Reparations

by Stephen Kimber

  Patrick hurried to the telephone. He wanted to get to the desk before someone there checked the wires. That way, he could make it seem as if he’d picked up the story from one of his sources instead of off the wire like every other reporter in the province.

  What a great story! You had to hand it to O’Sullivan. He was a wily old bastard. On the eve of what was shaping up to be a campaign to unseat him, the man managed to pull one out of the hat. How had he convinced his chief rival to quit? Even as he waited for someone to answer the phone back in the newsroom, Patrick began making notes. Jack Eagleson. He’d need to call him. Jack was his source on the party revolt. How would Justice’s resignation affect his plans to get rid of O’Sullivan?

  Chapter 13

  April 2004

  At first, Michelle was nonplussed. “I thought you didn’t want to cover courts any more,” she said.

  “I don’t,” Moira replied, “but this is different.” She had no intention of telling her City Editor the real reason she was so keen to be assigned to J. J. Howe’s fraud trial. “It’s going to be a big deal. And I covered it when he was arraigned, so it would be nice to see a story all the way through for a change. Besides,” she added, hoping it would clinch the argument, “I should be able to get at least a story a day.”

  “Works for me,” Michelle said. Moira didn’t know it at the time, but Michelle had been complaining to Morton about her just the day before. Since Moira had come back from maternity leave, Michelle told the Managing Editor, she seemed less interested in coming up with story ideas of her own, or even doing the stories Michelle assigned her. Maybe this would get her going again.

  And so far, even before the pretrial hearing on Melesse’s pitch to use justification as a defence at trial, Moira was generating plenty of copy: a backgrounder on the reparations movement, a feature on the history of the Africville relocation and even a profile of J. J., based mostly on a long interview with Calvin Johnstone, who was more than happy to fill her in on the young man’s troubled family history and J. J.’s own heroic efforts to rise above it. (J. J. himself had turned down her request for an interview; Moira heard through the grapevine he’d sold the rights to his story to some Toronto publisher.)

  There was another story about the case Moira could have written, but didn’t, and had no intention of doing so. Luckily, neither Morton nor Michelle knew that. And Moira had no intention of telling them about it.

  Moira’s more immediate concern was that the Crown had just asked the Judge to ban publication of all evidence presented during the pretrial hearing. Although defence lawyers routinely apply for such bans, ostensibly to prevent potential jurors from hearing incriminating evidence in advance of their client’s actual trials, Moira had assumed Melesse wouldn’t ask for one. He wanted publicity. She was right. But Gettings fooled her.

  “Your Honour, the Crown certainly believes the defence’s motion concerning justification has no merit and that, after hearing it, Your Honour will so rule,” Gettings began that morning, “but we fear that allowing the defence to make this argument in the court of public opinion as well as in this court of law may irreparably taint the jury pool with extraneous and prejudicial information, and make a fair trial impossible.”

  “Accepted,” Justice Justice replied. Judges routinely approved such requests, but the speed and ease with which Ward Justice concurred prompted the reporters to look at one another. Was this going to be another arraignment story? The judge fixed his gaze on the journalists in the spectator section, zeroing in on Moira. “The media will not publish any evidence . . . presented during this hearing . . . until the trial is over.”

  Damn. How could she explain that to Michelle? Sorry, I can’t write a story today, but I want to stay here anywqy. Moira could argue that covering the hearing—even if she couldn’t write about what happened until after the verdict—would give her useful context when she had to write about the trial itself. Michelle would counter that the paper needed copy, not context. The Dairy Journal was all about volume now. The paper’s new owners had installed a software program to allow editors—and their bosses—to measure how many stories and how many column inches each reporter generated. Quantity was always easier to measure than quality. What if Michelle reassigned her back to general reporting? What would become of her plan then? Moira decided not to call Michelle, at least not yet.

  She focused on what was happening in the courtroom instead. Courtroom 5-1, a sterile, brick-walled barn of a room, was full to overflowing, even though this was only a pretrial hearing. There were lawyers, law professors, law students, the man Moira had interviewed from the Africville Descendants’ Association, several dozen other black faces, mostly young, who’d apparently come to show their support for J. J., even a sprinkling of whites who seemed, for a change, uncomfortably out of place. Moira was pleased to see that the usual contingent of court watchers—retirees mostly, who handicapped each day’s cases like horse players trying to pick a winner—had decided this was the case to watch today. They greeted Moira like a long-lost sister. “Where you been? We missed you down here.”

  There were reporters too, of course. Since there was no official press section, the sheriff’s deputies had cordoned off the first two rows in the spectator gallery for them. The CBC took up most of the first row—there was a local radio reporter, a local TV reporter, one English network TV reporter, another from the French side, a courtroom artist with her sketch pad and a shifting group of self-important producers who would flit in, listen for a few minutes, get bored and leave to hang out in the corridor and talk on their cellphones before wandering back in to see if things had got more interesting while they were gone. The CBC contingent even included two Talking Heads that the network’s all-news channel, Newsworld, had hired to serve as colour commentators for its coverage of the trial. Talking Head Number One was a black liberal former Crown prosecutor from Toronto, Talking Head Number Two a white conservative professor of criminal procedure at Dalhousie University. Moira had watched the two men on the news the night before previewing today’s hearing. Despite their different backgrounds, they seemed to agree too often to be interesting.

  For starters, they were like-minded on the question of whether Melesse’s motion would succeed. It would not. “At this point in the proceedings, justification is simply not relevant,” said Talking Head Two.

  “Mr. Melesse will have plenty of opportunity to make that submission prior to sentencing if his client is found guilty,” agreed Talking Head Number One. “The only question the jury should have to answer is, did he do the crime? If he did, then we can talk about whether he should have to do the time.”

  They also agreed that the defence had erred in not asking Justice Justice to step aside because of his apparent bias during arraignment. Talking Head Number Two speculated that the defence’s decision might have been tactical. “Perhaps,” he suggested, “Mr. Melesse hopes the judge will say something he shouldn’t during the trial, and then the defence will use that in an appeal.”

  Then the two men chewed over the significance of last-minute changes to the makeup of the two legal teams. Elinor Evans, the prosecutor who’d handled the Crown’s file since the arraignment, had been dumped. She’d been replaced by her boss, Henry Gettings, an ambitious young lawyer everyone knew was planning to quit soon to go into private practice.

  “This will be an ideal showcase for his talents,” said Talking Head Number Two.

  “But only if he wins,” added Talking Head Number One.

  Talking Head Number Two: “Touché.”

  They were only slightly less in tune while discussing the significance of the news that Cecil Montague, who’d preceded Talking Head Number Two as the law school’s resident expert on criminal procedure, would be sitting at the defence table as what Uhuru Melesse vaguely described as an “adviser and friend to the defence.”

  “Our younger viewers may not recognize his mime but he w
as the foremost criminal defence lawyer in this town in his day,” Talking Head Number Two said. “He won many cases others considered unwinnable. “

  “That’s true,” Talking Head Number One, the black former prosecutor, agreed, “but what’s interesting is that it’s my understanding some of his most high-profile victories were in cases involving white defendants accused of crimes against black people.”

  “Yes,” said the law school professor equally affably, “you’re absolutely right. But that may be the reason he’s part of the defence team. Optics. The same reason you might want to have a woman lawyer if you’re a man accused of sexual assault. It might help with a jury.”

  “It might, if the jury even knows who he is,” responded Talking Head Number One, only slightly less agreeably. “Mr. Montague hasn’t been a practising lawyer for more than thirty years and, with all due respect to my academic colleague here, most ordinary citizens won’t have a clue who any law professor is, let alone a retired one.”

  Talking Head Number Two looked less agreeable, but said nothing.

  The interviewer quickly got them back on the harmonic track when he asked about Shondelle Adams. “What is her role on the defence team?”

  Neither seemed certain, but both thought it couldn’t be significant. Her law school colleague was dismissive, noting that “Ms. Adams is a proponent of something called critical race theory, a marginal and obscure specialty that isn’t accepted as legitimate by most legal scholars, so I’m not sure what she’ll be able to contribute to Mr. Howe’s defence in this criminal matter.”

  The black former Crown was only slightly more supportive, claiming Shondelle’s background in academe probably didn’t prepare her for “the rough and tumble of a courtroom.”

  Sitting alone in her living room, sipping on her second glass of white wine, Moira laughed out loud. “You’re talking about the lady with the brown envelopes, buddy,” she shouted back at the TV screen. “Deep Throat.”

  It wasn’t quite so funny that morning when Moira ended up alone in an elevator with Shondelle. Shondelle didn’t say a word as the elevator made its too-slow way from the parkade to the fifth-floor courtroom. Moira guiltily tried to fill up the silence by babbling that she hadn’t given up on “that story you told me about. I’m just waiting for some confirmations, that’s all.” It wasn’t true. And Shondelle wasn’t buying. She didn’t even look at Moira, didn’t reply, just strode purposefully away as soon as the elevator doors opened.

  Now Moira watched Shondelle and Melesse conferring at the defence table. Montague was seated by himself at the end of the table, engrossed in notes he was writing on a yellow legal pad. Shondelle’s role was as much a mystery to Moira as it had been to the Talking Heads. The only thing she knew for certain was that Uhuru Melesse was a very different lawyer now than he’d been at the arraignment. He hadn’t a clue then, couldn’t even answer the simplest question about reparations. Now he sounded like an expert. Was that Shondelle’s doing? And there was something else, too. This morning, in the serum outside the courtroom, Melesse had looked Moira in the eye—instead of staring at her chest—when he answered her questions. Shondelle?

  The changes in Ward Justice since the arraignment were much more dramatic. There’d been a hush as he hesitantly shuffled in through the judges’ entrance this morning. One of the sheriff’s deputies held the door for him. Did Justice have the strength to push it open himself? Moira wondered. His progress up to the bench—a distance of no more than ten feet and three steps—was interrupted twice while he stopped to catch his breath. The courthouse was rife with rumours. The Judge had stomach cancer. The Judge had brain cancer. The Judge had lung cancer. The Judge was suffering from multiple-sclerosis. Lou Gehrig’s disease. Alzheimer’s. The judge had a brain tumour and had weeks, maybe days. left. The sheriff’s deputies had organized a pool on how long he would last. “You can’t win if you don’t play,” one of them said to Moira as they invited her to pick a date and plunk down her five dollars. She declined.

  The Judge had finally collapsed into his seat. He appeared to study his notes while he caught his breath. During the discussion of the publication ban, he didn’t ask any questions, simply let Gettings speak, and then issued his order with an economy of words. But even that seemed to exhaust him, and there was another long silence before he spoke again.

  “Mr. Melesse . . . are you . . . ready to proceed?”

  “Yes, Your Honour, we are.” Uhuru looked at Ward Justice, nodding in acknowledgement or, perhaps, something more significant. Moira tried to interpret the gesture, couldn’t, went back to making notes.

  “Thank you, Your Honour,” Uhuru said, then paused again before finally plunging in: “Actus non facit reum nisi mens sit rea . . . Every first-year law student is familiar with that Latin maxim. Literally, it means there is no guilty act without a guilty mind. It is one of the fundamental underpinnings of our system of criminal law. In order to find someone criminally responsible, the Crown must prove that the accused voluntarily committed a guilty act—an actus reus—and, of equal importance, that the accused knew that what he did was wrong, that is, he possessed a guilty mind—a mens rea. But there is a third element that must also be satisfied before we can determine criminal liability. The actus reus and mens rea requirements must be satisfied in circumstances where no legally accepted defence is available, where there is no justification for the conduct at issue.”

  It sounded like a law school lecture to Moira. Had Montague written it?

  “Let us consider that maxim in the context of this case,” Uhuru said. “Element number one. No one is disputing that my client committed what the law would call a guilty act. My friend here,” Uhuru said with a nod to Gettings at the prosecution table, “will outline for you the facts of that act. I have told him that the defence is prepared to stipulate to those facts. As Your Honour is aware, we agreed to waive our right to a preliminary hearing and proceed directly to trial.

  “Element number two. Did the defendant have a guilty mind? As Your Honour is also well aware, this question is usually raised in cases where the accused is not capable of determining right from wrong, or where an accused did not anticipate the consequences of his or her actions. Neither consideration applies here. My client is an intelligent young man who would have had no difficulty distinguishing between what is legal and what is illegal—as well as what is right and wrong, moral and immoral. It is also clear that Mr. Howe did not accidentally, or even recklessly, commit these acts. On the contrary, he did them with considered, deliberate forethought—and with pride.”

  Moira stole a glance at J. J. Howe. He was smiling to himself.

  “So that brings us to the third element the court must consider in determining whether what happened is a crime. Justification. Over the course of history, there have been plenty of unjust laws. Many of those laws were changed or revoked only because individuals challenged them by violating them.

  “So the question becomes: When does a person have the moral right, perhaps even obligation, to commit an act that would otherwise be a crime? And how should the criminal justice system, a system based on the notion that there is a right and wrong, a legal and an illegal, deal with ambiguous circumstance?

  “If you walk just a few blocks from this courtroom you’ll find a statue of Joseph Howe, the great Nova Scotia journalist, reformer and politician. Today, we venerate Howe, in part, for a crime he committed. In March of 1835, Howe published an attack on the local magistrates and police which accused them of stealing more than thirty thousand pounds from the public treasury. He was charged with criminal libel. At his trial, the presiding judge instructed the jury that the words in the article constituted a libel on the magistrates, the truth being no defence against libel. Howe admitted publishing the article, the judge told them, so the jury’s duty was clear. Joseph Howe was guilty. Ten minutes later, the jury returned with a verdict of not guilty.” Uhuru paused, lo
oked around the courtroom. “What would that jury have said about the conduct of the Howe before you today . . . James Joseph Howe?”

  Uhuru paused again, took a sip from a glass of water on the defence table, acknowledged Montague as if, Moira imagined, to say thanks for that.

  “In the 1850s in the United States, there was a law, the Fugitive Slave Law, that required federal officers to return runaway slaves to their ‘rightful’ owners. Although the law was on the books and people were charged under it, many juries in the northern states refused to convict anyone accused of that crime. The law was eventually repealed.

  “In more recent times, in this country, Dr. Henry Morgentaler challenged Canada’s abortion law by violating it. From 1969 to 1984, he was charged on four separate occasions with performing illegal abortions. In each case, a jury acquitted him. Finally, in 1988, the Supreme Court of Canada declared Canada’s abortion law unconstitutional.

  “In 1982, a Nova Scotia woman named Jane Stafford was charged with first-degree murder after she killed her husband with a shotgun while he slept. A clear case of murder? No, the jury decided. After listening to gruesome testimony about the physical and sexual abuse she and her children had suffered at the hands of her husband, the jury accepted the defence argument that Jane Stafford acted in self-defence, even though it was clear that the usual requirement for self-defence—an immediate threat—was not present.

  “The common thread in those cases: the jury. When it comes to changing the law to meet the realities of changing times, juries—what we in the legal business like to call ‘the conscience of the community’—have played a most critical role. Jurors are triers of fact; they pick and choose among the facts presented, give more weight to some facts and less to others. But juries can only exercise this very important role in society if they are given the opportunity to hear all of the evidence. We would submit, Your Honour, that in this particular case that means hearing about the history of Africville and the unjust treatment of its citizens by government officials during the past one hundred and fifty years. It also means hearing about the evolving legal concept of reparations and what role it may have played in my client’s actions.