In this episode, Harold Johnson and I discuss his inspiration and motivation for writing Peace and Good Order. Our conversation is real, honest and offers an Indigenous assessment of the impacts that the current criminal justice system has on Indigenous communities, particularly in northern Saskatchewan. We cover subjects including empathy, racism, trauma, prison, redemption, policing, law school and we explore what justice means and Harold argues that in order for justice to be just it must be given back to the communities.
TW: There is some discussion about exposure to graphic evidence and prosecuting crimes involving sexual violence.
Episode 9: “The Case for Indigenous Justice in Canada: an interview with Harold R. Johnson” Published: August 22, 2020
Episode Summary: In this episode, Harold Johnson and I discuss his inspiration and motivation for writing Peace and Good Order. Our conversation is real, honest and offers an Indigenous assessment of the impacts that the current criminal justice system has on Indigenous communities, particularly in northern Saskatchewan. We cover subjects including empathy, racism, trauma, prison, redemption, policing, law school and we explore what justice means and Harold argues that in order for justice to be just it must be given back to the communities.
Episode Notes: TW: There is some discussion about exposure to graphic evidence and prosecuting crimes involving sexual violence.
Myrna: I’m Myrna McCallum, Métis-Cree lawyer and passionate promoter of trauma-informed lawyering. Welcome to my new podcast, The Trauma-Informed Lawyer, brought to you in partnership with the Canadian Bar Association.
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 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. This podcast comes to you from the traditional, unceded territories of the Sḵwx̱wú7mesh [Squamish], səl̓ilwətaɁɬ [Tsleil-Waututh], and xʷməθkʷəy̓əm [Musqueam] people.
Welcome back to the trauma-informed lawyer podcast. Before I delve into this next episode, I want to express thanks and gratitude to those of you who sent me messages of support after listening to the previous episode. It really means a lot so keep your feedback coming. I also have to give a shout out to my daughter Alicia Hrbachek who owns and operates Ally's Cake Creeations in Saskatoon. If any of my listeners are in the Saskatoon area, check her out online and order some yummy treats from her. You won't be disappointed, trust me. I also have to plug my upcoming course via CLEBC on trauma-informed lawyering which takes place on October 7th and 8th. It's only in the mornings and there's a break so it's completely humane. It's for everyone, not just for lawyers, so if you're a law student, or a legal educator, or a judge, or a social justice advocate, or a workplace investigator, or a mediator, a victim services support worker—it's for so many people. Come and check it out, you will be so happy that you did and you can attend from wherever you are, it's not just for British Columbians or even Canadians, and as I said, it's over Zoom so you can interact from the comfort of your sofa so check it out; go to cle.bc.ca.
Okay, so today's conversation is with Harold Johnson. Harold Johnson was born and raised in northern Saskatchewan. He has a Master of Laws degree from Harvard University and most recently worked as a Crown prosecutor. Harold is the author of five works of fiction, several of which are set in northern Saskatchewan against a background of traditional Cree mythology. Most recently, Harold published Peace and Good Order: The Case for Indigenous Justice in Canada. His book was inspired by the tragic murders of Colten Boushie and Tina Fontaine. For those of you who are maybe outside of Western Canada or outside of Canada; in 2014, Tina Fontaine, a 15-year-old Indigenous girl from northern Manitoba went missing and her body was pulled from the Red River in Winnipeg, Manitoba. The white man accused of killing her was later acquitted of 2nd degree murder. Then in 2016, a 22-year-old Cree man named Colten Boushie was shot and killed by a white farmer in Saskatchewan. Colten's killer was ultimately acquitted of 2nd degree murder as well, in spite of his admission that he shot the young Indigenous man. After reading Harold’s book Peace and Good Order, I could clearly see how Indigenous lawyers and lawyers generally are subject to vicarious trauma through their work as litigators—specifically in the context of criminal cases. I hope you enjoy today's conversation. I also have to say, when Harold and I had our conversation over Zoom, he was outside and I was outside, so the audio quality may not be completely awesome, so please just forgive that when it comes up. So, let’s begin.
Myrna: Hi Harold.
Harold: Good morning!
Myrna: Thanks for joining me today to chat about your book Peace and Good Order: The Case for Indigenous Justice in Canada. I read it, it resonated with a lot of my experiences as a former Crown prosecutor in Saskatchewan, as well as my experiences generally working with Indigenous people, serving Indigenous communities. For those who are listening who maybe don't know a lot about Colten Boushie or Tina Fontaine, can you just tell me a little bit about what it was about those young people that compelled you to write this book?
Harold: I knew the justice system and I know the racist place that they live; I knew Saskatchewan's reaction. When the Colten Boushie-Gerald Stanley decision came down, I shut off social media, I turned off my phone, I wouldn't turn the radio on, I wanted nothing to do with it 'cause I knew the hate that predates this province. So I wanted to shelter myself from it. Within a day, I was driving south, heading to a ceremony at Sweetgrass. On the way there as we're getting near Battleford, my wife says, “Pull over, but not in a farmyard”, and I realized that she was afraid of farmers, and if we hear Gerald Stanley, the farmers are afraid of Aboriginal people, so there’s this fear of each other. When I got back from that trip, it was within days of the anniversary of our signing of and adhesion to Treaty 6, which occurred about 200 metres down the shore from where I am right now. I set up—a friend of mine helped—we started an annual fish derby to celebrate the adhesion to Treaty 6, and we invite Aboriginal people and settlers to come and just spend a day fishing. 'Cause it's something we all enjoy, and it's something we can do at that time. We can celebrate our Treaty. We have to recognize that it isn't an Aboriginal treaty, it's a treaty between two peoples, and white people are treaty people as well, so invite them out and get them working together. That got me thinking about justice, and then the rest of writing Peace and Good Order was just all of that stuff that I put away for years, and kept quiet about, and just did my job—all of that stuff needed to be told and it came out in writing Peace and Good Order. McClelland & Stewart, the publishers, commissioned that work; they asked me to write it. The first draft took a month and a half; you write a book in a month-and-a-half, you're just pouring your soul onto the page. You're not worrying about grammar, or spelling, or how cohesive the story is, you just purge yourself of it and put it out there. So that's how Peace and Good Order came to be written.
Myrna: I noticed this one line that really caught my attention; you said, “This book is my act of taking responsibility for what I did, for my actions and inactions”. Can you tell me a little bit more about that?
Harold: I participated in the phenomenon of filling Canadian jails with Aboriginal people—I helped to do that. And even after I understood that I wasn't making things better, that I was making things worse, I continued at that job. I continued to do it even though I knew I was destroying our communities by doing it, until I couldn't do it anymore and we started the Northern Alcohol Strategy. Working on the Northern Alcohol Strategy, actually working in and for communities to take on the biggest problem that we have, or the biggest symptom of the problems that we have; we solve alcohol, we solve a whole bunch of other things at the same time. For the last four-and-a-half years, I felt like I was doing something real, that I was making a difference that I never made in justice.
Myrna: What did you hope the book Peace and Good Order might bring about —like the creation of it— in your efforts to take responsibility?
Harold: I want to get people thinking. We take the Criminal Code sanction of deterrence, or the principle of deterrence, as though it was natural, normal, and necessary. Most people don't even question it. It's something that people believe in—it's a belief. All of the evidence says that deterrence doesn't work, that deterrence, or attempt at deterrence, actually makes things worse. That was my purpose; let's rethink the story that we tell ourselves about what justice is, that we never question. Let's reimagine them in a way that might work to prevent this continuous tragedy that we see in our communities.
Myrna: So, in your book, you talk about redemption—something you almost, like, never hear. I don't think I've ever heard it in all my years of appearing in courtrooms across Saskatchewan. Redemption; what is it about that concept that you think requires more attention?
Harold: The word comes out of Christianity, but then I have to speak in English. The concept comes from an Aboriginal understanding, an Aboriginal worldview where we were taught to take responsibility for our actions. We're told in traditional ways that you make choices, and you take the consequences of your choices, and you don't know what the consequences of any choice is going to be with any absolute certainty, so be very careful with the choices that you make. And especially when you get into ceremonies, and you start Sun-dancing, and doing Vision Quests, and Sweat Lodge, and carrying a Sacred Pipe—be very careful with what you say, be very careful with what you do 'cause you don't know the consequences.
So that's traditional teaching, and what we see is an interruption of that teaching—primarily through residential school, but also through government policy where Aboriginal peoples’ power of choice was taken away from them. It doesn't take many generations, if you've taken away people's ability to make major life decisions for themselves, that they forget how to make major life decisions for themselves and the government starts making those decisions for them, or their trained in residential schools to not make decisions. We've got this culture of traumatized people who don't have the experience of making choices, of learning about consequences, and taking responsibility for their actions, and they show up in court and typically, it is, “It's not my fault, your honour, she got me mad. It's not my fault, your honor, I come from a disadvantaged home. It's not my fault, your honour. All of the Gladue factors— it's not my fault, your honour, it’s somebody else’s fault, it’s society’s fault, it's the government’s fault”. And you hear them later, you question them on their criminal record; “Well, my lawyer set me up, my lawyer betrayed me, the judge didn't like me”, and we hear those over, and over, and over again in prosecutions. It's so refreshing when you have that person who shows up in court, comes in and says, “Your honour, I messed up. I don't want to go to jail, but I'll do whatever you say because it's my fault”, and you know you're never gonna see that man again. But the person who comes in and makes excuses—you're going to see him over, and over, and over again.
So the idea of redemption, that you take responsibility for your actions, you make your community better. And that is the other aspect of justice that I just really, really struggled with. As a prosecutor, there were a few times when I tried to make arguments on behalf of the community, “Your honour, this decision is going to have an impact on the community, and we should pay attention to what the community wants”. And I'm told by judges that the community’s concerns are no concern of the justice system—the communities are left out of decision making, and the community is the ones who suffered the consequences. So we take somebody who's a bad actor in a community and through the justice system, we send them off to jail, and we make them into worse people. We make them more likely to commit offences than before, and we know we have to let them return to the community. So, by our actions, we are destroying the communities, and we know that, and we don't take into account in our decision-making what’s best for the communities, and that's where the offender lives. That's where the victim is, in the community but we don't consider community and quite often as, in justice, we’re not part of that community. We fly in—we fly in two days a month and hold court, and the decisions that we make are destroying the community, and we don't see it, we just get on the plane and fly back out again. We don't even consider the health of that community that we are destroying.
Myrna: Do you believe, Harold, that through redemption, or commitments to looking at redemption, and those possibilities, that justice can be healing for communities? Maybe not our current concept of justice, but some other form of justice.
Harold: I think we gotta get rid of some words. “Justice” is meaningless. It’s a concept that we made up, it’s a story that we tell ourselves. Justice doesn't exist in nature, so we made up this idea about what justice is, and it's based on Christianity; justice is Judgment Day. And that's—so, straight out of the bible is where we got this idea from, and then we are imposing it, and then we create a justice system, so we emulate Judgment Day, every day, but it really doesn't exist. There's no justice when the man who killed my little brother, a drunk driver, ran over my little brother, when he was sentenced to three years, nothing changed for my family. His Judgment Day didn't correct anything, it didn't make any difference—we still didn't have a brother. His children didn’t have a father, his grandchildren didn’t have a grandpa, and the world was short one person, and justice didn't make any difference. It didn't make any difference to us, it didn't impact on the offender, it didn't make the offender a better person is what I'm trying to say. It impacted him, but not in a good way.
And then he had to get out of the institution and come back to the community—when he come back to the community, I visited with him and interviewed him and he said he wanted to work with schools, to talk to students about drinking and driving. A couple days later, I got a phone call from a school asking me to come and talk to students against drinking and driving and I said, “Sure, as long as I can bring Hillary”, and me and Hillary Cook showed up at the high school in La Ronge and we stood shoulder to shoulder and talked about impaired driving. Hillary talked about what it felt like to wake up in the morning with no memory, seeing damage on his truck and being told he killed somebody, and I talked to the students about what it felt like to lose a brother. In that moment, Hillary began to earn his place back into the community—he was earning redemption. I've stood beside him at presentations to Mothers Against Drunk Driving (MADD) as well. Each time we do it, Hillary earns his place back again. The justice system can't do that, and it's not even interested in doing that. It's not interested in healing. So when you talk about justice as healing, I don't see it.
Myrna: Sending someone to prison doesn't necessarily ensure that somebody is taking accountability; it does nothing to heal relationships and community. It does nothing to help the offender take meaningful responsibility and allow for real transformative change.
Harold: That’s right.
Myrna: In my experience, when I've prosecuted—particularly in northern communities—they tend to come back more hardened, sometimes they are now participating in gang activity, and they bring drugs and violence—I have yet to see one person come out of a system like that a better person.
Harold: Yeah. We teach them jailhouse culture. We've known in justice that the biggest indicator of recidivism is a criminal record that includes incarceration. So, knowing that the act of incarcerating someone makes them more likely to participate in criminal activity, instead of what we tell ourselves—that they're going to go to jail and learn their lesson—what they’re going to jail to learn is how to be a criminal, how to behave criminally. And we've known that in the justice system, we know that sending people to jail makes it more likely they're going to commit an offence. We know that 'cause we use it at sentencing. We use it at bail hearings. We tell the judge, “This guy’s a danger to society because they have jail on their criminal record”, so as prosecutors, we know that jail makes people worse, and yet we continue to argue for it.
Myrna: One of the things that you stated is that law school didn't really teach you a damn thing about the practice of law; you didn't know how to interview a client—most of the stuff that lawyers need to know to practice law is not taught in law school, law school never prepared me for the woman crying in my office. Can you tell me a little bit more about that, and what you think your education should have been to properly prepare you for the practice of law?
Harold: Law school is a hurdle that was put in my way. We have to go back and—my expectations when I went to law school . . . I wasn't planning on being a lawyer. I quit the mines to prove I wasn't stupid. I was being treated like I was stupid because I was a heavy equipment operator and I just got this stubborn streak, so I picked the hardest thing they had at university, and I picked law because it was supposed to be hard, because I was there to prove a point. And then I discovered that law isn’t hard. There's a lot of work, and the pressures that are put on you—the artificial pressures that the structure puts on you are there—but the actual study of law, the actual coursework, wasn't difficult. There was a lot of it, the reading lists were extreme, but the principles were simple. Law is easy, but I thought it was supposed to be hard. And then I get out of law school, I put in an extra year, I go to Harvard and get a Master’s degree, still thinking that there was something involved here, then I get out and I do my articles, and that's when I got angry. I quit mining to go to law school and mining pays better than junior lawyers earn—significantly better than junior lawyers earn. So I'd given up a good salary and my family suffered while I was in law school; suffered because I wasn't bringing in that income that I would have gotten if I'd stayed mining. And after all of that struggle, when I get to my articles, I realized that law school is no help at all— that everything that I need to practice law, I have to learn in this one year of articles. I was very fortunate, I had an excellent principal, I articled under Gerry Morin who went on to be a judge in the Cree court. And he was an excellent principal; I got to do all kinds of things that other articling students would never get a chance to do—I was sent to court on my own to run trials. But it’s this realization that law school hadn’t helped, that it wasted all of that time and all of that money, ‘cause Harvard isn't cheap, and that my family had suffered because of it. I came to realize that law school isn't about teaching us law; law school is about keeping out undesirables. Law school isn't the bridge to the professional, they don't teach you how to be a lawyer, they put all these things in the way to keep you from becoming a lawyer. They make law school really, really tough to keep out Indians, to keep out women, to keep up other undesirables. If you are male, white, middle class; law school’s easy. Like I said, law is not complicated, and if you have no problems in society, if you don't have children, if you don't have your menstrual period, if you had don't live in poverty, if you have childcare, if you have transportation, law school’s easy.
When I was there, they had this program called “Academic Support”— it was offered to Aboriginal students, and I went to that class, and it was held in the evening, and it turned out to be just more work, and I already had a huge workload in first-year law, and this academic support class was just more work that I didn't need. What Aboriginal people needed was reliable daycare, a place to live, some protection from the chaos of our communities that find you even when you move to the city and will move in on you— that's what we needed to get through law school. And law school pretended that we weren't successful in law school, that we were stupid, that we needed additional supports in writing essays, and writing exams, and how to study.
Myrna: What I read in your book, Harold, is that you said, “What native students needed was life support”.
Harold: That's it—life support, not academic support.
Myrna: What do you think your education should have been to prepare you for the practice of law?
Harold: Two years of articles, time spent in the courtroom, time spent interviewing people. I'm talking just criminal law, but the same would be true for family law. Spend time working in a law office, learn how to draft documents, spend time interviewing so that you get to know who the people are. If you’re going to study tax law then read the tax codes and work in a tax office it's easy, you’ll figure it out. But this idea of going to a place that only admits a small number of people and puts barricades in the way and then pretends that it is something special because they're making a simple topic seem complicated, isn't advancing anybody.
Myrna: Why do you think it's important, Harold, to know the people that you're interviewing as opposed to just their legal issue?
Harold: What I found makes a difference in the practice of law is people who give a shit. I've had several experiences where an offender who believed that Harold Johnson gave a shit about him didn't breach the conditions that I put him on, and two experiences for sure were with people with long criminal records, when I took a chance on them and said, “Okay, here's your chance, you said you never got a chance in your life, here's your chance. I'm going to give you a chance this time”, and they wouldn't breach. Then I talked to their probation officer, and the probation officer told me, “They said they didn't want to disappoint Harold Johnson”. So by giving a shit about people, showing them that you care, people respond. When you get probation officers who give a shit, their clients are less likely to re-offend, and this is from a study—I'm sitting out by the lake right now and I don't have reference material beside me— but there was a study done of probation officers, and I can't remember the name of the study or who did it, and it took one group of probation officers and they trained them to care, to basically, to give a shit a little bit about their clients. And then there was a second group of probation officers, the study group who didn't get any training at all. Then two years later, they went and looked at the results of what happened with the clients of these probation officers and they found in the probation officers who received the training, 15% of their clients did not re-offend. Of those probation officers who worked the program to its fullest; 19% of their clients did not re-offend. It's been proven; care a little bit, show the people that you're dealing with that you think they are humans, and they will respond.
Myrna: Empathy is what I'm hearing. Justice participants or justice players need to bring some empathy to the work that they do when they're dealing with offenders in particular, and I guess victims as well. I'm curious about—some of the content in your book shares some of your observations of some judges who maybe did not demonstrate empathy. In your opinion, does that create harm within an individual or within a community?
Harold: Yes. Well, in the book, I talk about judges to do that, but it's everybody; a prosecutor who is being exceptionally mean that day—and we're human beings, we got grouchy days, your own counsel; if your own counsel doesn't believe you, your own counsel treats you like a client instead of as a human, will have an impact on you. And then further down the line, your probation officer; if your probation officer treats you like a number, when incentive do you have to keep the conditions of the order you were placed on? The whole justice system has to learn to treat the participants as human beings, and that leads into another part because we're dealing with trauma all the time. The offender was traumatized by the atrocity that he committed, the victim was traumatized, all of the witnesses—the five children who watched, are all traumatized, and when you start treating them like human beings, and we start feeling some of the things that they feel, that trauma rubs off on you and you take it home—and maybe not the first time, or the second time, but after you get 20 years, it builds up. You’ve been around a while Myrna, you've seen the old lawyers, the old legal aid lawyers who’ve been at it for 20-30 years, the old prosecutors who’ve been in court every day with this stuff; they don't smile as much. They don't laugh as much. Their humor tends to be darker. And that's our profession.
Myrna: It's true, in your book you say you didn't learn about trauma and its impact until after you quit prosecuting, and some of that you're talking about traumas that you've confronted as a lawyer, and the traumas of course in the offender, in the victim, in the community as a whole, and some of it stemming from historical events and oppressions such as Indian residential schools, but I want to ask you a couple of questions around trauma. One is: how do you think the court would be different or lawyers would be different in the way they interact with the public if they were either led by a trauma-informed approach, or just live to the fact that these people are operating from a place of trauma? I know it's a big question, sorry.
Harold: It’s a huge question, I mean, it touches on everything. It touches on how you interview your client when you have them in the office, it will determine how you cross-examine an accused, how you examine a victim on the stand, all changes when you understand trauma, and I really wish that more judges understood it because more victims would be believed. When you understand that an event was so troubling that the person went into fight, flight, or freeze, it explains a bunch of things about the actions of your witness. So he says, “Well she just laid there and didn't do anything, it wasn't a rape, she didn't fight back”, and if you understand trauma, you know that the victim was in a situation where her brain forced her to freeze. She couldn't do anything, she couldn't move, she may as well have been bound and gagged, 'cause that's what the trauma did to her. If we could get judges to understand that, it would change everything that we do.
Myrna: One of the things I discovered, and I wish I had learned about trauma and trauma informed approaches before I ever started working with Indigenous people because I would have been better; I would have been a better lawyer, I would have been a better adjudicator, a better prosecutor, a better listener. One of the things I have learned, especially in my time adjudicating residential school claims, is that a lot of survivors of historical sexual violence would show up in the hearing room with me in a way where they presented as though they were under immediate threat or harm, and I would always be looking around saying, “Are you okay? Is there something going on that I need to be aware of? Is your safety a concern right now? Is there something you want to share with me?”, but there never was.
Harold: Yeah.
Myrna: It seemed to me, my observation was that they seemed to be stuck in a place, like, stuck in a moment, stuck in a reaction, Harold, where whatever threatening experience they had an— and usually in the case of these individuals, it was sexual assault as children—that threat to life, or threat to well-being, or threat to safety, they seem to carry forward 10, 20, 30, 40, 50 years later, still in that place where, you know, their fists are up, they’re ready to fight or flee, but in so many ways, still frozen in fear. And I really love that in your book, you quote a trauma expert Bessel van der Kolk, M.D., and you say that, “People who are reliving a trauma, nothing makes sense to them. They're trapped in a life-or-death situation, a state of paralyzing fear or blind rage”. I mean, I wish so many lawyers and judges would have received that very basic education because it would explain so much in terms of when we look at someone and we assume that they're deceiving us, or their memory is flawed, or there's just too hostile to work with, we would adapt our process to serve them in a way that actually does them less harm.
Harold: When justice understands this, we're going to see change, but I don't think that it's going to happen soon.
Myrna: Unfortunately it seems like everything moves really slowly, particularly in this profession. What is it about trauma that you learned after you left prosecutions?
Harold: People often brag, or, tell me when they're going to go to law school, “I'm going into the profession”, and they wanted me to know, and I always tell them, “When you become a lawyer, don't look at the pictures. The judge has to look at all of those pictures, but you don't. And if you don't have to look at them, don't look. And it's not one photo book, it’s not one autopsy, it's all of them. And we've seen that horror over and over again on your desk—it builds up, and you start carrying it around, and you take it home. And you can't get rid of those images once you've seen them. So my advice to young new lawyers is: if you don't have to look at the pictures, don't look at them.
What I learned about trauma is, looking at the numbers and coming to a realization of what I had been dealing with. . . So as a prosecutor out of La Ronge, I handled 1500 files a year on average. Let’s say 1000 of those files documented a trauma—so that would include the victim, the offender, children—so each of those 1000 files documents multiple traumas, and then multiply my 1000 files a year by 11 prosecutors in northern Saskatchewan, and we have 11,000 files a year each documenting multiple traumas, and there's only 37,000 people here. It doesn't take very long until that population is traumatized multiple times. So that's the breadth of what we were dealing with in with, and we’re flying into these communities re-traumatizing them without understanding what we're doing, how much hurt we’re causing. So, we began to understand trauma and PTSD after the Vietnam War and there’s a case study that sticks in my mind, it’s the case of Tom. Tom was in Vietnam, his platoon was ambushed in a rice paddy, his buddies were killed. About 30 years later when he's talking to a psychologist, that's not what he wants to talk about. He wants to talk about what happened the next day; the next day when he went into a Vietnamese village and he killed unarmed villagers and he raped a woman. The atrocity that he committed traumatized him more than the atrocity committed against him. So we've got people in northern Saskatchewan living in communities of constant trauma who are traumatized by being in a community, or they’re traumatized by being in residential school, or they’re traumatized because their parents and grandparents went to residential school and brought the abuse home, and they commit atrocities and traumatize them. We charge them and bring them into the justice system, and we run them through a preliminary hearing and traumatize them a little bit more, and then if they make it through that, we run them through a trial and really traumatize them, and then when we're done, we send them to jail where we know they're going to be severely traumatized, and then we release them back in the community and ask them if they learned their lesson. So we've got this community of trauma that we’re re-victimizing with every decision that we make in the justice system, and we're just in this bucket of sh*t, stirring it up and it's splashing on us, and it's just making everything worse.
Myrna: In your book, Harold, you also mention how, to your point, that trauma spills over and it impacts other people. You mention the experiences of some police officers who have come to the North to police in these communities.
Harold: Absolutely. Again, numbers. Northern Saskatchewan has 326 RCMP officers for a population of 37,000. Imagine 326 police officers in Lloydminster, in Prince Albert, or Moose Jaw, we are severely over-policed. Every time we ask for help in our communities, we get sent more police. We need more trauma counselors—it’d be nice to have 326 trauma counselors in northern Saskatchewan. We bring these police in, and quite often they’re straight out of Depot. and they come north and experience first-hand, I mean, they're the ones who are taking the photographs that traumatize us sitting in our office, they're the ones who don't just see the blood splatter on the wall, they smell it. So this gets— I know several police officers who are off on stress leave, good people. So you have a traumatized, frightened, excessive police force dealing with a traumatized community, and we expect good things to happen.
Myrna: I’ve heard you talk about the traumas that the courts inflict upon communities when they fly in and in your book, you talk about, like, in some cases, fly in like rock-stars in your helicopter and the court party comes out, and wreaks havoc on the community, and then everyone loads up and leaves. There was something in your book that I thought was really quite profound. I want to quote it for everyone listening because I thought it just captures the harm that the courts can do when they're not even aware of or interested in knowing what they don't know. You say, “Victims who come forward are publicly embarrassed by being forced to testify. . .”, —right now in this context, you’re talking mostly about sexual assault, and how they make poor witnesses— “They are being forced to testify. They are treated as victims instead of as individuals by the prosecution. They are demeaned and ridiculed by defence counsel, and when the courts are done with them, they are tossed out to fend for themselves. If they are damaged by the process, they must find their own therapy. The courts have no further use for them”.
That was so profound and so succinctly stated in terms of what I have heard from victims of sexual violence, and why people would never come forward; they have no confidence in the police, the prosecution, their own.
Harold: That’s it. We wonder why the majority of sex assaults don't get reported. We know that there's far more sex assaults going on than ever get reported to the police, and that's the reason. We're not going to do the victim any good with the justice system.
Myrna: Where would you like to see things go from here. I mean, we're in a pretty terrible place, so maybe any kind of movement is better than doing nothing.
Harold: Do something. Get real, do something. We've been having a discussion about Aboriginal people in the justice system at conferences—and I started attending these when I was in law school, so I’ve been at it for 25 years, almost 30 years— justice conferences, Aboriginal people in the justice system. At the last one I attended, one of the Aboriginal leaders said that—I can't remember who it was, I can see his face, but I can't remember his name. . . Mercredi I think—
Myrna: Ovide Mercredi?
Harold: Ovide Mercredi, you got it. Ovide said he attended his first conference on “Indians and the Justice System” in 1970—it was on a {inaudible} on Lake Winnipeg. So we've been talking about Aboriginal people and the justice system for 50 years and we haven't made any difference. We have these conferences and get together, we eat good, we stay in hotels, and we have interesting conversations, but nothing changes. What does the justice system need to make difference, get real, feel something? Admit that you feel something, learn to give a sh*t about people, maybe then, things will change.
Myrna: What do you say to those out there who—'cause this was me once, this is not me anymore—but what do you say to those young Indigenous lawyers or those maybe middle-aged Indigenous people who want to go to law school because they want to change the system, they want to become prosecutors and change the system, or defence counsel and change the system, or provincial court judges and change the system just by virtue of being Indigenous and bringing an Indigenous lens or their lived experience to these roles. What do you say to those folks?
Harold: I'm a pretty powerful Aboriginal personality and I couldn't make any difference. Friends of mine have become provincial court judges, presided over a Cree court—so court was held in Cree—and in those communities where we held Cree courts, the crime rate didn't go down. We can't prove that the Cree courts had any benefit, any benefit to the community, or to crime in general. We've been tinkering with the justice system at least since 1990; we changed the Criminal Code Section 718.2(e), and after the Code was changed, nothing changed. We continue to lock up Aboriginal people at higher numbers, and the Supreme Court came down with R. v. Gladue, [1999] 1 SCR 688 the Supreme Court told judges, “Hey judges, you have to pay attention to what the legislation says, you have to take into account these circumstances, and they told the judges what circumstances to take into consideration and nothing changed. The incarceration rates continued to go up. The Supreme Court came back in R. v. Ipeelee, 2012 SCC 13 and said, “Hey judges, we fuckin’ well told you in Gladue, now pay attention!”, and they were that blunt—you have to take into account what the legislation said—and nothing changed. The incarceration rate continues to go on, and you can write all the Gladue reports you want and nothing changes—the incarceration rates continue to go up. So all of this tinkering has made no difference—it's continuously getting worse, and now we're locking up more women and children than in any time before. So tinkering with the justice system isn't going to make any difference. Putting Aboriginal people in hasn't made any difference.
Myrna: Where does the difference lie, do you think?
Harold: I think we need people who care. We need people who care about the community, and the only way people will care about the community is if they come from that community; so give justice back to the communities, give it back to the people. The people know. . . the people in the communities know who the bad actors are; they know who the troublemakers are, and they know who just screwed up once, who's a good guy. We don't. We come in and we talk to the offender, and they impress us on how nice they are, and how well they sound, and they speak nice, clear English, and we ease up on them a little bit—and they're the bad actors that the community wants us to get rid of for a little while so the community gets a reprieve from them, and those are the ones we put on conditions. . . And then there's the guy who just lost it— he’s good in the community, he helps get firewood for the Elders, he's always helping people out, and then he just got triggered the wrong way one time and he got really violent and hurt somebody— but it was a one-off. And we come in, and we treat him like the worst, and we insist that he be incarcerated for his evil actions . . . so we don't know what's going on in the community. How can we administer anything like justice if we don't know what's going on, we don't have all of the information?
Myrna: Yeah, I really love that “give justice back to the community”. I think that's probably a good place to leave this interview. Is there anything that you want to add that you'd like our listeners to hear before we end our conversation today, Harold?
Harold: Just bragging a little; Peace and Good Order has been shortlisted for a Shaughnessy Cohen award through Writers’ Trust for Political Writing— it was just announced yesterday.
Myrna: Congratulations, that's wonderful!
Harold: Thanks, Myrna.
Myrna: Well, thank you Harold, for taking time to chat with me. I really appreciate you being so candid.
Harold: Thank you, Myrna.
Myrna: Alright everyone, that is it for me today. I hope you enjoyed my conversation with Harold Johnson, I hope you go check out his book Peace and Good Order: The Case for Indigenous Justice in Canada. It was a pretty real and honest conversation, I would say, and I totally understand Harold’s skepticism of what justice is today. However, I ain't givin’ up. I hope to see trauma-informed education come to our law schools, to our judicial councils, to all of our law firms. We need to become trauma-informed as a profession—not just for clients and those we serve, but for ourselves. So hopefully one day, we see a trauma-informed courtroom. I know I can't wait. . . I hope you want that too. If you have any feedback for me, you can find me on Twitter @LegalTrauma, you can also find me on LinkedIn, and of course on Instagram. I love hearing from you so, yeah, let me know what you thought about today’s episode. Until next time, take care everyone.