The lawyer in me reluctantly agreed with the Crown’s conclusion that accepting Graham’s plea on only two of the charges and not fighting any further on the third was prudent. This would secure immediate convictions and avoid a trial, and there was no guarantee a third conviction would bring about any materially longer sentence for Graham beyond what he would get for the two convictions. Real life isn’t like television, where justice is served up in an hour. Trials are ugly and uncertain. Sexual assault trials can be the ugliest and most uncertain of all.
As a lawyer, I understood the Crown’s acceptance of Graham’s limited plea, but as a victim, I was devastated. After all the pain of coming forward, I had now been dismissed from the process and rendered nothing and nobody simply because he’d decided he wouldn’t plead guilty to my charges. That’s no fault of the Crown, that’s just the way things work. But all lawyers, prosecutors, judges—anybody involved in the legal system—should remember that just because something makes sense as part of the legal system doesn’t mean it actually makes sense. Once you focus only on the legal system, you lose your connection with the real world in which we live.
From that day forward, Graham, his lawyers, and any future lawyers he may ever need, could speak as if I didn’t exist. If any further victims came forward (and they eventually did), it would be as if I had never existed. It would appear as if Graham had admitted to all of his victims.
Once again, Graham had won. I was never going to get anything remotely touching on justice. Not only had he defeated me, but this time he had absolutely destroyed me. Once again, I was nobody.
My guess is that Graham thought he would never hear my name ever again. At one time he would have been absolutely right. But no more. Enough was finally enough, and I was not going to let Graham have this one last victory over me. I advised the Crown that, at the same time as the guilty pleas that Graham had agreed to were announced and entered into court, the Crown was authorized to release my name publicly as the victim whose charges had been stayed.
I may still have been nobody, but I would be anonymous no longer.
TEN
JUSTICE FOR NONE
“This is a complete gong show.”
—(Whispered to me during court proceedings.)
YOU DON’T HAVE to be a lawyer to perfectly understand legal proceedings.
GRAHAM’S SENTENCING HEARING was set for the morning of February 22, 2012. Even though my charges had been stayed, I wasn’t going to miss it.
Nor would I be entirely silent. After my name became public, Roy MacGregor of the Globe and Mail gave me a voice, writing a feature story about me that included the victim impact statement I would have read at the sentencing hearing had I still been a part of the process. My statement may not have been delivered in a court of law, but it was delivered to a far more important audience: the public.
This court appearance, now his second for sexual assault, had always been Graham’s ultimate destiny, the realization of his true self. His defining moment wasn’t ever going to be achieving coaching greatness, hoisting the Stanley Cup, basking in the glory of having revolutionized the sport of hockey, or winning accolades for developing boys into men. No, it was always Graham’s destiny to be in court as a convicted serial child sexual predator facing sentencing, this time with the Honorable Justice Catherine Carlson presiding, in Winnipeg, my hometown, the place where I had grown up, the place where it had all happened.
Me? I was there to bear witness.
ROD PERTSON, AND Brent Littlejohn, friends I’d played hockey with while growing up, had traveled to Winnipeg to support me and make sure I wouldn’t be alone, and I met both Sheldon Kennedy and Todd Holt for the first time. I’d exchanged emails with both and had spoken with both on the phone, but it was my first chance to see them and look into their eyes. Their eyes reminded me of my own, the ones I see whenever I find the courage to not look at away and instead glance at myself in the mirror. They are eyes that are just a little distant, eyes that have seen just a bit too much, that are just a little sad.
Todd had decided to release his name from the publication ban, and he was about to encounter the public glare that went along with that. Theo Fleury chose not to attend and instead read his victim impact statement at a media conference in a show of strength while also sending a message that he had moved on far beyond Graham’s influence on him. Different people react differently, and I commend Theo for the strong messages he delivered that day both in his statement and in the symbolic distance he put between himself and Graham. To this day I have never met Theo, though he has provided much emotional support to me via text and phone.
The four of us, and the unnamed other victims out there, are all very different. We have all reacted differently. We will all have different paths forward. I like to think we have all survived. Except I can’t say that with certainty.
THE LAW COURTS Building in Winnipeg is an amalgam of old and new. In the small plaza that fronts onto the modern entrance that has been tacked onto a historical building of some note, there is a large, abstract sculpture made of polished steel that, depending on who you talk to, represents a bison (the symbol for the province of Manitoba), a mosquito (Manitoba’s quasi-official bird), or the scales of justice. I’m going with the scales of justice, and I applaud the sculptor for either his sense of irony (like justice in all matters pertaining to Graham James, the sculpture is absolutely indecipherable) or acute social commentary.
Because of Graham’s notoriety, the hearing was to take place in the largest courtroom, located in the older part of the building, a courtroom constructed back when justice was a grand concept and no expense was spared to give the judicial process a level of gravitas it seemingly deserved. The courtroom had high ceilings and decorated arches, with grand sculptures and artwork on both the walls and the ceiling. It featured a large gallery for visitors, a carved wooden bar to be passed only by those called, and an elevated bench from which a judge presided. Contrasted with the courtrooms of today—tiny hovels lit with fluorescent light that reflect the industrial process that modern justice has become—the grand courtroom was glorious. Yet it was in stark contrast to the justice actually now being doled out, a justice more akin to the manufacturing of a low-grade appliance produced on a barely functioning assembly line staffed mostly by machines, with whatever grossly overworked, overstretched workers were still left on the job wondering why anybody would even care about the crappy product being produced in the first place.
The grand, more traditional setting was enough to take you back to a different time and almost, just almost, make you forget that judges are only real people too, and that nobody holds the absolute truth or all the correct answers.
I KNEW I would be in for a rough day. It would be the first time in decades that I’d see Graham in person, for he too would be in the courtroom. I hadn’t seen him in more than thirty years. A virtual lifetime had passed since then. Walking into the Law Courts Building amidst the media frenzy outside, I could think of only one thing:
I should have put him, put all of this, behind me years ago.
Should have, should have, should have. There I was again, beating myself up over something I had tried so hard to succeed at over and over again only to fail at over and over again. I was thirty years removed from the abuse. I lived far away from him in a modest, safe house in a modest, safe neighborhood in a modest, safe suburb just outside of Toronto. Everything in my life was safe. All that was unsafe was far in the past. Except it wasn’t. And it still isn’t.
I’d promised myself that I would look him straight in the eye and let him know by my very presence that I was still alive, that I was still fighting, and that I had never deserved what he had done to me. I was going to stare down all of it—the abuse, the pain, the failure, the self-harm, the self-sabotage. I wanted to look into those dead shark eyes of his and let him know I was still alive and kicking.
Graham and his lawyers had been granted early access to the courtroom, so he
was already in the room by the time the rest of us entered through the public entrance toward the back of the room. He was seated at the defense table in front of the viewing gallery, facing forward, but looking down, as if he were staring at his shoelaces. We were only able to see him from behind and so we couldn’t see his face or any emotion he might be showing. It was clear that he was doing whatever he could to make himself look invisible, humble, small, inoffensive, and certainly no threat to anybody. I couldn’t stare him down.
However little we could see of him, his looks were still shocking. It was only natural that he would have aged dramatically over the thirty years since I had last seen him. But it was his presence, or lack thereof, that startled me. He had lost so much weight and looked so small, so insignificant, a shell of his former self. I didn’t really believe that I was looking at my abuser. It was as if I were looking at a complete stranger.
Except he was, still is, and always will be Graham James and all that is tied to that name. Even if he now goes by Michael, his middle name. Michael James is Graham James.
Michael was also my father’s name.
“ALL RISE FOR the Honorable Justice Catherine Carlson.”
I kept looking at him from my seat behind him, hoping that at some point he would turn around and look back, affording me a chance to stare right back at him. He never did, coward that he is. He hid all day from me, from everybody but his lawyers and the judge, never daring to look our way.
Graham has never gone to trial on a question of guilt or innocence. He has always avoided trial by working out an acceptable guilty plea with the prosecution to avoid one. His only appearances in court have been for sentencing. Sentencing hearings are not trials but are where the appropriate punishment for the crime is determined. Graham has always avoided any detailed public presentation of the facts and evidence against him.
At a sentencing hearing, the prosecution and defense each attempt to describe the offenses in general terms, they each review the sentencing law and precedent they see as applicable to such offenses, and they each then attempt to define for the judge why the sentence they are proposing is appropriate in the circumstances. The prosecution goes first, followed by the defense. There is no direct testimony on any of the details, as guilt has already been established.
Colleen McDuff was the lead prosecuting attorney on this matter. She ably presented the overview of the charges that had been laid against Graham and for which he had been convicted. She presented her analysis of the applicable law relating to appropriate sentencing for offenders for these crimes. The arguments are legal ones, based upon an interpretation of both the Criminal Code (Canada) and sentences issued in previous sexual assault cases that serve as precedent.
The prosecution represents no client. The prosecution’s only interest is to see that the law is properly applied. Crown prosecutors, the actual lawyers representing the state in its prosecution of a criminal, do not represent the victims. They are only responsible for upholding the law on behalf of the state. Victims give evidence on behalf of the prosecution of the criminal, nothing more.
A defense lawyer, however, has a client and must give that client the best defense possible within the rules. A defense lawyer presents both a legal argument as to appropriate sentencing and a sympathetic explanation of the convicted’s place within that law, trying to show why the client is deserving of less punishment than the prosecution is seeking by positioning the client’s crimes within the body of sentences previously handed out in similar situations. Graham’s lawyer did what any defense lawyer would do—namely, attempt to present his client in the best light possible. He was just doing his job.
Still, it is hard as a victim to sit in court and watch a defense lawyer operate. I can never get that day back, nor will I ever be able to forget some of the things Graham’s lawyer said in court that day. Though I have no animus toward Graham’s lawyer, I do not believe it appropriate that he receive any recognition in my telling of my story, as his efforts that day did not aid in my recovery. Accordingly, I will not use his name here. At the same time, I want to be absolutely clear that he was just doing his job—one essential in our legal system—and he was doing it well.
The problem with our legal system is not that Graham was afforded a strong legal defense. The problem is that there are people who are prepared to listen to the defense and accept it as fact, forgetting that the submissions presenting Graham in the best possible light have never been tested, point by point, for truth. People confused Graham’s sentencing hearing with a trial. It was nothing of the sort.
There are more problems with our legal system: a lack of sufficient appreciation for the atrocity that sexual assault is and the carnage it leaves with its victims; a shortage of understanding as to why victims may take so long to come forward and may be afraid to open up to the police; and often a failure to see how and why victims may try to cope with the abuse by suppressing detail or attempting to normalize the relationship with the abuser. All of these issues would soon be evident.
Most troublesome, however, were the potential sentences being debated. Graham’s lawyer argued that Graham should serve only a conditional sentence of twelve to eighteen months, to be served in the community under supervision—this for the hundreds of individual acts of sexual abuse he had admitted to, never mind the abuse he had not admitted to with the stayed charges. To even think that such a proposal could be put before a judge was in my view simply incredible—and I am lawyer. But it certainly did move the goalposts, because it left everybody hoping for a victory by the prosecution, which was seeking a jail term of six years.
In the United States, when a sexual predator such as Jerry Sandusky, assistant coach for the Penn State football team, is found to have sexually abused a number of boys and young men, he goes to jail for the rest of his life. That’s just the way it is. It seems fair. It’s not seen as vengeance, but as something right, just, and appropriate. In Canada, the prosecution was seeking a further six years in addition to time already served on Graham’s previous conviction.
I’d like to think there might be a happy medium somewhere in between. Then again, I also believe that Jerry Sandusky got exactly what he deserved.
GRAHAM’S LAWYER PRESENTED him as an ideal product of the correctional system.
After all, as his lawyer set out, Graham, previously convicted for hundreds of individual sexual assaults, had participated in rehabilitation programs during his incarceration. He had taken steps to understand more about himself, and he had come to learn more about his earlier mistaken understanding of having thought that his victims had consented. He had once thought that consensual sex with underage boys was natural and that he had not done anything wrong. Now, having learned more, now understanding he had been wrong about their consent, now understanding that his sexual pursuit of underage boys was wrong, he was, well, rehabilitated. He had not reoffended, and he would never, ever, ever reoffend again. It wasn’t that he had ever been a bad person, but simply that he’d never understood that what he’d been doing was wrong. Yes, these were new offenses being presented in court, but they didn’t relate to the man here today. This was all a remnant from his past life, the life before he had been successfully educated and rehabilitated.
Right.
Once again, that logical fallacy that the legal system skips over. All we could ever know was if Graham had or hadn’t been subsequently convicted for reoffending, not if he had ever reoffended. Yet over and over again references were made to the “fact” that Graham had never reoffended.
This is of particular concern when looking at historical child sexual abuse. It can take years, if not decades, for victims to come forward. I did not go to the police for thirty years. How can we ever know what Graham did after his first stint in jail when the time between offense and reporting can be so long? Based on my own timeline of abuse and reporting, he could have reoffended in 2003 and we wouldn’t find out about it until sometime around 2030.
Because
a previously convicted abuser can never prove a negative (it’s impossible for him to prove that he’s never reoffended unless he has a recording of every minute of his life showing he hasn’t reoffended), the legal system uses a shortcut and looks to whether the abuser has been subsequently convicted for further crimes. There is a risk inherent in not being aware of a possible time lag in reporting offenses. The system, while it should certainly take note of a lack of subsequent convictions, should under no circumstances ever see rehabilitation as a “fact.”
GRAHAM’S LAWYER TRIED to present Graham as a man who was far better than the public understood, a man who had been wrongly and unfairly seen as being worse than he truly was. He went all in to tug at the heartstrings right from the start. From the transcripts of that day:
I want to share with you the man, because with the greatest of respect, having sat here all day and having been Mr. James’s counsel for some two years now or so, I can tell you it’s like representing young women in Salem, Massachusetts, centuries ago who had all been accused of being witches.
The Salem Witch Trials are well known both historically and in literature for two reasons. First, those women accused of being witches, well, they were innocent. Second, there are no such things as witches.
Unfortunately for those of us living in the real world, there are such things as previously convicted serial child sexual predators, and Graham James had already admitted his guilt.
Graham’s lawyer didn’t stop there.
We can, if we choose to, look back at every action that an individual takes if we know that that person has committed acts of some criminality and start tying all of those actions back to the criminality, if we choose to. You can make it seem sinister. You can hear the music in the background. But that doesn’t make it so at the time.
I Am Nobody Page 20
