On today’s episode, Myrna speaks with Benjamin Perrin, who drops some truth about the criminal justice system in his groundbreaking book, Indictment: Criminal Justice System on Trial. Get ready for a podcast interview that'll leave you questioning everything you thought you knew and change your practice forever. Check out Ben's companion podcast at https://indictment.simplecast.com/ and his website for more info: https://benjaminperrin.ca/ and if you want to attend the Justice as Trauma Conference, you can find more details here: https://www.myrnamccallum.co/justiceastrauma
The justice system in Canada is broken. It traumatizes people who go through it and leaves them worse off. But how can we change a system that refuses to transform itself? Today, I talk with Benjamin Perrin, a law professor at the University of British Columbia Allard School of Law. We talk about how this revolutionary author is shaking up the status quo with his book and podcast series, Indictment: Criminal Justice System on Trial, and about the tools and approaches that break the cycles of harm and trauma in the courts, policing and prisons. It's time to challenge the system!
Check out Ben's companion podcast at https://indictment.simplecast.com/ and his website for more info: https://benjaminperrin.ca/
If you want to attend the Justice as Trauma Conference, where Ben will be speaking alongside Dr. Gabor Mate and others, you can find more details here: https://www.myrnamccallum.co/justiceastrauma
As you know, I believe that law schools and bar courses are missing a critical competency requirement in their curriculum, trauma-informed lawyering. Becoming a trauma-informed lawyer will, among other things, challenge you to critically reflect on your personal behaviors, beliefs, and biases, call on you to positively transform the way you approach advocacy, guide your practice to avoid doing further harm to others, and ask that you commit to remaining open to learn new and old knowledge you didn't know you needed before beginning your career.
Your education starts right here. Right now.
INTERVIEW INTRO
When it comes to talking about the criminal justice system in Canada, we often hear the phrase “the system is broken.” But what would it mean to do things differently?
Imagine somebody actually asked you that? What would you say?
That’s what Jody Wilson-Raybould asked in a public consultation on justice reform in 2018. Raybould was then the federal justice minister and her department invited Benjamin Perrin to the consultation. Perrin is a law professor at the University of British Columbia Allard School of Law.
These questions and others led to Perrin’s new book and podcast series, Indictment: The Criminal Justice System on Trial.
Like the title suggests, Perrin puts the whole Canadian criminal system under a microscope and he asks the right people the right questions.
🎵 AUDIO/MUSIC CUE🎵
He talks with those who have been directly impacted by the criminal justice system and the tough on crime approach. And he does this in such a thoughtful and respectful way.
(siren sound)
VOICE: One of them said, it is my prison, I can lock you up however I want. I feel that prison is essentially an asylum for the unanswered mental health questions.
You are hearing a bit of audio from the trailer to Indictment.
Indictment also asks us:why do we deliver justice this way. Could we one day deliver justice differently? Could we redefine justice?
Ben actually interviewed me for the book. And I can tell you, as a former prosecutor, Indictment will change your practice. It will. And if you are open to truly receiving the stories inside this book, you will be transformed in ways that I cannot even begin to articulate for you.
So today on Trauma-Informed Lawyer: Benjamin Perrin puts the criminal justice system on trial. Let’s get into it.
🎵 MUSICAL TRANSITION🎵
INTERVIEW
[00:02:50] Myrna McCallum: Okay. Hi there, Benjamin Perrin. Welcome to the trauma and some lawyer podcast.
[00:02:53] Benjamin Perrin: Hi, thanks so much for having me. I'm so excited to talk to you today.
[00:02:57] Myrna McCallum: This book Indictment: The Criminal Justice System on Trial, I believe is the full title, is coming out in October. I've been reading it, putting it down, trying to digest it, read it, cry a little bit, put it down, come back to it.
[00:03:12] It is—wow, that book not only is a reflection of my lived experience, but also the lived experience of many people I grew up with, but also My lived experience as a lawyer who worked to both as defense and as aprosecutor. So I have all these like different lenses. What inspired you to write this book?
[00:03:34] Benjamin Perrin: That's a great question. And as I thought about where it all started for me, it was a letter. You know, I get letters from sort of random members of the public as a law professor. People maybe hear you on CBC radio or something and they have some issue in their life and they'll, you know, have no one to turn to.
[00:03:50] So we get letters like out of the blue and this was one like that. It was a handwritten letter. It was different to me, like it tells nine pages long. And as I read it, I was looking for the ask, what is this person asking for? Right? What do they need? They didn't ask me for anything. It was an indigenous man who's an inmate here in British Columbia.
[00:04:10] And all he wanted to do was to share his story. And I don't know why he picked me. You know, there's dozens of other law professors out there, but that letter came to my mailbox at UBC. And as I read it, I didn't know what to do with it. You know, I put it aside. I came back to it a few days later and read it again, and there was one line in there that haunted me.
[00:04:29] It stood out. He wrote, ‘if you want to turn a man into an animal, put him in a cage without the resources to build them back up.’ And so I, I mean, again, I didn't know what to do with this. So right around the same time, this was in 2018, Jody Wilson-Raybould was the minister of justice and attorney general.
[00:04:47] And under her leadership, you might remember Justice Canada had this big consultation, right? And one of the questions they asked was if you could redesign the criminal justice system from scratch, What would it look like and why? And I was asked to answer it. I was part of the consultation process. So I got this big question about how could we do things completely differently?
[00:05:07] And then I've got this letter that just hit me like a two by four. So I didn't know what to do, but I brought it in the classroom. You know, that's what you're supposed to do as a teacher. And, we canceled the class that I had planned for my criminal law class. And we simply talked about that question and that was the spark for this whole project.
[00:05:24] Myrna McCallum: Amazing. That's quite the spark. And so at what point did you start to explore trauma, like specifically the traumatic experiences of people who were coming through the system?
[00:05:39] Benjamin Perrin: Yes, it was an interesting thing because I was in my own life around that timeframe going through what I can only describe as a bit of a midlife, a big midlife crisis, not a bit of a midlife crisis.
[00:05:49] And that involved my wife too. And it was only then that I started really understanding and learning about what trauma is and how it impacts people very directly. And, you know, she's a trauma survivor, and we didn't think that that impacted her and our relationship and us as parents at all.
[00:06:09] She did too. These are things that happened in the past, right? That was, you know, decades and decades ago, but as we both know now, that's not true. Trauma impacts us if it's not addressed in so many different ways that we never have any idea about. So as I was learning about that through her journey and in my own journey, and it was a slow journey.
[00:06:28] I started reading work by people like Gabor Mate, and as I was doing my other legal research, I came across the research on adverse childhood experiences, ACEs, and learned about the connection between childhood trauma and people who commit offenses and people who are victimized. And at that point, I realized this changes everything.
[00:06:49] And as I began to learn more and more, what I thought I knew over at that point, you know, 15 or 20 years of working in and around the criminal justice system and researching it and teaching it, I realized I had to pretty much throw out everything I thought I knew and begin with an understanding of what trauma is and how it impacts people and talk to people and hear from them directly about those questions.
[00:07:13] You know, what was the justice system like for you? How could we do things differently?
[00:07:18] Myrna McCallum: There are definitely a lot of stories, like a lot of really hard stories in your book, Indictment. And like, right, I think within the first 20 pages, I have to say, Ben, I was like crying, like crying, like a deep cry that I don't think I've had in a really long time because I could connect to what was being communicated.
[00:07:40] I also really love that you allowed people to tell almost like not just the fragmented pieces of their story, which focused on the degree of hopelessness and helplessness and trauma that they were going through. But you brought many of their stories full circle to how they overcame and how there was hope and how many people you interviewed had pulled their lives together and overcome a lot of what they had endured.
[00:08:08] And so what was it like for you to listen to these stories and why was it important for you to also share the hope and the recovery that was shared with you?
[00:08:20] Benjamin Perrin: I had an inkling when I started this project after getting that letter, I had to talk to people with this real lived experience with the system.
[00:08:27] And before I get into what that was like, just to understand that's not done in legal research. The traditional legal research is still 80 percent of it, it's fair to say, is sitting, I'd say, in the law library, but you know, when does that anymore sitting on your laptop and, you know, reading cases and articles and peer reviewed books and all that stuff.
[00:08:48] And, you know, there's a place for that. And, there's really no emphasis or real interest even, I would say in speaking with people who have lived experience, despite the fact that law professors, including myself write almost exclusively on things like, you know, what should the law be?
[00:09:05] Does this law work? Does it not work? Maybe they'll go and look into some interdisciplinary research, you know, maybe they'll go read some sociology or something, but the number of law professors in the country who've actually talked to a single person in their research, who have experienced the subject matter of their research, whether it's criminal law, family law, whatever it is, is a fraction of a percentage. And so as I was starting to get into this research, I started out by saying, I'm not just going to talk to the usual suspects. So I started contacting people who were not reflective of necessarily the mainstream, but had tremendous professional experience.
[00:09:35] That's how I came across someone like Harold Johnson. I'd read his book, Peace and Good Order. And then I also went and read Firewater. And I was like, I need to talk to him. Here's an indigenous man, Harvard educated like yourself with experience as a crown and defense lawyer and such a compelling story.
[00:09:50] So I reached out to him and he was very generous with his time, took a full hour and we did an interview. And in his book and in our conversation, he is very blunt, right? He is like, you're wasting air. He said, if you don't talk to people who are affected by the system, you're doing more harm.
[00:10:07] And so that inkling that I had, I knew I had to go speak to people impacted by the system. Once I'd spoken with Harold, there was no other choice, right? And I jumped in and learned what I needed to do. And we got the ethics approval. And the question we asked people was really simple. It was a poster that we sent out, put out in halfway houses and in [00:10:26] women's shelters. Literally, that's what we did. We reached out to every organization that supports people who have committed offenses and people who have become victims or survivors of crime that are in the DOJ database. So lots of people and the poster was in big bold letters and it simply asked, what was your experience like with the criminal justice system. And the emails and the phone calls and the messages started flooding in and people wanted to tell their story.
[00:10:51] And many of them said they'd never told anyone their whole story. It's like what you mentioned a minute ago, right? They may be told part of their story, maybe to a police officer or, you know, most people don't even end up at a trial. Maybe it was in trial, but very few ever end up there. And, they wanted to tell their story.
[00:11:05] They also almost universally, whether these were people who were coming to me as people who had recently served time in prison or were survivors of very violent crime, in some instances, their motivation was to help others. They were thinking about other people, and they would frequently say, if by sharing this with you, it can help someone else, I'm willing to do it.
[00:11:25] The first person I spoke to, I call her Courtney in the book, obviously to protect her privacy. She's a 39 year old Indigenous woman. Between 12 and 39, she spent 25 years imprisoned. One of the things that I found really obviously disturbing was, as she spoke, she talked about her attempts to take her own life while incarcerated in a segregation cell.
[00:11:47] And, that night I woke up with the most vivid nightmare. It was me in the cell and I had made the mistake of booking three or four or five in some cases interviews per day for like a couple of weeks. And I had to slow that down. I had a counselor I'd been seeing and just said, we got to, I need to talk.
[00:12:06] And we talked about crying. I cried and I let myself cry. It's disturbing to me that we can spend. As lawyers, as judges, as researchers, decades of our life, hearing about trauma and the worst of the worst things that can happen to people and not shed a tear over that to be so shut down. And the things that I've found affected me the most weren't necessarily like the most traumatic things I heard.
[00:12:32] Just to give you one example, I remember in that session, what was really upsetting to me for some reason just stood out was that at the end of one of my interviews with someone—this was a, a man in his, I think he's probably in his thirties from the sound of his voice. I didn't actually get his age—but he finished talking about his experience being incarcerated and how it just devastated him to the point where he can't even go and stay in homeless shelters now because of it, reminding him so much of the prison environment and the availability of substances that he's trying to stop using. And so he was living off a bike path in Montreal, you know, on a tent side of the woods, you know, so while we're jogging by or riding our bikes or walking our dogs, just a few, maybe not even a hundred yards, 20, 30 yards in, there's going to be a tarp or a tent.
[00:13:15] That's where I call folks like that. It's our neighbors. That's where our neighbors are. And he was asking me—we offer a very small honor area. It's not a lot of money. It's just to recognize our time—he asked, Hey, do you know when I might be able to get that honoraria because I'm really hoping to like get a hostel tonight.
[00:13:30] It's really cool tonight. That was the thing that got to me just realizing like, this is, this is a completely different, you know, life than I'd ever experienced and just feeling, I think a tremendous amount of empathy. I think it can be really hard, for folks to understand and empathize. And so that's where there's going to be stories in Indictment that. [00:13:50] may be connected with you on a real deep level, like you shared a minute ago, more than, than it did for me or another reader. But what people see in the book is it's reflective of a whole real wide cross section of society. And the criminal justice system is not working for anyone. It's really not working for anyone right now.
[00:14:07] Myrna McCallum: That's true. And I'm really glad that you brought up Harold Johnson because I just adored him and I think the world is like a sadder place without him in it. So I love that you talked about him right off the hop and that you emphasize how he would say, that, you know, if you really want to know what the experience is or how to improve things, you need to talk to the people who are directly affected.
[00:14:33] And he said it in this very, as you said, blunt kind of way that totally was how Harold was. And so I'm really glad that you went directly to the source because what did stand out for me as I was reading your book is that you, We're actually listening to people. You were listening to them. You weren't just listening for the soundbite and then ending the interview and only giving us the frame of, you know, the stereotypical indigenous person, which is, ‘Oh, they are poor.
[00:15:03] They are drug addicted. They're in prison. Like this is all that they are.’ You actually let the readers see the rest of the story for so many of the people that you interviewed. You know, listening and or reading and hearing these women like it was really the women who impact, like their stories were impacting me about recovering coming out of spaces. That one woman who got her driver's license back never thought that and another one who bought a house in the forest and got her degree and built a life that she couldn't have ever imagined that would have ever happened for her.
[00:15:41] But she got there. And I have to say, Ben, the thing that made me cry in the first bit of the book was in relation to the one young woman who was in the washroom at the hospital and police officer going into the washroom and his words of compassion when he said, ‘Oh, no, sweetheart, like, don't do that.’
I started bawling.[00:16:03] It reminded me of a moment of compassion I experienced in a dark time, but it also reminded me of all of these missed opportunities. I think that police officers and deputies or bailiffs and lawyers and judges have, where if you would ever just take a moment and speak to that person, like a human being who is hurting a moment of just simply saying, Oh no, sweetheart, like don't do this to yourself or don't choose this life that could change everything.
[00:16:41] And that was the thing that made me like break open and start crying. It was powerful.
Benjamin Perrin: I think you're onto something here. I mean, I think there's at least two ways to read this book. One is: it's a policy book. It's a policy book with some pretty powerful stories and statistics and research. That's one way to read it.
[00:16:59] The other way is to read it as a really personal journey for you as a reader and for each of us. And to say, what could I do in my small sphere of influence to be part of. someone changing someone's life for the better. Whatever someone's role is in general public, or people listening here, many of whom working throughout the legal profession, all over the world, those moments make all the difference.
[00:17:26] They, they absolutely do. So we've got a real opportunity here. Are we just going to keep doing business as usual and, you know, treating people, we may call them clients or not, but they are just kind of cogs in the judicial machine or these are these real people? I wanted to make sure that, you know, we're faithful to the stories of people who were courageous to share, but also that people couldn't dismiss them as just, ‘Oh, that just happened to that one person.
[00:17:52] Oh, that's horrible that that happened, but that's just the one incident.’ So I always go to the research pretty quickly right after you'll notice and go: actually, just so you know, this isn't just this one person. This is in fact replicative of the broader group of folks. And here's some stats from Statistics Canada that says that here's a few of those professionals who can attest to that.
[00:18:10] Here's some peer reviewed articles to back that up. Because in my journey of really changing my own views on a lot of stuff, including criminal justice issues has been that it's not enough to try to change our minds. We need to soften our hearts, right? We need to do both of those things. And unless we're willing to, to do that, then no amount of stats are going to matter.
[00:18:29] So for example, if we look at something like the disproportionate number of indigenous people who are incarcerated, what percentage makes people change their views? I don't think there is one. If we look at the unregulated drug crisis and how many tens of thousands of Canadians have died, does it matter to someone if I tell them it's a hundred thousand?
[00:18:49] I don't think it does. So that's why I think the statistics are ultimately not the way to go and not helpful in achieving lasting change. And that's why I do feel that we needalternative ways to very creatively help people understand what's taken, you know, most of us years to kind of learn. And so that's true stories.
[00:19:08] That's why I wrote this book in a way that's accessible to anyone. And that's the idea. The other reason we're doing a podcast for this book Indictment is because, you know, a lot of people won't read a whole book, but they'll get to actually hear the voices of the people that you're reading. So whether you read the book or not, the podcast is going to be a really cool and interesting supplement I think.
[00:19:26] Myrna McCallum: Oh my gosh, reading the book is powerful. So I can't imagine what it's going to be like to actually hear the voices of people. So where did the inspiration come to do a companion podcast? And like, what are you hoping this book will do? And the voices of those individuals on the podcast, how are you hoping this is going to shift the reality we’re all in right now?
[00:19:48] Benjamin Perrin: Well, when I started the work on this book, like I mentioned, it was around 2018 or so when the idea got going and, you know, move a few years forward into that we had the Me Too movement; Black Lives Matter; No More Stolen Sisters became a national movement. It was already a national movement, but it became something that was undeniable to anyone.
[00:20:08] No one could pretend they hadn't heard about it. The whole Defund the Police movement. All of these, this sort of rising tide of really existential concerns about the criminal justice system. That was the context in which most of the research and interviews were done. As we moved to the analysis and kind of writing up with the book, we started to actually see, it started about a year and a half maybe ago, right after kind of COVID lockdown started sort of really ending and that, a real resurgence of tough on crime,
[00:20:34] what I would call tough on crime 2. 0. So this book and this podcast are actually coming out in a completely different political and media environment than we anticipated. And so that brings a whole fresh set of challenges. And before the frame was there's widespread agreement, the system's not working.
[00:20:50] What are some better ways we could do it? Now we're actually faced with a question. The question is, do we double down on the tough on crime approaches, which means more police, stricter bail conditions, longer and harsher prison sentences. Or do we do something completely different? And there's absolutely no way to tell right now where we're going to go.
[00:21:11] But there needs to be people and a lot of people talking about better and different ways we can do things because the status quo isn't working. And there's a real temptation of, I'll say voters to go with the politician who promises to keep them safe. I had someone, Fritzi Horstman explained to me, she's with the Compassion Prison Project.
[00:21:30] She said, tough on crime, people who vote for that, that's their trauma response. And I was like, that's yeah, totally. People are afraid. What do you do if you're afraid? There's someone who says, I'll protect you and we're going to have more police and we're going to keep those people out of your communities.
[00:21:48] You won't even have to see them. So what Indictment does is it does two things. I mean, the first part of the book puts the system on trial and it does something I think really important that I haven't seen anyone else do, which is to say the problems with the system can't be fixed. That's a big claim and that's why I spend like 250 pages on it with the stories and the stats that the problems are inherent within the system.
[00:22:11] Reform isn't really the way forward. We actually need a new transformative justice system. And that's where I set out sort of seven key pillars to it. I'd love it if we did all of them. Like that's what we should do. But I'm also interested in us moving forward on some of them and moving forward on some of them really, really quickly, things like non-police civilian mobile crisis response teams that are available 24/7.
[00:22:34] So instead of having an armed police officer go to a mental health call and someone ends up dying as a result. You have someone who is a crisis counselor who goes to the door to do the check and that they're plugged in with the 911 system. A lot of people say, ‘Oh, we have that in our community.’ I'm like, no, [00:22:49] they're not plugged into your 911 system. And in North America, there's over 200 jurisdictions now that have mobile 24/7 non-police crisis response teams.
That's something we could get behind pretty quickly. Other things like abolishing traditional prisons and jails probably couldn't convince, you know, the public yet to do that [00:23:06] to all them. How about one? Let's try it. Let's try one. Let's try one that is like a Halden prison in Norway. And see the results. See the reduced recidivism. See people leave prison better than when they entered it. And ultimately 99% of people who are in, in some sort of custody are in Canada are gonna be released.
[00:23:27] That means they're moving in next door to you and I and, and people who are listening. So the question is, what kind of neighbor do we wanna have? That's the question they asked in Norway. So that's where I'm hoping that the conversation with both the book and the podcast, which really supports it will go… is people can say, ‘Hey, there are different ways that are better. They actually work. They're not just neat ideas. Many of these have track records in other parts of the country and around the world.
Myrna McCallum: I have to say I can hear voices already. Like, well, this is the way we've always done it. And even though it's not working, you will still hear people say it with that voice because it's working for them.
[00:24:04] And I'm thinking about the judges who are getting the paycheck, who get to sit in positions of power, who get to make decisions, who are far removed from the people they're actually dealing with. Not all the time, but most times. There are some people in these systems who will protect the system as it is because it's working really well for them.
[00:24:24] Benjamin Perrin:That's right. And so there will be resistance.
Myrna McCallum: And, you know, as long as we have resistance like that, Ben, what do you foresee the consequence being?
[00:24:34] Benjamin Perrin: I'm starting to see people actually checking out. I see it on a personal level and I also see evidence of it in news stories too. I'll give a couple examples.
[00:24:42] I know multiple people who, personally, who were with the Federal Prosecution Service, which people probably know mainly does drug prosecutions, who quit those jobs, walked away from those well paid government jobs with pensions because they ethically could not continue to perpetuate a flawed war on drugs, which the research shows actually has made things worse and continues to create an unstable, unregulated drug supply.
[00:25:07] Basically, the evidence is the more drugs you see is the worst things get. So it has the exact backfire opposite. So ethically they couldn't continue. We were hearing that the police are having problems recruiting. I mentioned a minute ago about promises to hire more cops. We had that here in Vancouver. A hundred new police officers were promised.
[00:25:25] All our property taxes went way up to pay for that. There was a Mayor Ken in Toronto who lost, but he wanted to hire 500 new uniformed officers in Toronto. These numbers are just picked out of thin air, by the way, right? There's no evidence, of course, criminologically, that more police reduce crime.
[00:25:39] There's no evidence doesn't correlate at all, but people are willing to vote for it. So they're having trouble recruiting though. People don't want to become a police officer because of what they're seeing in the community. And so there's a problem there. So through some of the attrition, that's happening.
[00:25:54] But I hope that with the people who are in the system, maybe we'll talk about judges for a minute. If I were a judge and I read this book, I would be absolutely outraged. I think judges are either unaware or I will say willfully blind to their role in perpetuating—I'm going to use some tough talk here.
[00:26:12] And I don't know if it's okay, but like, I think we need to do that at this point. I don't know what's left here. You're sending them to jail. You're the person ordering that. And the problem is that legally, there's a distinction between the judge's role. There's that Latin term, defunctus, which is always a funny term when students laugh when they hear. They're done, basically you're done.
[00:26:30] So you've sentenced someone to a term of imprisonment. Your role is finished. And now it's managed by law. It's managed through the Corrections and Conditional Release Act and the parole board. So you're done. But you're the one who sent them there. Now, I remember reading a book about Chief Justice Brian Dickson, and I don't know if this is true, but it was published in one of the biographies of him, so I've got to believe it's partly true at least, that he would not send someone to prison unless he had personally visited the institution.
[00:26:54] If I were a judge, I would insist on seeing the conditions of confinement and I would want to get regular reports and I'd like to know what's going on because I'm the one sending them to that place. And you cannot ethically wash your hands. You are not a cog in the machine. You're an instrumental part of it.
[00:27:09] And I would be furious at not only the way that people are being treated in these, in these institutions, but also there'd be some real soul searching around that. And now I do have a role. I'm a liberal law professor. I'm teaching lawyers. I'm in my mid forties. Now, if I continue doing this, I will teach hundreds but actually thousands more, hundreds of whom will probably be criminal lawyers in some way, shape or form, and some of whom will be judges. Absolutely. And some of them already are out in the world doing that. I believe it needs to start with each of us. We need to kind of examine our own roles in the system and ask the question, am I ethically okay with my role in the system?
[00:27:44] What can I do? How can I do things differently? Do I need to walk away? Can I change things? So, we're way past the point of saying we didn't know. We're way, way past the point of being able to say we didn't know and the roles that we're playing within the system make us culpable in it. We need to be quite honest about what that means and we need to make some decisions about what's going to happen because as Harold Johnson said, ‘We've talked enough about tinkering with a system. That is not fixing things and it's not enough and stop patting yourselves on the back for having a workshop or something like that.[00:28:13] We're way past that.’
So what ultimately needs to happen on some of these issues I talk about with respect to indigenous justice is we need to get the colonial system out of the picture entirely. There's solid evidence that from indigenous led policing to indigenous led corrections and healing lodges, that those get better results, meaning lower recidivism, higher levels of community satisfaction, trust at a fraction of the price, but these are stymied and stifled, they’re choked to funding.
[00:28:39] Multiple First Nations have gone to taking the federal government to court and now one for denying them fundingfor administering their own policing and peacekeeping services. And so, that's happened in Quebec, the federal level, just this summer. It's an ongoing issue and there is absolutely no [00:28:56] excuse or reason for it. And so it's why I don't think we just talk about the tough on crime push of conservative politicians, but we also look at what I would describe as the, the half half-measures of, for example, the current federal liberal government who will say things like we're investing indigenous justice, but it's like 18 million.
[00:29:14] That was literally one of the announcements. Well, what does the actual settler system accrue to? No one knows. No one's actually added it up. We can tell you how much the healthcare system costs taxpayers and how much the education system, but no one even tallies up how much the criminal justice system costs. I had a student do that work at least an estimate.
[00:29:31] It's well over 25 billion a year. So settler system, that's 25 billion a year and you're making some big announcements about indigenous justice is what we're investing in and it's 18 million. 18 million is a rounding error. If you look at the budget, not even close. So we're not making real commitments.
[00:29:49] We're making these performative things and the system is a system. That's why I call it a system. It's not a person and it's really good at adapting and changing just enough to not get, you know, overturned.
[00:30:00] Myrna McCallum: Absolutely. I'm thinking about proximity. My friend Dan Jones, who's been on the podcast. He's a retired police officer.
[00:30:08] He and his brother, Scott, who's also my buddy, they have their own podcast called: Just us on justice and other things. By the way, Ben, you should go visit that podcast.
Benjamin Perrin: I’d love to.
Myrna McCallum: Two retired cops and keeping it real because one really cool thing about those guys is they actually have relationships with Indigenous people.
[00:30:27] They don't just talk about their work with Indigenous people or Indigenous communities. They are in relationship with Indigenous people. And Dan will often talk about how proximity is the thing that helps create connection and maybe compel a little compassion. And I don't see a lot of proximity in the criminal justice system, and I worked in those same court points where you fly in, you deliver justice, and I use air quotes, and then you leave.
[00:30:56] There's no conversation with the community about how the decisions the lawyers and the judge are making on that day are going to impact that community or impact relationships. You just go in, you kind of dictate and devastate, and then you fly away. There's no proximity in that. And one really takeaway that I got from the book, and it's really me just giving you props, Ben, is in addition to you not just looking for the soundbite that reinforces the stereotype of who sad, poor, Indigenous people are, you allowed for the story to finish and in that I could see that you were committed to listening.
[00:31:34] It wasn't just, ‘Oh, like, let's ask what questions do we need to ask? We need to ask the right questions.’ It's about listening. And I could tell you from experience this system and the players in the system have a real listening problem. Like the time is now, I think, to be teaching future lawyers and maybe even existing lawyers and judges, like, how do we listen?
[00:31:59] How do we listen to people? How do we actively listen to them? And how do we build relationships with people? So we can identify when there might be something else happening that could be driving certain behaviors.
[00:32:12] Benjamin Perrin: Absolutely. And I think that's the key problem with the system is it, it says, well, did you do the thing at the moment in time, right?
[00:32:20] That's all it's about. And it doesn't ask the question, it doesn't care. It's legally irrelevant that that person, for example, became a ward of the state or was in care from the moment they were born that, that, that, that's considered legally irrelevant, right? Completely irrelevant.
[00:32:34] It doesn't matter. We wouldn't want to hear it. It absolutely matters. Now, it doesn't excuse your conduct, obviously, but it certainly matters for the question the judge has at sentencing, which is questions around your rehabilitative prospects and what would be an appropriate setting for you if you are going to be separated from society and what would the impact of that incarceration be on you?
[00:32:51] Would it be net positive or net negative, right? Someone who's a survivor of childhood trauma and abuse, the prison environment replicates that abuse. It's got an authority figure in a place where you're now put back in the position you were as a child where you can't leave your, maybe you were locked in your room before now you're locked in a cell.
[00:33:06] That person has the ability to use force against you. Let me be very clear. There is no independent authority that will enter into that area and stop that misuse of authority or trust when it happens, not if it happens, when it happens, because it happens way too much. And you can, you know, I interviewed the correctional investigator of Canada and talked about this.
[00:33:23] And I mean, to get a case forward is just, you know, mind bogglingly difficult. And we heard so many stories of inmates, I shouldn’t say inmates, people who are incarcerated, who tried to complain and experienced reprisals for it. So it's not just the legal profession, that's our profession, but it happens actually more often than we'd think in other areas, like in the medical profession as well.
[00:33:43] That's why I spent some time, you know, reading a book called Damaged, which is written by two really outstanding, uh, scholars at Uof T, who are trying to get, I thought they were doing this only in medicine, but having training on trauma in medical schools, having doctors be able to ask these questions.
[00:33:58] So when someone comes in, for example, with a digestive problem, they don't just immediately say like, ‘Oh, well, like obviously going to send you for blood tests and maybe a colonoscopy,’ but they didn't ask the question, ‘what's going on in your life right now?’ You know, maybe they will learn that you lost your job, that you're going through a divorce, that you have these unhealthy eating habits.
[00:34:17] And it started when you were six years old and left home alone and you had a neglectful family or abusive family upbringing. And so asking those broader question– and they, they developed some screening tools–doesn't mean that, you know, we know there's limits on people's time, but there's ways to thoughtfully listen and good questions to ask.
[00:34:33] And those open-ended questions are really important. And so that's how we got to hearing people's stories. It's the questions that you ask and being able to then let people have the time and space to talk. And people actually, it was really interesting. You think it'd take a while, right? You think someone's telling you basically their life story.
[00:34:50] When I went back to it, none of my interviews were over an hour. In fact, some of them were 20 minutes long. That was it. But they felt safe and they shared and they were asked what happened and if things could have been done differently, tell me about what that would look like.
Myrna McCallum:Absolutely. You know, in my time of like listening to people, getting to know people, being in different relationships in different spaces, I'm finding, and I talk about this a lot now, it always comes down to people just want to be heard.
[00:35:18] They want to be seen. They want to know what they say to you matters. Yeah. Like, and if you can create an experience like that, then. I think then you're on a good path and the ability to cultivate things like compassion and empathy and patience and an understanding of different lived experiences, all of those things just start to grow and in a way that is balanced and doesn't necessarily compromise you as a decision maker.
[00:35:48] And the problem is the system is so like we haven't even talked about just how backlogged trial court is for I think every jurisdiction everywhere. They constantly complain about the backlog. And so if you've got a backlogged system and you don't have enough judges and you have stressed out lawyers with heavy caseloads and that is the system that currently exists, you're not going to have anyone who's going to want to take the time to see you, hear you, and assure you that what you have said to them matters.
[00:36:16] They're going to just be like, I want I need this information: ‘Oh, I see you crying. You need to put a pin in that because I still have three more questions for you and we only have 10 more minutes’. And it's so transactional and it's so cold and it's so like this is where we damage and dehumanize people and I'm really glad that you wrote a book that talks about, like gives a real account of just how damaging and destructive the system has become.
[00:36:45] And for who it's become damaging and destructive, and what we can do now and later to begin to transform these systems because, you're right, They do not work.
Benjamin Perrin: We can do things differently, you know, like it, and it's not, it doesn't cost more. That's the other thing. So if you look at that courtroom, you described that, that packed courtroom.
[00:37:05] And I remember those when I was a student in Toronto at the downtown courthouse, seeing the stack of files and, you know, I always, I wondered one day and no one, I don't know if anyone's done this, if anyone has, get in touch with me, but just add up the cost of, of an hour of that court's time.
[00:37:21] You've got the judge, you've got the lawyers, you've got the court staff, you know, whether it's a bailiff and there's the room and all that stuff. I think it's fair to say it's one of the highest cost rooms. It's maybe even cost more than an operating room to run. I don't know. That'd be interesting to see a comparison.
[00:37:35] Okay? My point is there's a lot of financial cost going into that system, which is backlogged and not getting good results. If we look at something like restorative justice approaches, you don't have a judge that's paid, I don't know what judge you're paid now, 350 or more up to 400,000 now, something like that, a year who's adjudicating the case.
[00:37:53] You have someone who's trained, who's gone through a professional program and has gone through a practicum and has, you know, done hours of shadowing someone else. And I mean, this isn't like a new thing. It's not like: what's restorative justice. Like it's been enforced for decades and decades and worked really, really well.
[00:38:07] One of the things we did is I spent some time speaking with one of the only restorative justice programs in the country that deals with violent crime. People are quite comfortable with, you know, if someone broke your window, let's do restorative justice, but actually dealing with, you know, assault causing bodily harm cases and things like that.
[00:38:22] And the reviews, the independent third party reviews of these programs, found people were more satisfied. So both the victims or survivors and the person who committed the offense, they're more satisfied with the outcome. And, there's reduced recidivism. The offending rates are lower and it costs less like, well, what are we doing?
[00:38:44] But what ends up happening is those cases, then of course they have to go back in the court to get those resolutions stamped by the judge. And I won't say more often than not cause I don't have stats, but I've heard about multiple cases in our interviews where the complainant even has entered the court and said, this person has made amends with me.
[00:39:05] They have made it up. We've spent hours working through and they've accepted responsibility and I don't want them to be punished. I considered it done. This is a, this was a serious assault causing permanent scarring to this person's face. Okay. And the judge insisted on sending out the offender to jail, [00:39:24] where we know that person is going to be subjected to the traumas of incarceration, right?
For what purpose, right? Which sentencing purposes serve there, right? What's, what are we doing? Like, what are we doing? So that's a big piece.
The other one I wanted to call it, if it's okay, it's a little off topic, but since we, I know you have a lot of judges listening to your podcast and, and I wish more would. [00:39:44] There are, there are some judges in Canada and there are some courts around the world that have completely jettisoned the idea of deterrence, and the reason is because the evidence does not support it at all. That needs to happen, right? So both general and specific deterrence are, have been pretty much universally found to be not true.
[00:39:59] Uh, you, meaning that if you increase the sentence to this one offender, it's not likely to deter them or anyone else for that matter. So that needs to be completely jettisoned. So we're left with basically why would you send someone to jail? It's really like denunciation. We're going to denounce your behavior.
[00:40:15] First of all, there's other ways to denounce behavior and also the idea that it's more denounced if it's six years instead of three years, is that the game we were willing to play? I mean, if we look globally, there's many countries around the world. You know, I think of continental Europe, which don't even have life imprisonment.
[00:40:32] I mean, murders are convicted at much lower sentences than that. So is that really all we're working with there? Is that really about denunciation. That starts to look a little bit like revenge really? And then, and then something like separating offenders from society. Well, you're actually not necessarily any safer, right?
[00:40:48] There's people who still run organized crime networks from prison. I mean, it's not a, you know—they make big bucks, um, moving drugs in and out of all kinds of institutions. They order hits on people from inside prison. They commit violence against the guards, against fellow inmates. So the idea that someone's just like no longer a risk to anyone because they're not in the community isn't necessarily true either.
[00:41:07] So I think we need to reorient the system and go, what's the purpose? Like let's start with that. What are we trying to accomplish? And I think we should start with the idea that we trying to make our society a safer place for everyone. If we start with that, then questions around, well, what tools could do that? Don't start with what we have. I don't know if you ever do any spring cleaning or anything But one of the only ways that I found that works and one of the elders that we interviewed used the example, too. She said look when I do my spring cleaning.
[00:41:36] I don't take my junk drawer. Do you have a junk drawer Myrna? I've got one. Do you have one? Can I admit to that? Okay, good. I've got a junk drawer. It's getting bigger and bigger every day. You don't clean out your junk drawer by taking one item out and going, ‘Oh, do I need this or not?’ And throw it aside.
[00:41:49] If you don't do that you're going to still have a junk drawer. You take the whole thing out. She said, and this is what we do. We dump it all out and you clean the drawer. She talked about smudging. And then, she will take items that she really wants to keep and put them back in there, but they'll be organized.
[00:42:05] Y And I'm pretty sure Mary Kondo talks about this too, right? So when we look at redesigning a system and we're thinking of a system, don't we need to at least have some space right now because we don't have this to do that imagining. And what I propose in the book is one idea. It's one vision for a new approach.
[00:42:22] I would love to hear people go, I don't agree with that. Let's hear yours. Like, let's start a national conversation about how we can do–How we can better address harm in our society, and that's how we'd frame it. And that's really what I hope Indictment does is, is starts that discussion of saying we don't have to accept things the way they always were.
[00:42:39] That's true of any major social movement of all time, you know?
[00:42:44] Myrna McCallum: Absolutely. You know, you commented earlier about even with an increase of indigenous judges in this country, it's not doing what we need it to do. We're not shifting where we need to shift and you just become an active player in a really horrible game that is destroying people.
[00:43:03] Benjamin Perrin: You almost have a role, you have a role you're playing and it's not the role you might have wanted to play and you end up in this position someone like Harold talked about, you know, he wanted to be a prosecutor because he wanted to protect people in his community who were being victimized. That's a noble, noble goal.
[00:43:20] And then he saw that the people who he was having sent to prison were actually also people who'd been traumatized. And that's what the research shows. If you're in prison, you're more likely to have been first a victim. Some of the stats are mind blowing on the overlap.
[00:43:34] Myrna McCallum: Yeah, the victim offender overlap stats are mind blowing.
[00:43:37] Dan Jones talks a lot about that. And I remember Harold talking about how it occurred to him one day that his career had just become about just sending his own people to jail, and that just didn't feel good for him, and I remember having that come-to-Jesus moment myself, like, I absolutely, this is not why I went to law school.
[00:43:57] So, yeah, I think a lot of people who are either serving as judges or lawyers who are indigenous or racialized, even, I guess, everybody, even the white folks, like, we need to ask ourselves why? Why are we in this job? Why are we upholding the system? And, is this a system that we actually want to uphold?
[00:44:19] I think a lot of folks don't even ask that question, Ben. Like we just inherit systems and we never question it. We never pause to go, ‘Oh, but why are we doing it this way? And is it actually working? And is there another way? Is there a better way?’ I mean, that was how I learned to do Indian residential school hearings differently was I paused one day and I was like, wait a second.
[00:44:43] Why? And maybe I could do it differently. And then when I decided to do it differently, people had a completely different experience and not just the survivors or claimants. The lawyers. I had a different experience because we haven't also, man, there's just not enough time to cover all these things, but one of the upshots of also doing things differently is that the psychological impact for the people who work in the systems is also going to be transformed because right now people are being traumatized and vicariously traumatized at rates that I don't think is accurately reflected in the recent research and the studies that have been done on our mental health and wellness because nobody's talking about it for fear of, I don't know, the stigmatizing fears and also fear of being, having your competency called into question.
[00:45:36] But, there's benefit for lawyers and judges who choose to adopt a little compassion and a little empathy and a little patience and a commitment to understand trauma.
Benjamin Perrin: Yeah, I don't know how we can keep going like this. [00:45:49]And I think there's a reason for those, you know, the reasons for those higher rates of, of mental health issues and substance use in the, in the legal profession, it's, it is absolutely linked to things like the workload and the trauma.
[00:46:01] Right. We know that these are, they're called, they're maladaptive coping mechanisms or strategies that people are using just to get through. Getting back to what you're talking about a minute ago, about sort of the individual judge or lawyer, I think an interesting exercise, in addition to thinking about your role would be, you know, think about something like what's within—and I've done this myself.
[00:46:18] I'll explain in a second how I did it—what's within your scope of discretion. What's within your Look at what your scope of discretion is. There's things you have to do. There's things you can't do, but within that, there's a lot of room for us to be bold, to take some risks and to be courageous and ultimately be able to, you know, quite frankly, live with ourselves at the end of the day, because we're all going to look back at some point on our legal careers and say, did I do more harm than good?
[00:46:44] You know, we don't have a Hippocratic Oath, like the medical profession. We should, we don't have it. We really should.
Myrna McCallum: We really should. And I talk about that one all the time.
Benjamin Perrin: I think I borrowed that from you.
Myrna McCallum: I really love that we had this conversation. I wish we had more time, Ben. I think once your book launches, I'm going to have to have you back for a part two.
[00:47:03] Benjamin Perrin: I would love that.
Myrna McCallum: Because there's, there's still so much to talk about. But, tell us, when does the podcast launch and when does the book come out and where can people buy the book?
[00:47:12] Benjamin Perrin: Oh, great. So all the information is on my website. I put it all super easy. So it's just my name, benjaminperrin.ca. The book comes out October 2nd and it's from University of Toronto Press. Really love what they've done with it. And it's not being sold at an academic price. It's like regular hardcover prices. All the author royalties are being donated to two organizations that are profiled in the book.
[00:47:35] One is called Straight Up, which helps street gangs in Saskatchewan, Saskatchewan, has a great, amazing record and you can hear their story in the book and that program in Ottawa, I mentioned Restorative Justice Initiative. So they're getting all the author proceeds. So that book comes out October 2nd, Indictment: the Criminal Justice System on Trial.
[00:47:54] The podcast is coming out a few weeks before, so it'd actually be out September 12th. So maybe even before people are hearing this, it'll be out and that's available on all the major podcasting platforms. And you can either go to my website. Or go to indictment.simplecast.ca and find all the links. And, yeah, we're also doing a big national speaking tour along with some local organizations and folks that are impacted by some of these issues.
[00:48:21] And so that's going to run from October 3rd all the way to the end of November, 2023. And so if people are listening during that period, come here for yourself and I'd love to meet you. So, yeah, thanks so much for this. It's been a real pleasure though.
[00:48:34] Myrna McCallum: For sure, Ben. And I want to say before you go that Ben, you are going to be delivering a keynote at a conference I'm putting together called Justice's Trauma, which I think is a long overdue big conversation we all have to have.
[00:48:47] That conference is running here in Vancouver, April 3rd to 5th. Ben is going to be featured as a keynote. Dr. Gabor Mate is going to be featured as a keynote. I think we're going to be doing a bit of a panel that day as well and Supreme Court of Canada Justice Michelle O'Bonsawin, our first ever Indigenous person appointed to the Supreme Court of Canada.
[00:49:15] She is also going to be there presenting, doing a keynote. So I'm really excited about this event. And I hope that for people listening, registration will open up in October. I'm excited.
[00:49:29] Benjamin Perrin: Me too. I can't believe it's taken till that'll be 2024 to have a conference on this, but, you know, kudos to you and your leadership on this.
[00:49:38] And thank you for educating me, you know, over the years. This podcast is like a graduate course in trauma and criminal, the criminal legal system. There you go. There's a soundbite for you. You can use that.
[00:49:50] Myrna McCallum: Right on. Thanks, Ben. Thank you. Thanks for being here.
INTERVIEW OUTRO
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HOST: Thanks to my guest Benjamin Perrin, author of Indictment: The Criminal Justice System on Trial. That book is going to be available as of October 3rd, plus he's going on tour across Canada, folks. So if you want to hear more, you want to go and meet him, you want to get a book signed by him, go and check out Indictment. You can just Google it and it'll come up and remember Ben's also the host of a new podcast by the same name You can find it at indictment.simplecast.com or wherever you get your podcasts.
Now if you're a police officer, a judge, a probation officer, a lawyer, you gotta read this book. Please read this book. And if you're not one of those but you have one of those in your life, you got to gift this book. I mean it's gonna change the system.
[00:50:48] It has that potential. I believe it.
Well, that's it for the trauma -informed lawyer podcast this week. Thanks for sharing this, this podcast, this episode with people in your network and for rating it on whatever podcast platform you happen to use. And I want to say If you're on Apple Podcasts, please leave me a five star rating.
[00:51:09] I've got about 155 five star ratings so far and I have heard the more five star ratings they get, the more likely they'll promote my podcast. So please, if you haven't yet, give me a five star rating.
Thanks also to Cited Media for their production support. This episode was recorded on the ancestral, traditional, and unceded territory of the Tsleil-Waututh Nation.
Until next time! take care.
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