Topics: Drug-Related Offences, Domestic Violence and Duress, another category of people that should be recognized under Gladue, a lot of blabbing…
One of my favourite quotes from Professor Kiyani this year was his response to our midterm: Given how many people were adamant that trafficking of heroin was not that serious of a crime, it seems that either (i) very few of you have tried heroin and experienced its addictive, life-hijacking qualities, or (ii) way too many of you have tried heroin and lived the good life. I’m not sure which is better.
I honestly can’t remember whether I was adamant that trafficking heroin was not a serious crime or if I was just indifferent. But I can say with confidence that I was not among the few that identified trafficking of heroin as a serious offence. I do have a reason for this and its not because I’ve “lived the good life”. Nor is it because I condone substance use, misuse or abuse. In fact, I’m one of the biggest proponents of being substance-free… you know… except for bi-weekly binge drinking at Taphouse (RIP).
Instead, my “treading lightly” around drug related offences was because of everything I learned during my MSc. Briefly, I did a study on patterns of substance misuse during pregnancy in a cohort of women enrolled at an early-intervention program (http://www.mothercraft.ca/index.php?q=ei-btc). Through my study, I got the opportunity to get to know a group of women, each with an individual story plagued with DV, addiction, childhood trauma, and a lack of healthy relationships. Without going into too much detail, it is important to note the severity of hardship experienced by most of the women who I worked with. The majority of the women did not finish high school, were in a severe level of poverty, had been incarcerated or at least in trouble with the law, many had children taken away by CAS, and all were alienated from health and social supports. These things, though devastating and weaved through every aspect of these women’s lives, did not define them. What defined them, instead, was their strength.
Getting to know the women at the program gave me a unique lens from which to view the law. When we learned about “battered-women syndrome” (BWS) I wondered why this couldn’t apply beyond self-defense to offences related to drugs, assault, theft and gang-related crimes. In a brief excerpt in the Crim text, Martha Shaffer discusses this possibility. She states that the courts have generally rejected claims for duress via BWS. It seems as though the evidentiary progress that has been made for self-defence needs to be broadened in this area as well. There are many cases in which women have no safe escape from committing crimes (such as trafficking or prostitution) because of their relationship with abusers and the protection they want to offer for their children (among other reasons). Hopefully the courts progression, albeit slow, towards realizing gender equality will broaden the scope of duress to include women who identify with BWS.
When we learned about Gladue, I immediately thought of another group of people who need this court because of their probable overrepresentation in the criminal justice system. There are many theories about the determinants of involvement with the criminal justice system later in life, but one of the most convincing stems from the ‘adverse childhood experience (ACE) study’ (http://www.childabuseqc.org/adverse-childhood-experiences). This applies to aboriginal peoples as well. If you witness or experience trauma from early ages it is not just a blip in your history, but something you must overcome and deal with throughout adulthood. In some respects it is like a rebuttable presumption that many struggle to rebut.
I may make an unpopular argument here, but hear me out. In a vacuum, lets compare two children. The first is an aboriginal child who experiences violence, a lack of nurturing relationships, poor health and is surrounded by substance abuse from a young age. The second is a child who grows up with a very young mother in downtown Toronto. His mother was using while pregnant, got beat up frequently by her partner who was in a prolific drug ring, she did not access any medical services during pregnancy, and gave birth on her couch. In a vacuum, if you look at these children they are very similar. Sure, the history of their people is very different. BUT the children have similar experiences in the first few years of life, which will follow them for life. If we now assume the ACE study is on the right track and these adverse childhood experiences are one of, if not the biggest determinant of the adoption of risky behaviours in adulthood, then these two children are on similar ground in terms of life track.
There are, of course, differences moving forward. Children outside of reserves may have more opportunities to access the support they need and build the bonds that will sustain their growth away from an unhealthy path of destruction. But, if imprinting does occur beyond a point of no return, the history does not seem to have near as much of an impact as the child’s immediate environment. This is not to negate the experiences of aboriginal peoples and the tragedy of residential schools and the impact of colonialism. It is more so a flag to recognize the other groups that require the support and compassion of the criminal justice system.
The best thing about my research is that I got to speak to women who were on the up swing. They were seeking help, building healthy relationships with service providers and their children, and recognizing the unhealthy behaviours that they once normalized. They were essentially working to rebut the presumption that had followed them since childhood.
When I started writing this I wasn’t quite sure where it would take me. I honestly still don’t know what my point is. I guess overall I wish that everyone entering the criminal justice system could receive compassionate support instead of being thrown into an adversarial environment where they are scared and completely out of their comfort zone. I think this is especially important in criminal and family law matters because there is an overrepresentation of people of low SES. I realize that it is hard to come from a place of understanding when the vast majority of lawyers and judges are privileged in comparison and may not be able to relate to the struggles their clients are going through. But that is part of the challenge and the attraction to a legal career. We must define our clients by their strengths and not their weaknesses.
To cap, we do not know why Stephanie Tanner was trafficking heroin. Maybe her and Gibbler were prostitutes and their pimp was making them hold it for him. Maybe her partner threatened to beat her up again if she didn’t come home with the $3,000 from the heroin. Or maybe she wanted to weigh the perfect amount so she could get high AF and not have to deal with the awful reality of her life. I feel like the way the police officer treated Tanner was way more out of line than Tanner’s possession of ( and intent to traffic) heroin. That is why I said it wasn’t a big deal.