Blood in the Water Read online

  There are other legal traditions, however, and some of the most sophisticated and sensitive ones belong to the First Nations. In an Indigenous tradition, Gordie’s intervention could be the kind of event that actually generates law. As the great Anishinaabe legal scholar John Borrows explains, law is “what provides guidance for people in their lives,” and it is found in “the things that deserve respect in the world. So, if you see a good set of behaviours from elders, you would find law emanating from those people, because they are worthy of respect, because they have demonstrated that worthiness through their actions, the way they have talked and they’ve lived.”

  Furthermore, the sources of Indigenous law are not only human.

  “If you see a bird and the way that that bird takes care of its young, and you recognize in that interaction there is something that you should be taking into your life,” says Borrows, “you would find law in that source as well. So, you make a judgment about whether or not what you’re seeing around you is worthy of emulating, is worthy of taking guidance from.”

  Looking back on the whole story of Phillip Boudreau’s death—the background, the confrontation, the long legal journey, the community’s reaction—one can discern two distinct systems of law. One is the formal system of prosecutors and juries and courthouses. The other one, the informal community system, is very like the Indigenous system, rooted in a community’s daily life, its history, and its most cherished values. Gordie Ellis’s intervention belongs to that tradition of what’s sometimes called “vernacular justice.” In the story of Phillip Boudreau, both systems failed—but the failure of the community system has caused its members anguish and self-criticism. The formal system, by contrast, barely even suspects that it failed.

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  The great irony of the Boudreau story is that the formal judicial system constantly scolded the accused for “taking the law into their own hands” without ever recognizing that the accused had repeatedly and unsuccessfully tried to persuade the authorities to deal with Phillip. The root causes of the tragedy include a systemic failure of the legal system itself.

  Go back to May 2013. Phillip Boudreau is on the loose during the lobster season. Phillip is a tragic figure, and I mean that literally. On his small local stage, he is a mini-Macbeth: energetic, clever, and addicted to power, caught up in a prolonged and escalating sequence of criminal acts against innocent people, acts that his community ultimately cannot tolerate. The story moves implacably towards an explosion of violence that results in his death. Phillip has many sympathetic qualities—he’s inventive, funny, courageous, proud—but, as a neighbour said, “not everything between his ears seems to be screwed down right tight,” and it’s hard to believe that his life can end well.

  Now look at the situation from the perspective of the Samson-Landry family. James is industrious, capable, passionate, volatile—and intimidated by the bureaucratic processes that have transformed his traditional world. Carla and Dwayne are the straightest of straight arrows—law-abiding, churchgoing, hardworking parents. They are playing by all the rules and yet they are being bullied, robbed, vandalized, and threatened by an outlaw who totally ignores those rules and often gets away with it.

  The outlaw is particularly hostile to Carla. Nobody quite knows why. Some sources suggest that she’s fishing in territory that Phillip’s brother Gerard either claims or covets, but it seems more personal than that. Other observers believe he’s offended by the fact that she’s a woman and a very successful fisher—and that he can’t intimidate her. She doesn’t fight back, but she won’t back down. He’s already cut a couple dozen of her traps, and now he’s telling Craig Landry at the Corner Bridge store that he’s going to cut her traps along the entire shoreline of Cape Auget. Worst of all, he’s been threatening to burn down her house with her two children in it. The whole situation has become so tense that Carla has actually quit fishing. This season she’s hired Craig to take her place, and she’s staying ashore.

  She has gone to the police and the Fisheries officials to complain, but the only result is that Phillip—who knows she has complained—is even more hostile. The police can’t do very much. To start with, the Isle Madame detachment in Arichat is staffed by three officers, sometimes only two. Often they can’t even answer the phone; incoming calls are patched through to Sydney, 125 kilometres away, and passed on to Arichat the next day. And in any case, how much can the police do about a threat? Listen to Thilmond Landry, who was sitting in his living room one day when the police arrived:

  “The cop says to me, ‘Get away from the window.’ I said, ‘Get away from the window?’ I said, ‘Buddy, I’m home here. What are you talking about?’ He said, ‘We had nine complaints that Phillip went to homes, looking for a gun to shoot you.’ I said, ‘Is that so.’ He said, ‘Yeah.’ ‘Well,’ I said, ‘if Phillip is going to shoot me, you do your job. Go look for him and arrest him.’

  “Do you know what he said? I’m going to tell you what he said. ‘We can’t arrest him before he shoots you.’ You know what I said? ‘What the fuck are you doing here? Get out of my house.’ And I said a lot more than that.”

  The police are understaffed and overloaded, and they can’t mount a twenty-four-hour guard over someone who’s threatened. They can’t arrest Phillip pre-emptively, and if they charge him with uttering threats, he’ll eventually be sentenced to five months, as he was in 2007, or three months (2009), or two months (2010). And then he’ll be out.

  So if Phillip threatens to burn down your house with your kids in it, what remedies does the law provide? Suppose you do get a serious hearing from the police, as a fifty-eight-year-old real estate agent named Susan Butlin did in Tatamagouche, Nova Scotia, on September 14, 2017. She pleaded with the RCMP for protection against her neighbour, Junior Duggan, who had assaulted and raped her. Butlin had told Duggan’s wife about the attack, and now Duggan was threatening to kill her. The Mounties offered to help her seek a peace bond, a court order directing Duggan to keep away from her. Such an order provides no real protection, but it does allow the police to arrest someone like Duggan if he breaches it. But on September 17, before the bond had even been issued, Susan Butlin was dead and Junior Duggan was in custody after a shootout with police.

  The truth is that the law enforcement system offers no effective protection for someone like Susan Butlin—or Carla Samson. None. Aside from a peace bond, all you can do is hope—hope that your tormentor doesn’t act, or that he bungles his attack, or that he’s prevented by some extraneous piece of good fortune like a deadly car accident or a sudden massive heart attack.

  That’s the real world of law enforcement, and the police know it well. They see it every day, most notably with battered wives. If you ask them privately what they recommend, or what they would do if they were seriously threatened themselves, they will tell you that the only real answer is self-defence. That may or may not work; when Susan Butlin died, she was sleeping with a baseball bat at her side.

  Perhaps the most telling story I know on this point comes from the tragedy at Mayerthorpe, Alberta in 2005, when four Mounties were shot dead by James Roszko, who then committed suicide. Linden MacIntyre covered the story for The Fifth Estate, and in the course of his research he interviewed a long-term member of the Mayerthorpe detachment who had had many altercations with Roszko. In addition to being a bully, thief, marijuana grower, and cop hater, Roszko was into violent sexual abuse, and eventually did time for sexual assault.

  He also threatened to harm the Mountie’s family. In response, the Mountie taught his eleven-year-old daughter to use a rifle. Then he put a photo of Roszko on his fridge and told his daughter that if she ever saw that man in the yard, she was to shoot him.

  Who can fault him? But if the only solution even a Mountie can devise is to instruct his child to shoot first, what choices do the rest of us have? The ultimate law is the law of survival, which comes down to this: if you
genuinely believe that someone is going to kill you, kill him first.

  I deeply believe in the importance of an independent and impartial judicial system. In 2003, my wife and I bought a Norwegian-built motorsailer which we named “Magnus” to honour Magnus VI of Norway, who ruled from 1263 to 1280. It was “Magnus the Law-Mender” who revised the laws to embody the idea that crime is an offence against the state, not the individual, and therefore is not a matter for personal vengeance. That idea is really the foundation of modern civil society. But it’s an abstract idea, and sometimes the judicial system—the courts and the prosecutors—seems rather loosely tethered to the concrete, ambiguous realities of daily life. The actors in the courtroom often assume, for instance, that the enforcement system is able to do things that it patently cannot do, like provide real protection to citizens in danger of being murdered.

  The gap between legal concepts and concrete experience leads judges and prosecutors to use glib, sonorous phrases like “taking the law into their own hands” to describe people like the Mayerthorpe Mountie, people who are actually protecting themselves and their families in desperate situations where the law has nothing to offer them. It leads even so intelligent and thoughtful a man as Shane Russell to contend that, in the middle of the uproar in Mackerel Cove, Dwayne Samson had “time to call the police to seek out justice in a proper fashion.”

  Really? Really? Dwayne is at sea, accompanied by a furious man with a rifle, confronting a criminal who has threatened to kill Dwayne and his whole family. He’s furious himself, and deeply frustrated. He has called the authorities numerous times, without avail, to complain about Phillip. If he cries “Stop, boys, stop!” and whips out his cell phone, will they stop? Will a call to the RCMP reach an officer on Isle Madame, or will it be patched through to Sydney? And what will happen then? Do the Mounties have access to a boat, or will everyone simply hold still until an officer comes walking out over the water to handcuff Phillip? In the abstract world of the courtroom, Russell’s suggestion is perfectly reasonable. Out on the water, it is absurd.

  In the same way, the “agreed statements of facts” are heavy on the “agreed” and perhaps not so strong on the “facts.” Dwayne signed off on such an agreement, but—I’m told—only under intense pressure from his lawyers. Since he has never spoken, we have no way of knowing why he objected, but we can speculate. The agreed statement of facts includes Craig Landry’s story that Phillip was gaffed, towed, and tied to an anchor. But the members of the Landry jury did not accept that story beyond a reasonable doubt; if they had, the jury would have had to find James guilty of murder, not manslaughter. So is that story factual? Does Dwayne admit to it? Maybe, maybe not. Again, the statement accepts that James shot Phillip. But the forensic evidence shows that all four bullets hit Midnight Slider at or near the waterline, which suggests that James was aiming to sink the boat and prevent Phillip from speeding away. There were no bullet holes in Phillip’s boots. Phillip didn’t act like a wounded man. In truth, there is no solid evidence that any shot struck him.

  But if the agreed-upon story wasn’t the actual story, why did Dwayne sign it?

  Because it ended his ordeal. By signing it and pleading guilty to manslaughter, he guaranteed himself a moderate sentence and early parole. If he had refused, the Crown could have tried him for murder—and a murder conviction would mean a life sentence, including a minimum of ten years in prison without the possibility of parole. Why risk that? Cut your losses. Take the deal. Do your time and get back to your life.

  For all its faults, the system ultimately delivered a set of judgments about as acceptable as anyone could reasonably expect. Manslaughter convictions with long sentences, combined with generous provisions for parole: some people in the community thought the sentences were too light while others thought them too heavy, which suggests they were just about right.

  Much credit for that goes to the jury, who could well have found James Landry guilty of murder but instead opted for manslaughter. The jury is the humanizing feature of a rigid, self-satisfied criminal justice system that sees people as isolated individuals to be judged and either freed or punished. It is not the court’s role to understand them, to heal wounds, or to resolve conflicts. The system has little capacity for self-criticism; it appraises others, not itself. It didn’t even allow itself to hear the full story behind the actions it was judging, and it certainly didn’t recognize that the legal system’s own shortcomings were a significant contributing factor in the tragedy. At the end of the proceedings nobody looked back to say, How did that process go? Did it meet our highest expectations? Could we have done better?

  No: the gavel comes down, the proceedings are over, the convicted men are packed off to prison. Next!

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  Chief Justice Kennedy’s condemnation of “vigilante justice” and his stress on respect for the rule of law—indeed, the whole structure of Canada’s criminal law—rest on a particular view of the human situation. The chief justice sees the rule of law as “absolutely basically necessary to our society” because “if each of us were able to exercise revenge and retribution as we alone determine our lives, it would be chaos, characterized by fear and brutality. This would be Animal Kingdom.” The implication is that humans are isolated individuals, competing viciously for advantage, restrained only by the majestic impartiality of the law. Take away the police and the courts and you are left with nature, red in tooth and claw—chaos, terror, and slaughter.

  If you change your view of the human situation, however, you also change your concept of law. Indigenous thinkers would remind us that, as humans, we are not only competitive; we are also cooperative. Why don’t I murder my neighbour? Not because I’m terrified of the police, but because my neighbour and I enrich each other’s lives. Humans actually are animals, but deeply social ones, like bees and geese and the other species of great apes. Law is not so much a matter of judging good and evil as it is about the shared understandings that shape our lives together. As John Borrows says, “Law is about how people organize their relationships in patterns.” And those patterns extend to our relationships with the beautiful green world we have inherited. Laws are nourished, Borrows says, “by a grandparent’s teachings, a law professor’s reflections, an animal’s behaviour, an engraved image, and a landscape’s contours.”

  It follows that we all make law as we learn principles of behaviour from the world around us, from our social traditions, and from our own experience. Law-making becomes not the province of an elite group of learned professionals but rather a thoroughly democratic endeavour involving us all. As Borrows says, “We have authority in the way that we do the work of law. Law needs love; it needs respect.” And a proper use of law is “to sustain, to be healed or revitalized.”

  Through their centuries of isolation, the Acadian communities developed their own patterns of organized relationships—in Borrows’s terms, their own laws. You belong to a community; you support it, and it sustains you. You contribute to the “day” that’s held to help a family in distress. You support the cooperative enterprises on which the community depends—producer co-ops, consumer co-ops, credit unions. You derive principles of behaviour from the wise people in your life.

  There is law in Gordie Ellis’s intervention with our sons. There is law in Omer Boudreau’s powerful story about his father giving his firewood to a poor family, a story that still shapes Omer’s thought and behaviour seven decades later. We can find law in the experience of my great friend the late John Boudreau, who told me that when he was ten and his father and uncles took him fishing, they dropped him off in a small dory tied to the fairway buoy. That buoy is in the open Atlantic; it guides ships into the Strait of Canso, and the nearest port due east is Bordeaux. There the boy jigged cod while the men went on to fish farther offshore; they picked him up on the way back in. The lessons that John derived from that had to do with competence, courage, trust, and the obligati
on to help provide for the people who also provide for you. When I think about the man John Boudreau ultimately became—a superb leader, a fine teacher, a devoted community servant, and a delightful companion—I am tempted to collect a fleet of ten-year-old boys and tow them all offshore in dories.

  In such stories, we see law merging into education in a process the Catholic Church calls “formation”—the construction not only of intellectual understanding but also of character and spiritual insight. This is the process by which the community creates the citizens it needs to maintain its own strength and integrity.

  The mainspring of Phillip Boudreau’s story is the character of Phillip himself, which is fundamentally a failure of formation. So what does traditional Acadian law say about an incorrigible person? Even in the recent past, says RCMP Staff Sergeant Daniel Parent, Isle Madame and similar communities had collective methods of dealing with such people without involving the formal justice system.

  “What I found from Isle Madame,” he told me, “is that the real bad one, the real bad apple, the community will chase them out of there. It was more so in the 1970s when I first got there than nowadays. But the community used to clean the area on its own. You don’t go and frig around because you’ll be straightened out right quick. Eventually those that are troublemakers would move out, transfer out to Sydney or to Halifax or whatever, and that would give the place some peace. And the community used to do it on its own.”

  But not today?