Reparations

by Stephen Kimber

  “During the 1960s, as Your Honour well knows”—Uhuru gave the judge a you-know-where-I’m-coming-from-here look; Moira was sure of it this time—“the City of Halifax connived to confiscate the homes and lands of the people of Africville. It destroyed their community. If the same thing were to happen today, it would almost certainly be challenged under Canada’s Charter of Rights and Freedoms. There was no such Charter then.

  “The City of Halifax stole their heritage and, for more than thirty years, it has refused to compensate the former residents for their loss, let alone acknowledge the wrong done to them.

  “I’m not the only one to describe what happened to the citizens of Africville as state-sanctioned theft. The United Nations itself recently looked into this matter and last month issued a report calling on Canada to pay reparations for these crimes against the people of Africville, against humanity. So we are not reaching when we talk about theft, or about reparations.

  “J. J. Howe is a child of Africville. His parents were both born in Africville. As teenagers in the sixties, they were among those whose families were forcibly uprooted from their homes and dumped in Maynard Square. J. J. Howe came of age in that soulless concrete jungle of public housing. He saw its deleterious effects on his mother and father, who both became drug addicts and petty criminals. He saw its impact on his relatives, friends and other former residents of Africville. And he couldn’t help but see the City’s indifference to the plight of the residents and to their legitimate claims for compensation.

  “He saw all of that and . . . he acted.” Uhuru looked back at his client, smiled. J. J. smiled back, his face smug with self-satisfaction. “James Joseph—J. J.—Howe acted in good conscience to right a terrible wrong,” Uhuru said.

  After a pause to allow his words to burrow into the heads of the spectators, Uhuru resumed. “Your Honour, we are prepared to call expert witnesses who will tell you all about the history of Africville and the sense of pride and community that existed there for more than one hundred years before the City of Halifax ripped apart the residents’ homes and lives.

  “If Your Honour permits, we will adduce evidence—deeds, documents, eyewitnesses, legal experts—to show how the City stole the land out from under the people who called it home, how the City paid the residents much less than their land was worth, and how it used blackmail and the threat of expropriation to achieve its nefarious ends.

  “We will also tell you the very human story of what happened to the people whose community was destroyed. And to their children and grandchildren. You will hear from witnesses who will establish beyond doubt the human cost of this officially sanctioned theft of the soul of a community.

  “And, finally, we will offer evidence demonstrating beyond any doubt the thirty years of official indifference, even hostility, that has greeted the efforts of the former residents to win compensation for their losses.”

  Uhuru paused, looked over at Gettings. “I can see my friend at the Crown table is getting impatient. What does any of this have to do with the case before us? he wants to know.

  “My answer is: everything. We believe that understanding this history and background is critical to understanding the true nature of what my client did and, ultimately, enabling a jury to determine the guilt or innocence of my client.

  “Can the courts really consider what Justice Hill in Ontario recently referred to as ‘social factors’ in criminal cases? In the case before Justice Hill, two women had been found guilty of acting as drug mules, bringing cocaine into this country from Jamaica. Both women were black single mothers of three children. In his decision, the judge reiterated an earlier court decision that, when sentencing offenders, judges are ‘entitled to take judicial notice of the history of discrimination faced by disadvantaged groups in society.’ Your Honour, the defence takes the position, and we shall argue, that those principles should be taken into account during trial, too.

  “There is precedent for this right here in Nova Scotia. Your Honour will recall the case, I’m sure. In 1994, a Family Court judge named Corinne Sparks—the first African-Nova Scotian woman appointed to the bench in this province, I might add—acquitted a black teenager accused of assaulting a white police officer. In doing so, Her Honour brought her own experience as a black person to consideration of the evidence. As she explained it to the Crown: ‘I’m not saying that the police officer overreacted, but certainly police officers do overreact, particularly when they’re dealing with non-white groups.’

  “Her decision was overturned by the Nova Scotia courts, which claimed her statement showed a bias against the police officer. The issue went to the Supreme Court of Canada. On September 26, 1997, the majority concluded that Judge Sparks was simply engaging in a process of ‘contextualized judging,’ which was entirely proper and conducive to a fair and just resolution of the case before her.

  “What we are asking this court today is to allow us to provide the jurors in this case with the context to render a fair and just verdict. Thank you.”

  Uhuru sat down. The courtroom was quiet, as if everyone was trying to come to terms with the argument Uhuru had just made. Shondelle reached over and put her hand on his. Montague nodded approvingly.

  “A fifteen-minute recess,” Justice Justice announced into the void. “Then Mr. . . . Gettings . . . will have his say.”

  “All rise.”

  Moira looked at her watch. This morning’s session had started thirty minutes later than scheduled and now, less than an hour into it, the judge was calling a break. Moira watched as Mr. Justice Justice hesitatingly made his way down the steps and out the door. Could he really last to the end of the trial? she wondered. She hoped so. For her sake as well as his.

  By the time court resumed, more than half an hour after the announced fifteen-minute break, many of the private television reporters and their camera operators had left. Their bosses had decided there must be better things for them to do than listen to evidence they couldn’t report. Moira had avoided a similar fate only because she hadn’t called Michelle to tell her about the ban. Perhaps during the lunch break?

  Now it was Henry Gettings’s turn. While his prematurely white hair and horn-rimmed half-glasses gave him lawyerly gravitas, his boyish, unlined face and infectious smile offered a humanizing counterpoint.

  “Your Honour,” he began, with a bow in the direction of the Judge, “my friend here would like you to believe this case is something it’s not. Despite everything that’s been said inside this courtroom this morning and everything that’s been in the press in the days leading up to this hearing, this is a routine, run-of-the-mill, open-and-shut criminal case. James Joseph Howe, who was in a position of public trust, took money that did not belong to him. He breached that trust. He stole money. There is no excuse for that. He is guilty. And he must pay a price for his criminal acts.

  “A few moments ago, my friend offered this court an entertaining, if not completely illuminating—and certainly not complete—lecture on criminal liability in which he pointed out, correctly, that one of the elements the court must satisfy in determining criminal liability is that there is no legally accepted defence for the acts in question.

  “Let me emphasize, as my friend did not: legally accepted. ‘The Devil made me do it,’ is not a legally accepted defence.” There were titters in the audience. Score one for the prosecution. “In my respectful submission, Your Honour, that is exactly what the defence is asking you to accept here today. Mr. Melesse tells a good tale, and it is easy to get caught up in the morality of his little play.

  “As an individual, I confess I found myself agreeing with Mr. Melesse that this city may very well have acted unfairly when it took that land back in the late sixties.” Was Gettings rehearsing for his political future? “But that was . . . what? Thirty-five years ago? Almost forty? Certainly before this defendant was born. That’s the problem—or should I say, one of the problems—with my fri
end’s arguments. How can something that happened before the defendant was even born be used now to justify a criminal act? The answer is: it can’t.

  “There are legitimate legal forums where the issue of the Africville relocation, even reparations, can be debated. As I understand it,” Gettings said, looking over at Shondelle, “there is already a civil suit dealing with this very matter working its way through the judicial system. That is the proper forum for this discussion.

  “The defence says it will produce witnesses who can describe for this court the deleterious effects the relocation has had on various individuals and their children and their children’s children. I’m sure they can. Should the Crown then counter those witnesses by calling its own witnesses—even my friend himself, perhaps—whose lives and careers can, equally, be taken out of context to demonstrate the beneficial effects of relocation? I am not being totally disingenuous here, Your Honour. My point is that, while it would be easy enough for Mr. Melesse and I to bring forward duelling witnesses to try to score debating points, that, in the end would prove nothing in terms of the case before you. In fact, such an exercise is irrelevant to the real matter at hand. And that matter is this. Is James Joseph Howe guilty of the charges against him? That . . . and only that . . . is the question we must answer at trial.

  “I do take my friend’s point—or at least part of his point—in reference to the drug courier case he referred to in his written submission and, again, here today. In that case the judge noted his right to take judicial notice of the history of discrimination against a particular group at the time of sentencing. Mr. Melesse talked about the case, but he glossed over that important qualification. At the time of sentencing. If there really are mitigating circumstances, they should be raised at the appropriate time . . . after a conviction and before sentencing.

  “My friend was also less than fully forthcoming in his presentation of some of the other cases he mentioned this morning. It is worth noting, for example, that higher courts overturned the Morgentaler acquittals, once even substituting a guilty verdict for the jury’s not guilty.

  “The goal of the defence in those cases was different too. Dr. Morgentaler set out to change what he considered a bad law. He publicly flouted the Criminal Code of the day, practically inviting the police to charge him so he could challenge the law’s legitimacy, so he could have his day in court. James Joseph Howe, on the other hand, got caught fudging the books. He got caught. Mr. Melesse’s client doesn’t want to change a bad law; he just wants the court to say that the law shouldn’t apply to him.

  “The final outcome of the Stafford case—not the interim ending my friend chose to focus on—may be more germane to the case before this court today. In that case, involving the woman who shot her husband, the Nova Scotia Court of Appeal threw out the jury’s verdict and ordered a new trial. Before that new trial could take place, however, Ms. Stafford agreed to plead guilty to manslaughter. At that point, the judge took note of the acknowledged circumstances of her abuse and sentenced her to serve just six months in jail.

  “So, Your Honour, it is my respectful submission that, if there is a time to deal with these issues, sentencing is the appropriate point in the legal process for the court to do so. I would ask Your Honour to reject the defence motion and instruct Mr. Melesse to save his documents and his witnesses for that more appropriate moment.”

  Justice Justice did not. Having already read their written submissions and listened to their oral arguments, the Judge didn’t even retire to his chambers to consider his decision.

  “Thank you, gentlemen,” he said, his words coming in exhausting spurts. “You both make . . . excellent points. But I am more . . . persuaded . . . by Mr. Melesse. Defence may make arguments and call . . . witnesses . . . at trial based on the . . . claim of necessity. We will . . . begin jury . . . selection at . . . nine-thirty Monday . . . morning. We are . . . adjourned . . . till . . . then.”

  “All rise.”

  That was it? thought Moira. No learned citations of case law, no carefully weighed on-the-one-hand this, on-the-other-hand that balancing of legal principles? Just a gasped I-am-more-persuaded . . . ?

  Moira looked over at the Talking Heads, who were already deep in conference with their producer. Probably trying to explain how they both could have been so wrong about the outcome of today’s hearing. She made a mental note to tune in tonight to see how they would explain it away. Except, of course, they couldn’t. By banning publication of the evidence, Justice Justice had effectively saved the Talking Heads from themselves. But not Moira from Michelle. She put her notebook in her purse, took out her cellphone and dialled her City Editor. She had some explaining to do too.

  It was so much easier when he let the machine do all the hard work. Ward Justice slumped back in the high-backed leather chair he’d had his secretary position strategically just inside the door to his office, held the plastic mask to his face with his right hand and felt the life-giving oxygen fill what was left of his lungs.

  He knew now he should have taken the tank with him into the courtroom. Why hadn’t he? Vanity? Fear that people might realize just how sick he was? How could he have thought they wouldn’t notice his condition, mask or no mask? he wondered now. He’d imagined it would be easier, that sitting up there on the bench looking down on the courtroom, the words would magically flow from his lips. The words! In his left hand, he still clutched the dozen sheets of foolscap he’d filled last night with so many fine but now unspoken words. He’d carefully weighed the lawyers’ written arguments and counter-arguments, consulted cases, honed his phrases, crafted his decision, leaving room here and there to insert additional comments as needed, based on anything new the Crown or defence might add during oral arguments. He’d planned to read his decision aloud at the conclusion of this morning’s hearing, but quickly realized after he made it to the bench this morning he would not have the strength or breath for such an exertion.

  Why hadn’t he just said thank you very much, he would consider the arguments and render a written decision in the fullness of time? Perhaps it was because he knew his days were limited, and he didn’t want to waste any of them. Or perhaps, more likely, it was because he wasn’t nearly as confident in his judicial reasoning as he wished he was. He knew what he wanted to conclude; he just couldn’t find a solid legal basis for doing so. Now, it would be up to an appeal court—if it came to that—to interpret his cryptic decision. Perhaps they would find better reasons than he to uphold his judgment. Not that it would matter. Ward would be dead. He would have done his duty. Ray would have had the chance to make his case for J. J. Howe—and for Africville—in a public forum. Now it was up to Uhuru.

  The trial itself had almost immediately settled into the predictable rhythms and routines that Moira—with more fondness now than in the days when she’d been the beat reporter—associated with courts. During a trial, the courtroom became a cocoon into which the larger world did not intrude. Moira could not have told you what was happening in the war in Iraq, for example, or which teams were playing for the Stanley Cup, or whether the provincial government was really going to rescind the 10 percent income tax cut it had announced last year. And she didn’t care. With the exception of the hour or so she spent playing with or reading to little Patrick each night, her life centred around this courtroom and this case.

  The trial itself played out as a series of dramatic set pieces with everyone—Crown, defence, judge, jury, court clerk, sheriff’s deputies, reporters, spectators—performing their specific assigned roles within the larger play. But as soon as the Judge called a recess, it was if they really were actors on a rehearsal break who could slip out of their characters and joke and gossip with their fellow actors. And there were plenty of such recesses in this trial. Perhaps because of his health, Mr. Justice Justice had scheduled two fifteen-minute breaks during the mornings and two more in the afternoons (in truth, each recess usually dragged on for half an hou
r).

  During these breaks, Moira loved to eavesdrop on the conversations around her. The court clerk flirted with a sheriff’s deputy; this morning, Moira had overheard them making a dinner date. The deputy, Moira knew, was married. In another corner, J. J. and the Crown’s forensic auditor, who’d testified against him on the second day of the trial, discussed the relative merits of two accounting software packages. In the spectator section, Shondelle held court with a group of a half-dozen black female law students who’d apparently decided to make the trial some sort of class project—and Shondelle their role model. Uhuru and Calvin Johnstone stood out in the hallway sipping coffee and swapping reminiscences of their childhoods in Africville.

  No one talked about the trial, as if by unspoken agreement. Not that there’d been much worth talking about. Except, of course, for that brief, puzzling moment during jury selection when the defence had used one of its peremptory challenges to dismiss the only black person who had been selected from the jury pool. After a whispered discussion among the three defence lawyers, Uhuru stood up to ask the Judge to excuse the man. Even the Judge seemed surprised. But he did as he was asked. “The Court thanks . . . you for coming here . . . this morning. You are free . . . to go.”

  The Talking Heads could offer no logical explanation as to why the defence would not want to have a black man on the jury, but that didn’t stop them from filling up that night’s episode talking about it. Which turned out to be their best show all week.

  The trial’s first three days, in fact, had been boring. Gettings tediously laid out the Crown’s case against J. J. Howe. Even though Uhuru had made it clear it was unnecessary—“the defence is prepared to stipulate to those facts,” he’d said—Gettings insisted on establishing the details of the crime “for the sake of the record.” Moira thought it more likely Gettings wanted to make sure he had his own moment in the media spotlight. He certainly did his best to prolong it. He used up most of a morning leading the City’s internal auditor through an explanation of the procedures the City employed to monitor spending and flag possible cases of fraud or misappropriation before even arriving at the specifics of J. J.’s transgression. Later, he led the police detective in charge of the case through an equally interminable dissection of the techniques he’d used and how they’d led him, inevitably, inexorably, to the conclusion that J. J. had done the dirty deed.