay and everyday I can see the ice melting, the tide coming in and out and the mountains becoming browner as the snow melts. Soon the first ship (an icebreaker) should arrive.

One of the many advantages of working at legal aid in the North is that they throw their student interns directly into the fray. Right now I am focusing on criminal law and later I will work on family law as well. Nunavut unfortunately has the second highest crime rate in Canada, so there is lots of work to do, especially considering the shortage of lawyers. In addition to research, I interview clients before trials and in my third week I began running my own bail hearings. Everyday is different and exciting and full of learning.

Our staff includes one Inuit lawyer and several courtworkers, but most of the lawyers in Iqaluit are white. It is amazing to see how the Inuit courtworkers can interact with the clients as compared to the rest of us. Not only is there a language barrier, but people who are truly part of this community know one another and relate to each other in a way that an outsider cannot. Clearly there is a need for more Inuit lawyers. I do not understand how it is possible that the Akitisraq law school program has been put on hold for lack of funding (Akitsiraq).

I am shocked by the absence of treatment centers in Iqaluit. People are held in custody at Baffin Correctional Center, which is currently at about twice capacity. This must constitute some sort of rights violation, in addition to violating fire and other safety regulations. Yet the system is seemingly unable to address the underlying problems that lead to offences and recidivism.

Given the extremely high rate of alcoholism in Nunavut, it seems absurd that there is no treatment center in the territory. If people want treatment, they must go south – separated from their families, culture, language and support systems. Many of the sentences include a condition that the individual not possess or consume alcohol or other intoxicating substances. In the absence of treatment, it seems absurd to put an alcoholic or drug user on such a condition – they are basically being set up to breach the condition, which can result in jail time and can go on their criminal record.

Sometimes I think it would be more productive to be a social worker, psychologist or psychiatrist working up here because then at least one could address the underlying and long-term issues that people face. As one of my colleagues said, often it feels as though we as lawyers are just putting band-aids on gaping wounds. I find it especially difficult to see youth already trapped in the criminal justice system who are angry, unable to express themselves and unable to get the treatment they need. It seems as though we as a society are really failing…

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