Yves: Content warning: there is some sensitive material covered in this episode that includes everything from substance abuse, police brutality to discussions around trauma.

You’re listening to Modern Law, presented by the Canadian Bar Association’s National Magazine.

They say the first rule of intelligent tinkering is to save all the parts. But what if whatever we’re trying to fix is in chaos? What if we’re talking about fixing say, a criminal justice system that has been broken for decades, floundering under its own weight, insanely costly, rife with mental health issues, often described by critics as inhumane and marred by systemic racism? Are we really going to solve the problem with tinkering around the edges as we have done for so many decades?

If you think that description of our criminal justice system is a bit harsh, well you should read the latest book by our guest today, Benjamin Perrin. Perrin is a law professor at UBC’s A Large School of Law, and he served in the Prime Minister of Canada’s office as in-house legal counsel under the Harper Government, and Lead Policy Advisor on Criminal Justice and Public Safety.

He’s also the national bestselling author of “Overdose, Heartbreak and Hope in Canada’s Opioid Crisis,” and before that, “Invisible Chains, Canada’s Underground World of Human Trafficking.”

His latest work, which we are discussing today is “Indictment, the Criminal Justice System on Trial.” Now having just finished reading it, I can say it certainly is an indictment of a system that in theory at least is supposed to help keep Canadians safe while supporting victims of crime.

Now, we’re going to talk a lot about victims in this conversation but we’re going to talk a lot about offenders too and their struggles. So if I may suggest, please, please keep an open mind as you hear this conversation.

Benjamin Parrin, welcome to Modern Law.

Benjamin: Thanks for having me.

Yves: Congratulations on the book. Finishing a book is always an ordeal I imagine. Before we dig into it, could you just tell me a little bit about yourself, how life got you to where you are today and now the author of this book?

Benjamin: Sure. Big question, I’ll give you the quick version and we can drill down if you like. I grew up in Alberta. You know, I developed an interest in public policy at a really early age. In fact, I still remember the first topic of the speech and debate competition that I did in Grade 8, I believe it was. And this is going to date me a little bit. It was: be it resolved that the Young Offenders Act be abolished. That was the topic.

So you know, looking back now, I had no idea of course I’d do – you know, work in criminal law.

Yves: What side did you take?

Benjamin: Well you have to take both. That’s the way it works in – one minute you’re arguing for, the next against, and you know. But back then, I still remember going to the library, because there was no internet, looking for sources, and all they seemed to have on current events was, it was like the Western Standard or something, so it was kind of like a right-wing type new magazine.

And I remember kind of the horrified look on some of the judges faces when we came in. And this is our main information source for our stats and things like that. And I bring it up for a couple of reasons. One is I definitely was a conservative, the sort of front of the parade as it were, and the tough on crime agenda in the years of the Harper Government.

There are certainly things that I publicly and privately disagreed with, but by and large, there were three critiques that I thought were true of the criminal justice system. I thought that it was too lenient towards offenders. I thought that it was not treating victims of crime with adequate care and respect. And it was too slow and inefficient.

Now two of those things I still think are true but one of them I don’t. And the process that I went through earlier in my career to an understanding about the role of victims and how the system treats them, and this current book, I continue to believe that the criminal justice system does a tremendous disservice to a great many people who are victims and survivors of crime. And we can talk more about that.

I also believe that it is a very slow, inefficient, archaic system and quite frankly deals with a lot of things that other institutions should be dealing with. And the criminal justice system is being now increasingly used, both the police and the corrections system, as a default response to things like homelessness, poverty, substance use and unresolved mental health issues.

But the one I think that has undergone the most transformation for me, and you really see it in this book, Indictment, is I don’t believe that the answer to the rising crime rates and concerns about disorder in our society, I don’t believe the answer to that is more police, harsher prison terms, longer sentences. Those are broadly considered tough on crime measures. And I really – I’m quite persuaded not just by the research – this is I think why this book is unique – is yeah, I bring in the latest sort of statistics and studies, as well as some dating back to like the 1950s that have been telling us the same thing all along, but it’s really the stories of people with lived experience that each chapter in this book really profiles in an in-depth way. And it’s because it was their stories that had this massive impact on me as I went into this big question of, you know, if you could design a new criminal justice system from scratch, what would it look like? That’s what kind of was the question motivating this book.

Yves: To the credit of the book, there are all these personal stories, particularly in the first half of the book. I want to mention one in particular though. It’s a personal story that you begin with, which is Greg. And you have a connection to Greg obviously. Can you explain to us who he is and how did he shape your transformation in how you view this?

Benjamin: Yeah, so Greg is my father-in-law. And we had a very, very difficult relationship early in our time together. I’ve been with my wife for over 20 years now. And when we first started dating, you know, things were a little tentative. Things got better and got worse over time. I knew that he struggled with alcohol and drugs. I suspected there were some mental health issues too. All I knew was that it was a really difficult environment. It was really difficult for me and my wife. When we’d visit, we’d sometimes have to leave and stay in a hotel because things got so bad.

And I did not know, I didn’t understand what had brought him to that point in his life. And I’m very grateful that we have an absolutely incredible relationship today. And I have so much respect and admiration for him. And he shared with me his full story as we were talking more and more about this project. And I knew some of it, because something big changed for him, and it was right in the middle of that time.

And essentially what happened, as I look back on that and learn more about it, is he was dislocated from his mother, who’s indigenous, at age three. He was sent to a very abusive boarding school at age five. And the kind of early childhood trauma and abuse that he experienced, I saw in the other folks that we interviewed for this book.

And it set him on a whole life course trajectory that contributed to mental health and substance use issues. He was later diagnosed with foetal alcohol spectrum disorder. And Indictment opens with the true story of an RCMP helicopter hunting him down in the wilderness in Kananaskis Country in Alberta. He was out there. It’s like boy, hearing him tell the story, he was in the wilderness for 70 days with his horses.

He had hit the end of the line. He had a crack cocaine addiction on top of things. He had some criminal charges he was facing from hurting others, as you know like the saying is hurt people, hurt people. And he went out there really as a last-ditch effort. He didn’t know, he hasn’t connected with his indigenous community at all. He just felt he needed to be in nature on the land. And so that’s what he did.

And just as he was leaving, he saw a documentary about something called a vision quest. And he realized that’s essentially what he was doing. And so yeah, I don’t want to spoil the story for readers, but suffice it to say, he came out of that process a totally different person. And I saw it. My wife saw it. Everyone who knew him saw that he was different. It wasn’t that everything was better overnight, but he broke that addiction to crack cocaine in the wilderness, with his horses in the beautiful land there.

It was an incredibly powerful and very spiritual experience he had. And one of the reasons that I introduced this story in the book is that he was caught by the police. He was apprehended and put in cells. But they saw something. And it’s a remarkable story. You’ll see this in this book. I think there’s two ways to read Indictment. One is it’s a policy book and it's got some really interesting ideas of how we could have a safer society and a more just justice system.

The other way to read it actually is to look a little more deeply at the people in there. And there are key moments in people’s lives, whether it’s a police officer, a victim’s support worker, a judge, a lawyer, a family member, that for better or worse, what they said or what they did in one moment changed things. It’s like an inflection point. And those officers, the RCMP detachment there near Banff, let him go.

They saw I think him just disintegrating in the cells. It was very traumatic for people with childhood trauma to be incarcerated. He’d spent some time before in that sort of situation. And they saw. They’d never come across anything like it. That’s what they told him. They’d never seen anyone out there on the horses, on his own. You know, it’s pretty wild seeing. And yet they knew it was doing him harm, and they let him go.

And it’s not that, you know, if they’d followed the book, you know what should have happened, right and he should have been dragged back and retraumatized some more. But they didn’t do that. And something really kind of fun that he says when he shares the story is, as he was getting, you know, leaving the detachment, had a family member picking him up and then having to go get his horses to continue on this journey, one of them said, “Hey Greg, mention us in your book.” So he didn’t write a book. I did but they’re mentioned here.

Yves: Good enough. So he caught a break. Someone showed a little bit of compassion for him. But this is a little bit unusual in the criminal justice system. You know, a line that stuck with me comes from Fritzi Horstman, the founder and Executive Director of Compassion Prison Project.

And I’ll just read the quote. I think it’s towards the end of the book but it really did catch my attention. But she says, “We resort to crime because we can’t get our needs met. Period. Be that the need of an addict, a need of a homeless person, a need of a jealous husband, it’s just a trauma response and we have to see it that way. Once we’re trauma informed, we’ll realize they’re not bad people. They just did a bad thing.”

So this whole idea of trauma is obviously at the centre of your book. It’s striking and I think it really is one of the strengths of the book, is all this discussion around trauma that you lend it. And this whole notion that the criminal justice system is just failing catastrophically at dealing with mental health disorders and on such a vast, vast scale, because the criminal justice system is quite massive. And worse yet, it’s making it even worse and worse as we go on through time.

Do you want to guide us through that a little bit, through that general thought?

Benjamin: Yeah, absolutely. At a high level, I’ve reached the conclusion after not just the interviews of people with lived experience, but the other half of the interview is with people who are professionals who work in an around the system, including a forensic psychiatrist who talked to leading trauma experts. And the conclusion from all of that body of expertise and the published research is that we can’t understand any interactions that we are talking about within the criminal justice system without understanding trauma.

And that goes from understanding offending behaviour, that goes to understanding rehabilitative prospects and what the impacts of incarceration are on people. That goes for things like how do we assess witness testimony. We have an article I’ve co-written coming out in the Canadian Bar Review in this fall of 2023, probably around December or so we think, all about what would a trauma informed response to evidence law look like?

And so you know, basically what we see is whether you’re a jury member or a judge, assessing a witness who has unresolved trauma, be they a complainant, the accused, the third party, without a really profound and like even basic understanding I should say really of trauma, we risk getting it horribly wrong.

So someone who’s describing what anyone objectively would think is the most horrific thing you could imagine, maybe a vicious assault or sexual offence, and they have a very flat effect and they’re just describing it fairly robotically, you know, that’s not what we would think of as a typical response to describing that kind of incident. But we understand fully that’s very common for many folks who have experienced trauma. That’s a very dissociative state, the sort of flat effect and it’s really to be expected.

Likewise, with telling their story, there’s something that happens with the sort of fragmentation of how those stories get told. They’re often not chronological. Different details will take on greater or lesser importance to certain folks. And we even saw that in our research interviews. It doesn’t mean people aren’t reliable and aren’t credible, but what it means is that that’s the impact trauma has had on them.

So I think it’s a real big picture. And to think about whether the fundamental tools of criminal justice, which are based on coercion, so police and incarceration, is all based on the threat of the use of force or the actual use of force, or the actual depravation of liberty or the threat of depravation of liberty, that is at its core the tool of our criminal justice system.

Now we can try to soften the edges a bit, but at its core, that is the hard iron fist that the velvet glove goes into. And so when you’re dealing with people who are offenders and have caused harm, and that’s the word that our system uses – I call them people who have caused harm in the book – we need to understand how they got there. And the criminal justice system does not do that. And it’s a bit like looking at the world through a straw.

So you know, I teach criminal law. I’ve been doing that for 15, 16 years now. You know, did you do the thing? Did you commit the actus reuswith, the requisite mens rea? It’s at that time, it’s legally irrelevant, you know, what happened before and after unless it bears on those questions from the perspective of determining your guilt. Now sentencing, maybe we’ll listen to some of that, and other stuff.

The problem with that is that at a system wide level, we do not result in safer societies and we do not break these cycles of trauma and harm. And so someone who ends up with some sort of criminal justice outcome that is, for example, even if it’s not a record, but they’re just in the community on conditions, waiting to have their charges heard, they’re already sort of caught in the net of the system.

And the net around them goes ever and ever tighter as they get further and further into the system. So the people that we interviewed for this book, they spoke about childhood traumas that began before he had had memory. There were some folks who, for example, were given up as newborn babies to child welfare, right. There were people who talked to me about the physical and the sexual and the emotional abuse they endured. Many of them were indigenous people in the child welfare system, people who, the youngest age and the link between trauma and the mental health issues and substance is direct.

Doctor Gabor Maté who’s a leading, world-renowned trauma expert talked about this in his book. And he describes the link between childhood trauma and adult mental illness and substance use, that the clinical evidence for that is as strong if not stronger than the link between smoking cigarettes and lung cancer at this point.

And so we know that people who were victimized as young people, that that leads to two highly probable outcomes. One is they’re 50% more likely, the research finds, to harm someone else later in life. And secondly, they’re also more likely to be victimized later in life, eight times more likely to be victims of a childhood – if you’re a childhood sexual assault survivor, there’s an eight times more likely chance that you’ll also be abused as an adult than if you hadn’t been experiencing that sort of thing as a child.

So if we’ve got people in a system who are overwhelmingly victims of crime, or not every single one, but the vast majority have experienced some degree of trauma. They’re entering the system and we’re not understanding their needs. And the people who harmed them, the research that we see is that it’s virtually a universal experience of people who are before the courts, have experienced substantial levels of childhood trauma.

And then when we use those coercive tools, it essentially revictimizes them as well. So the idea that they would sort of learn from their mistake or failings, the idea that the punishment is designed to rehabilitate or teach them a lesson that they will somehow, with more punishment, learn better, this is a very common thing I heard from folks. So their first sentencing outcomes were pretty minimal. You know, they started at the lower end, so we’re looking at being released on conditions in the community.

Now then they breach those. What are those conditions? Things like a curfew, things like not using substances. Those are very common still across the board, and they are very commonly breached. And one of the reasons why we heard examples of that is first of all, on the conditions of substance use, people have addictions. Putting an abstinence order on them is nonsensical at best and it’s actually cruel and even deadly at worst.

The youngest age that we found folks in our study who started developing dependency on substances was five years old. These are kids who found alcohol and became alcoholics at age five. When it came to things like fentan – would have been heroin at the time – opioids, cocaine, I heard folks regularly, and this isn’t like one or two people, regularly it was 11, 12, 13, right. That’s very, very common.

And so those substances are criminalized. If you get caught up in the system, you have conditions, do not use, you’re breaching those. We know for example with indigenous people that they are more likely to end up back in prison for breaching conditions rather than committing new offences. So this is where this net begins to tighten, tighten, tighten.

Now the conditions of incarceration in Canada range widely depending on the institution and the level of security. Many of the people I spoke to had – there’s no better way to put it than this – they’ve essentially toured all of these types of institutions. The first person who responded to our research poster was incarcerated as a 12-year-old. And from age 12 to 39, this is an indigenous woman, she was imprisoned for 25 of those years. So it’s not even that it was most of her life -

Yves: That’s more than half her life.

Benjamin: Yeah, exactly. And the impact on her has been devastating. She tried to take her life and was literally stitched up and put in a segregation cell. She as a youth was put in a co-ed facility which still exists today in some places. And when I interviewed her and asked her about all of the things that her experiences were like, at the beginning of the interview I asked, “What was your experience like incarcerated?’ And she said, “Well I guess I can start by talking about as a youth,” she said, “It was good.”

And I was shocked. I was like, what do you – I’m thinking in my head where is this going, you know? And she said – and she wasn’t being sarcastic – she said – I said, “What was good about it?” And she said, “Well, they fed us really well. We got three meals a day.” “And sometimes,” she said, “They even gave us a snack.”

And so trauma had set her norm, it’s just off the charts. And then of course she went and talked about how they would lock her up in a rubber room if she swore at the guards, and how there was harassment from the young men in the prison. It just – it’s absolutely devastating to see how we are treating people while they’re incarcerated, when they get out. It is not working and it is doing a lot of harm.

Yves: And you get a little bit – you got into this issue of policing and use of force. I was struck by something one of your interviewed experts said about the heavy handedness of police responses, and in dealing with people who are probably suffering from trauma, also have trouble reading dominance dynamics I think you call it. This expert explains how obviously that doesn’t work with people who can’t process the social cues of dominance. For someone who’s actually paranoid, you know, this kind of dominant display of force or whatever, might just even heighten their arousal, is how they put it.

And so I’m hoping you can explain that too in the context of use of force policy in Canada, because that’s another side to the criminal justice system that we probably need to talk about as well. It’s not just incarceration.

Benjamin: That’s right. And this research was really driven by that question of what was your experience like. And people told us, people told us about abusive force. And then I did the secondary research into it and talked to some of the other people who work in the system. Yeah, Doctor Sandy Simpon is a forensic psychiatrist at the Canadian Association for Mental Health, sort of a leading expert on people with mental health disorders in the criminal justice system. He’s been doing that for decades.

I had him walk through with me how a typically developed person like I am, would respond to – would be expected to respond to the police following their training. This is the really key part of this in the book. Because the sense that we often have is, oh it’s a few bad apples. We’ll hear about a police incident and think, “Oh it was that one officer.” And there certainly are those.

Yves: What the hell are you doing resisting arrest, you know, or these kinds of things.

Benjamin: Yeah, they had it coming, you should just listen to the police. So the tendency that a lot of us have, and I was in this camp for sure, was that when we would see these really horrific stories on the evening news, of which they keep happening fairly frequently – we have multiple ones this week, like new cases or new updates on the existing cases – to just sort of dismiss them as one-offs.

What I found through this research was they’re not one-offs. This is a system wide problem, and it has to do with a mismatch for how police are trained to use force, the national use of force model, and how people who the police frequently and disproportionately encounter do not respond in ways that a typically developed person would.

So the list of folks who would respond differently and often do respond differently, include people with unresolved trauma, includes people in mental health distress, in particular people experiencing a psychotic episode of some kind, people who are intoxicated whether it’s alcohol or substance of some kind, people who have developmental or neurological disabilities, so things like FASD or autism, that sort of thing. And so those are a number of different groups of people that the research shows are disproportionately involved in police contact.

The way that the use of force model works is it is based on the idea of dominance to achieve control and acquiescence. And so the way that it was sort of described to me is an example that Doctor Simpson gave in the interview, was he said, you know, if you’re standing at a, he was talking to me, if you’re standing at a bus stop and suddenly you see several armed police officers, you know, people look big when they’ve got their kit and their vests on, whether they’re well-build bodily or not, many officers are but they’ve got a big kit on and there’s several of them and they’re coming at you. And they start pointing at you saying, “Get on the ground! Get on the ground!”, chances are you’re going to get on the ground. You might be in total shock but you’re going to comply.

And what he said though is when you’re dealing with one of those other groups of people, that’s not necessarily going to be the response. So rather than that display of dominance/subdue, it will have the opposite impact and in fact escalate that behaviour. That’s seen as a threat to someone for example who has unresolved trauma. And we talk, you know, people are familiar with fight flight freeze. So a fight reaction can come. Why? Someone was physically abused for decades of their life as a child by a dominant figure who would yell at them, and your response to that is you’re going to go and run, right, you’re going to run away from them, which then of course you’re fleeing police. And we know that those then that will escalate because you’re not in compliance.

No, it never ends well. Or you’re going to stand your ground and fight to try and save your life. So the brain is essentially, the executive function part gets really turned off at that point for folks with unresolved trauma. And in particular, Doctor Simpson spoke about people who are in mental health distress. So they will view those dominance cues in a way as a threat to their life and they will respond to fight back.

I think another really good example of this for folks – I mean it hit home for me really hard, because I have a son who has a developmental disability. We got a couple of diagnoses including autism. It’s a real case. Joshua Nixon is the name of the young indigenous man. He was walking down the train tracks, had his noise cancelling headphone on, which people will be familiar – even Netflix has shows that show that’s a common thing many people with autism kind of use to deal with the sensory issue.

And so he’s walking down beside the train tracks. And he’s a witness there and the officer does the first thing in the use of force model which is a verbal command. He tells him to stop. He doesn’t do that. So what the use of force model tells you to do next, it tells you to do, is to – you’re going to secure compliance through soft contact. So the officers call for backup, he like literally lays his hands on this person. He put his hands on his shoulder or wherever it was. And this young man didn’t like being touched. He sort of flinches back or whatever he does. And that is now considered to be resistance.

That then in the use of force model, and it’s a circle, people could look it up online and see how the steps works. That then is seen to justify what’s called hard contact. So that’s the officers using physical force to now secure the compliance which means they want this person to be essentially probably in handcuffs. But they’re not – if they continue to walk away, like they’re going to listen and do what the police tell them to do. It’s all based on control, right.

When that doesn’t work because at this point right now, he is actively “resisting” – okay but remember this is a man with autism who’s being accosted. He’s done nothing wrong, and he’s just responding to these moments. The police are escalating the situation. That’s what’s really key in these interactions to understand, is it’s not a one-sided interaction. It's not one person. There are two or more people involved. And the police are trained to respond in ways that lead to the escalation.

I have seen the photos of Mr. Nixon’s injuries. They are absolutely appalling. His eye is completely black and blue and swollen shut. His family cannot believe that someone with this sort of disability who was really doing nothing wrong, would be treated this way and the situation would end so poorly. And the problem that we see in the vast majority of these cases is that when there is an investigation into this situation, frequently the outcome is the police are exonerated. Why? Because they were simply following -

Yves: They followed protocol.

Benjamin: Yeah. They’re following training. And the numbers speak for themselves, you know. Over two thirds of people who die in police encounters in Canada were experiencing mental health distress or a substance use issue at the time. And these are people, like I mentioned, these cases, also family members who’ve called 911 looking for help with an elderly parent who had dementia, and they didn’t want the police to show up, but the police showed up and the next thing you know, their loved one is dead. Those are real cases.

Yves: You described four responses to trauma and I always thought there was three, but maybe that’s just my own ignorance. But so I think most people are familiar with fight flight and freeze. But there’s a fourth that you mentioned that I thought was really interesting. It’s fawn. I made a connection between that notion of fawning which I guess is being sort of submissive to authority or to a dangerous situation, hoping to sort of get out of it unharmed in some way, or with the least harm possible.

Perhaps you can explain it better. That connected at least in my mind with the situation of indigenous people. And I’d like to talk a little bit about indigenous incarceration rates. There is a tendency to plead out when one is accused of a crime. And I’m wondering there if you could explain what pleading out is, if you could explain what fawn is, and if there’s a connection between the two.

Benjamin: Yeah, absolutely. So fight flight and freeze are the three automatic nervous system responses that someone experiencing trauma will have, and they’re reactive. They’re not conscious thought, right. Fawn is a fourth one. It’s a learned one. And so that’s why it’s not in the typical list that people often hear.  

So fawn is essentially a response that is learned from someone who has experienced typically repeated trauma, often as a child, but not always – it could have been intimate partner violence as an adult too – to essentially try to mollify the threat. It’s you’re using acquiescence to deal with that. And so what that could look like for example is an abusive parent comes home and the abused child is expecting to be harmed again.

And so what do they do? They’ve made sure that everything, the house is clean, you know, “Well let me do this.” They’re trying to pacify and mollify the threat. What it was described to me as in terms of how – understanding fawn is really crucial for understanding this issue of pleading out. Myrna McCallum who’s a Métis Cree lawyer and has a great – might as well plug her podcast too – The Trauma Informed Lawyer is a great podcast. And basically, I interviewed her for this study and she’s worked as both a crown prosecutor and defence counsel and I’d say as a leading national expert on trauma in the criminal justice system.

And she explained to me how indigenous people who she has worked with and has known over the years, that this phenomenon of pleading guilty is a fawn response, is something that’s, again, a learned behaviour. So think about the state, being in the position of that authority figure, comes in and accuses you of doing something. Your options that the justice system gives you, because it’s an adversarial system we have, is either you acquiesce, you admit guilt and you take whatever punishment you get. And in our system, there is some lenience given, some for a prompt and early guilty plea, right. So again, you’ll mollify the threat a bit. Or your other option is to fight and to resist and to oppose.

If you did that as a child, you would be beaten worse. Your life could be at risk. And so you have learned to not do that thing. And so the idea behind an adversarial criminal justice system with someone who has that unresolved childhood trauma, who is indigenous, who does not have effective legal counsel or representation or advice of any real kind to speak of, it heavily encourages someone to plead out, which is to plead guilty either when they were factually innocent and didn’t do it, or when they may have had a valid defence or argument to make, or even stepping that down from there even further, if they even had a lawyer they would get a better outcome, because they’d be presented in a better light.

They’d be given advice on how to present themselves as having taken responsibility for their actions and things that any defence lawyer would tell someone if you’ve committed a certain crime. “Here’s some things you can do to kind of clean your act up a bit before we go to the sentencing hearing.”

So none of that is available. And so the other part of it of course is we know indigenous people are disproportionately denied bail. And so if you are incarcerated, you’re denied bail, you’re in pre-trial detention and these circumstances, and you’re told that if you plead guilty, you’ve pretty much served your entire sentence now anyway. Or you can stand on principle and stay behind bars and go to trial. This is just not a real decision to make. And so people end up taking that outcome too often, and then of course they’re given conditions as part of that resolution typically, that they’re set up to fail and set up to breach.

And the system continues to feed itself that way without any thought to the injustice of that situation or the fact that that person is inevitably going to be back before the system sooner rather than later.

Yves: That was another striking figure that, you know, so there’s a greater proportion of people in Canada in custody awaiting trial than in any other G7 country. So we’re at the bottom of the ladder there. Two thirds in provincial or territorial custody, 72% in Ontario, I mean that’s completely bonkers. That’s an illustration of some of the problems we’re facing here.

And so I want to talk a little bit about again these incarceration rates. André Bear who’s a writer and indigenous advocate that you mentioned in the book and that you talked with, he’s quoted quite a bit in there. He’s quoted at one point as saying that the criminal justice system is simply not worth saving. And he compares indigenous people in Canada to prisoners of war, which is quite an image.

And I think this is probably the most damning part of your indictment too is that, you know, I was actually reminded that incarceration rates were once upon a time floating around 20% to 25% for indigenous people, as a representation of the population in prison, or in Federal Corrections at least. And it’s now up to 32%. We have no sense it’s going down in any way. The disparity is widening for blacks as well as you point out in the book. I think that needs to be said.

What I don’t get though is that we’ve been talking about overincarceration for years. I mean you’ve been in policy, you’ve advised the Prime Minister or the past Prime Minister. What is it the government is actually doing to address this? And I realize that we’ve had the Supreme Court come out with the Gladue principles back in 1999. There have been other decisions that have followed that. There are those who will say that the justice system is systemically racist. Is it intentionally racist or is it just that the system is falling to pieces under its own weight? Help us understand that.

Benjamin: Yeah. You know, the rates get even worse as we do more digging. And they are getting worse. So it’s not just an impression. You can look at the office of a correctional investigator in Canada who tracks – who does the best job of tracking the rates of indigenous incarceration federally. And he has a line graph. You can see from Gladue through to IPEELEE, all the way to today, it’s a steady climb all the way up to 32%.

Yves: That’s Doctor Yvonne Zinger, right?

Benjamin: Yeah, exactly. And when Doctor Zinger did a further dive and looked at female federally incarcerated people, it’s 50% of federally incarcerated females are indigenous. When we keep going down, I’ve got charts in the book for every province and territory with the indigenous population, general population and the incarcerated population. And they’re as high as 70% to 80% in places like Saskatchewan and Manitoba. And when I started looking into youth rates, which I hadn’t seen any stats on, so I thought we should look into this because a lot of people I was interviewing talked about being incarcerated first as youth.

You don’t become incarcerated typically for the first time at 25. I mean most of the people that we spoke with, their incarceration journey began as very young people, very young, as young as we begin locking people up at age 12. And I bring that for two reasons. One is if you want to know where things are going and if they’re going to get better or worse, you need to look at where we’re at with those folks, because they are the next generation of adult federal inmates, right.

And so the rates of indigenous youth incarceration are through the roof. And just so that we’re clear how this is not an exaggeration, if you look at Saskatchewan or Manitoba, in 2019, 2020, so right before COVID happened and a lot of weird things happened statistically, that was the year I was doing the study anyway, it was 100% of female youth in custody in those two provinces, 100% indigenous female teenagers, 100%.

Yves: So what are we doing about this? Is there any effort underway currently to address this? Described a tinkering.

Benjamin: Yeah. It really is. So we had Gladue. I don’t think anyone thought it would be a panacea but I think it’s fair to say people have been surprised that it hasn’t had any discernible impact, the court itself. We also have had significant efforts to try and have more indigenous police officers and judges, cultural competency training. The Truth and Reconciliation Commission of Canada’s recommendations to law schools and law societies, lots of judicial training in what are called indigenous courts or First Nations courts which is a name that was contested. But they are out there to try to bring in elders into sentencing processes, all these sort of things.

The reason why I conclude in the book that none of these things have had a discernible impact on the disproportionate rates of indigenous incarceration is because our system is fundamentally flawed. It is perfectly designed to get the results that it’s getting. We’re dealing with an intergenerational trauma of hundreds of thousands of people in our country who are being – having that trauma, end up getting medicated through things like substance use that ends up bringing them very often into the criminal justice system.

We talked earlier about how hurt people hurt people. We know from homeless counts that indigenous people are overrepresented vastly in the homeless population. And so if you were to just take it a big step back which I do in this book, and I encourage people to do, and say let’s take a minute and zoom out and stop thinking just about courts and judges and police and all that. Let’s look at it as a social issue, right. Let’s just look at this as a social issue.

We see that the social determinants of justice, as they’re called, are all, every single one of them, cutting against indigenous people. So things that are more likely to lead to criminal victimization and more likely to lead to criminal justice involvement as an offender, all of them, we see indigenous people disproportionately reflected in. So things like level of education attainment, things like housing status, things like mental health and substance use issues, all of these things which are significantly correlated with those two things, victimization and criminalization, are all because of the ongoing impacts of Colonialism. The deck is absolutely stacked against indigenous people.

And so this is what is systemic racism. That’s the idea of systemic racism, that we have one set of rules for everyone, but the way those rules end up getting applied are done in a disproportionate way. And we also absolutely have overt racism at all levels of the system as well.

So that’s why when you read this book, I think it becomes – it became very clear to me in speaking with everyone from an indigenous person who’d spend their time in prison most of their life, survivors of police abuses of force, indigenous mothers I spoke to who had their children killed in police encounters, all the way through to indigenous lawyers, judges, elders, chiefs of police who were indigenous, it runs the gamut. We really did a deep dive on this and talked to people at all different levels. And what came through loud and clear was the same thing that the 1999 Manitoba Justice Inquiry found, which is that it is inadequate to simply try to bring more indigenous things into the settler system to fix it. That’s not going to work.

And that report was 1999. It recommended indigenous justice, that we need to turn the page on the Western Settler Colonial model, this idea of police and prisons is the way to go, and instead recognize and fund and support indigenous nations in revitalizing their own laws and ways.

And in the book, I profile nations that are already doing that. And they’re having incredible outcomes. But they’re being constantly stymied. So whether it’s indigenous led policing which has been shown to reduce violent crime by 25%, being chronically underfunded, whether it’s indigenous healing lodges which also have same thing: lower [unintelligible 00:42:45] rates, but chronically underfunded. And so we really need to take a big step back, and I say we as someone who is a white settler, and recognize that we are a big part of the problem.

And indigenous people have the solutions. And they’re looking for people who will be allies. And in that sense of saying like, “Look, we know we’re causing harm, and I’m not here to take the mic. I’m here to pass the mic.” And so that’s why in the book and in the podcast we have, people hear directly from these folks. And I’m just grateful that everyone took the time to share their stories with me, because that’s really where I think the answers lie to this. It’s not in more of the same.

Yves: There’s another revealing quote from the book which is from Adelina Iftene I think from Dalhousie Law. She says others way before me have been talking about how criminal justice has become the asylum of the century. And you draw a connection to the introduction of I think specialized courts with that quote of hers: mental health courts have been put in place as well or have been tried I think.

Explain to me where this whole issue of mental health crisis fits in to this problem, because it’s not just an indigenous incarceration rate problem either, because we’re seeing overrepresentation of blacks. We’re also seeing just overrepresentation of poor and homeless people. Why are we saddling the criminal justice system with the role and responsibility of dealing with mental health when it’s completely ill equipped to do so?

Benjamin: Yeah, I think the John Howard Society of Ontario has a really great report on this. Like I quote from that report. They conclude that the criminal justice system is taking over where the mental health system has failed. And unfortunately, and this is where I go back to the idea that we need to take a big step back, you know, whether we’re talking about police officers, as judges, as lawyers, we need to take a step back because the criminal justice system is actually taking on a lot more than it should and it's doing not a good job at it.

So that includes things like having mental health courts, thinking that that’s the way to kind of work through this. That includes things like having police with mental health people in their vehicles. There’s a lot of kind of people of interest in that. In the book, I point out the fact that non-police crisis response teams is a way to go. And there’s a really good track record of those.

So rather than the criminal justice system sort of morphing into ever increasing areas where it really shouldn’t be involved, like for example, police involved in homeless decampments, this week, the Federal Advocate for Homelessness released a report, and the number one recommendation was that the police not be involved in enforceable displacing of people who are homeless.

So you know, there’s a very clear list of major pressing social issues that I tackle in the book. And there’s basically a chapter, half chapter at least, on each of them, and their homelessness, substance use, mental health disorders, poverty and unemployment. That’s the list. And again, those are at the very top of the list of those, is social determinants of justice. I recommend that we decriminalize those issues, in other words we don’t use either directly or indirectly criminal justice tools, but instead use public health approaches. We use evidence-based policies to actually deal with those issues rather than using these very costly, ineffective and sometimes deadly criminal justice responses.

Now, when there’s an actual need for an armed police response which would not look like not someone just yelling in the street, but someone who’s armed or threatening people, that’s when you need law enforcement. Sure you do. We’ve talked before about how they need to be trained differently and that the use of force model is flawed and all that. And for people in mental health distress we should have 24/7 non-police crisis teams. For a much smaller number of people than we have now who are separated from society, IRU, the goal should be to transform their trauma as well as the trauma of the people they’ve harmed.

That’s why in the book I describe – the whole second part of the book is on a new transformative justice vision. It’s got seven key components, one of which is abolishing traditional prisons and jail and having instead secure rehabilitation and healing places like in countries like Norway which have seen [recitatives] and dropped from 60% to 70% down to just 20%. And they did that through not having people in places like we’ve been talking about where they’re traumatized and joining up with street gangs and things get worse and worse for them.

Instead, it’s a much more normalized environment, much like a college campus. They’ve got people who work there who are actually trained on supporting you to get – you get vocational training in there, access to substance use support, mental health support. And the outcome really speaks for itself. And it’s a much more humane, innovative way to deal with harm in society that breaks that cycle. Again, that’s what we’re trying to do in this transformative justice vision. You’re trying to break these cycles, the endless revolving door, the in and out what people call catch and release, so that when people are causing harm and are a risk to the public safety, that they are actually given support to address those underlying issues in a meaningful way.

Yves: I think that’s one of the big merits of the book is that you actually do propose some solutions, at least to discuss and to contemplate. You also mention though that there are some major obstacles and I’d like to talk about that because, and I think you mentioned it’s basically money, power and politics, not necessarily in that order. The easy one you seem to be saying in the book to address is the money, because if we’re going to completely transform our criminal justice system, obviously that means I’m guessing diverting vast amounts of budget from criminal law enforcement known as the core of the sense, to addressing a mental health crisis that is kind of raging throughout the country.

Benjamin: Yeah, so addressing the underlying causes piece is cost-effective. So when we work through all the examples, so you look at for example even something like housing, you know, supportive housing is way way way cheaper than shelters which is way, way cheaper than jail, which is way way cheaper than institutionalization in a hospital. And so that’s where again, taking a public health approach really makes a lot of sense.

Things like the early interventions, you know, we talked earlier about children and childhood trauma being a real origin story for a lot of future harm in society. And so I talk in the dollars and cents approach. Like this is the kind of conversation we need to have. Is what we’re doing working? What’s the evidence for it working or not working? The evidence is it’s not working. What evidence-based program could we instead go about implementing and how much are they going to cost?

So the Nurse Family Partnership is an example I talked about of an evidence-based early childhood intervention. It ends up generating net savings of $18,000 US for a participating family. To give a bit more context, the Rand Corporation found that for every dollar invested in that program, which pairs up public health nurses with young families, in those early childhood years under the age of two, for every dollar invested, you end up saving $2.88 on forgone social services, healthcare and criminal justice costs.

And that program reduced criminal convictions for those children who were given that early support as young children, toddlers really, infants and toddlers. By the time they were 15 they had 81% fewer criminal convictions. And they had been spared too, 79% less childhood abuse. So these types of programs, if we’re serious about addressing harm in our society, there are very clear things we can do to make that happen.

And so I do think the dollars and cents piece is the most, the easiest of the three obstacles to overcome for people who are willing to listen. This week I actually gave a talk at the Fraser Institute. And it was specifically on this issue. Are we getting good value for our public safety money? And I think that’s a really important conversation to have. I think there’s a human rights conversation. I think there’s a decolonization and reconciliation conversation. I think there’s a mental health conversation and I think there’s this fiscal conversation. So we shouldn’t be taking the system we have and feeling that we’re stuck with it and that things can’t get better, because they can.

Yves: I do have to confess though that I had some scepticism sort of returning to me every now and then as I was reading this book, because – and it’s not that I had any sense of the criminal justice system was working particularly well. And I think you make a great case for how catastrophically bad it is working out for people. But a complete reimagining of what it should become does strike me as a massive undertaking and a challenge. And you mentioned the two other obstacles there which are power and politics.

I’d like to get to the politics bit, but the power part is interesting too, because we’re talking about a system that employs a lot of people. And that strikes me as a very hard nut to crack, getting police to think differently, to approach their use of force and their coercive powers differently if not to discard them altogether. We have judges, we have a whole judicial system that you know very well. We have lawyers, everything. So how do you move that?

Let’s assume that the money’s there and even that the political will is there and God knows, I don’t think it is, how do you move all that?

Benjamin: So I think the project is really driven by this question of if we could design a new criminal justice system from scratch, what would it look like? So it’s an aspirational question. But it’s not detached from reality. And so the reason why I think it’s important to put forward a vision of how things could be quite radically different and better is we don’t have that right now. No one’s having that conversation.

It’s either we keep, again, tinker with the status quo, kind of what I describe as the mushy middle outcomes that are not working, or we’re going to go to a real resurgent tough on crime approach which is in vogue right now and to not get into the politics piece, just to say those are the two things on offer right now in the policy window. And we’re not given any other options.

And so that’s where I think this book, Indictment, offers something really significant which is it says, look, there are actually better ways to do it. And some of these things, and there’s why there’s sort of seven key parts to this vision, yeah, they’re not all going to happen overnight or maybe ever. But some of them are happening now in Canada. And all of them are happening somewhere in the world. This is absolutely not a pipe dream. People can go through and read for themselves. Each of the chapters has actual working programs that are achieving better results for less money for all of them.

And so they’re happening. So the question is are we going to try some of them? Are we going to scale some of them up? Maybe we don’t abolish all of our prisons overnight, but could we get one provincial or territorial government or the Federal Government to create one prison that’s like Halden Prison in Norway, just one and see what happens? That’s achievable. I think absolutely it is.

Can we get some Canadian citizens to do non-police mobile crisis response teams? Yeah, Toronto is starting to do that. They’ve got pilot projects. A pilot project was announced in Ottawa for that as well. So I actually think that if we are willing to try something different and new, and people are able to see the results for themselves, that we can see a greater and greater uptick and use of these better tools.

So it’s a bit of an insurgent strategy really, to change the system at the margins, on the periphery. Some of it’s inside. And to get to your question about power, I’ve worked with a number of different judges over the years, and at the international level here in Canada. And I have to say that I was universally impressed with the incredible character and sense of – and I say morality – what I mean by morality is they have driven by a sense of justice. I really felt that. I felt like every judge I ever met was in the right – had their heart in the right place. They were doing it for the right reasons.

I really believe that if more judges – I don’t know if they do. I’ve read the entire Correctional Investigator of Canada reports that comes out every year. I don’t know if they do that or not. If they read this book, I think they would be appalled. I think they would be absolutely appalled at the impact that their decisions are having. And I know they’re smart enough and have a greater sense of, again, morality to know that it’s not enough to say, “Well, I just sentence them to prison, it’s up to someone else to figure that out.”

The fact is you’re a part, you’re an integral part of the system that is causing this massive harm. And again, I start from the position that judges are in it for the right reason. And so there can and are changes that can happen at the judicial level. There can and are things that happen at the level of lawyers. I personally know multiple federal prosecutors who have quit their jobs because they felt they were doing more harm in the drug prosecutions they were involved with. And they in good conscience ethically couldn’t continue to do it.

Harold Johnson is another lawyer who was an indigenous crown and defence lawyer who quit his role in the system, saying that he tried to change it but it ended up changing him and made it worse. So we’ve got some of these elements of people either making personal decisions or communities saying enough is enough, where the Mohawk Council of Gananoque said, “Enough if enough, we’re creating our own peacekeepers. We are going to police and administer justice ourselves.”

They’ve now created their own court system. They have their own commissioner of justice. Their vision is to implement their own traditional laws in their traditional territory. So things are happening and moving. And I hope that more people will see the potential to do things differently. And maybe it’s not all seven ideas. Maybe it’s other ideas, but we’ll take on this challenge of saying look, if we’re sick and tired of things getting worse and not better, are we willing to approach with an open mind, like you encourage people to do at the start of this conversation.

Have an open mind and see if there’s something in here that you think would make a meaningful impact that you’re willing to get behind either personally or professionally. And that’s the way that I think change can happen.

Yves: And so what about political power, because here’s the thing, politicians, somewhere they do sort of channel the will of their electors and the voters. And so it’s a public debate issue as well. Another person who’s featured regularly in the book is Hoshua Sealy-Harrington. And I’ve spoken with him sort of about some of these issues. One issue we had in a past conversation was we were talking about all these notions around defunding the police.

One of the questions I asked him at the time was, I understand the general idea behind defund the police for example, or defund the criminal justice system in this case, let’s say. It really actually means redirecting resources elsewhere to address root causes and other root problems that underly all of this.

But my point was that it’s terrible marketing. You know, this gets people riled up. You say defund the police, you’re going to get a huge backlash, as there has been to the notion. So how do you address that? I mean I guess a good start is getting people to read this book. But how do you get the political class onboard in this, because you know, we’re headed towards an election in a couple of years. There’s good reason to believe that there could be a change in government, although it’s no sure thing obviously. And if there is a change in government, it would likely be a conversative government which will probably, if all goes as expected, promote a tough on crime agenda. Where does that leave us?

Benjamin: I think that it’s a really crucial point in the criminal justice debate. And it’s not just at the federal level. We see it in some provinces and at the municipal level as well. It’s also not just conservative parties but even provinces like here in BC with an NDP government, have adopted measures that would be considered tough on crime type measures. So it’s definitely in resurgence right now and I think that’s why it’s so important to be talking about first of all, A) are these measures going to make it safer or not, like where’s the evidence on that? And B) what are some alternatives that would make it safer for a fraction of the price?

So that’s why I do things like go and speak at the Fraser Institute and talk to people and ask the question. And it’s a fair question. And you know, there’s a number of what are considered to be traditional core constituencies in the conservative coalition. One of them is fiscal conservatives. And taxpayers hate wasting money.

And so I really think that’s a wedge that needs to be driven hard, because there is no evidence that our tough on crime type approaches are functional. They don’t work. They’re very costly and they lead to these continued cycles of people causing harm in the community. Even the slogan, you know, jail not bail that the conservative leader is using is so clearly not going to help, because the fact is if you deny someone bail, they’re going to get their credit and they’re eventually getting out and you have done nothing to make them any less of a risk to the public. You’re just delaying their release until the next time they can harm someone.

That’s not a system that is promoting public safety, likewise with increased policing. Here in BC, we elected a mayor in Vancouver who ran on a platform of 100 new police offers. And now were paying for it. We got record breaking property tax increases, largely in part driven by the increased police budget.

But other cities didn’t take the bait, so both Toronto and Chicago are examples of other big North American cities who had the choice between tough on crime candidates, including a former police chief, someone promising 500 more police officers, and candidates who were on the other side arguing to: let’s address some root causes. Let’s address other ways to deal with harm and disorder and issues in our society. And the tough on crime candidates lost.

So we do tend to flip between liberal and conservative federally. It’s just almost a matter of time it seems that that happens. And it will mean a very different type of conversation. It will mean a different set of advocacy tools. It will mean much more litigation. We know that most of the tough on crime measures under the former Harper Government were struck down by the courts. They were not successful. They failed, but in the process did a lot of harm and cost a lot of money.

So that’s one of the reasons why I think people are listening to or are curious maybe about what I have to say because I was part of that group. And I’ve said since, you know, seeing the light is not an exaggeration, and changed my views. So I do think speaking to people at the political level at all parties about the fiscal side is important.

The other sort of core constituency within the conservative movement is social conservatives. And that includes evangelical Christians. And I am a Christian. And I actually speak to people who identify as Christian, as a Christian. And I mentioned Fraser Institute, I’m speaking at a Sunday service out in Surrey at a church in a week or so. And the whole – it’s not a policy conversation. It’s about the way that I see Jesus speaking to people who we would, you know, not even want to like allow it in our homes or churches. He was regularly hanging out with people who were law breakers, criminals, traitors, and the religious and ruling class couldn’t believe it. They were incensed that he – “Doesn’t he know what this woman did? If he knew what she did, he would not allow her to clean his feet with her tears and her own hair.”

And he said, “For who much has been forgiven, how much more,” you know, they’ve got so much more love. The woman caught in adultery is another one. You know, she’s brought before Jesus. And for people who aren’t familiar with this story, the Law of Moses said that she needed to be stoned to death. They asked him, “What do you think?”, trying to trick him. And he said, “Whoever is without sin, you throw the first stones.” One by one, starting with the youngest I believe who said it, or the oldest it was, they all left. And he was left there and he said, “Is anyone left?” No, no one’s here. And he said, “Well, if they don’t continue, neither do I.”

So that idea of forgiveness, mercy, reconciliation, these are strong traditions within the Christian faith. People don’t maybe remember but they’ve heard the names of John Howard, Elizabeth Fry and William Booth. These are all people motivated in large part by their faith. And I think there’s an opportunity, and we see it in the United States, for a new group of people who are socially concerned, followers of Jesus to step up and say to our fellow brothers and sisters that we need to take a step back here and pause. And are these harsh, punitive measures really consistent with how we understand ourselves before God? Is all equally blame worthy and in needing of forgiveness and the Saviour?

And so those are conversations that aren’t for like CTV National News or something. But it’s the kind of conversations that with two thirds of Canadians identifying as Christian, I think is important to have, because their faith is used for political purposes to support these policies in Canada and the US. So I think that’s a really interesting piece of this work. And I’m happy to be able to share that because it’s not a view that I always shared. And it’s only because of really kind of going more deep into my own faith, and it got really much more real to me, just not as an idea but much more real in my own life, that I began to see that.

And to circle back to my father-in-law Greg, he’s an indigenous man who’s also a Christian. And he spoke about, on his vision quest, he didn’t feel like he was alone at all. He felt God’s presence there and it’s an incredible part of his story, and I am grateful for the second chances that I’ve given in my faith. And I do see the need to keep us all safe. I do think there’s obviously a need for people to be protected. And we can do that in a way. But to take I think what I would describe as the cruelty of the criminal justice system, and the injustices of the criminal justice system, those really disturb me and I hope that we can all find reasons to try to mitigate those and end them.

Yves: I hear you. I think sometimes about – something that’s going on actually near where you live. You’re in BC obviously and you know, there’s been this recent effort for example to decriminalize possession of illegal substances under 2.5 grams. A lot of the blowback you hear from that is what is it doing – there’s almost like it’s a nimbyism going on about that too, because people don’t like to see these things in the street, and would prefer to keep them out of view. I hate to put it crassly, but people worry about their property values.

Is what you’re suggesting that also we need to put up with a little bit more discomfort as a society? I mean I hear the compassion side of it but do we also have to check a little bit ourselves and our own prejudices about what we see in terms of the messiness of human lives, and accept that we’re going to come into contact with them more frequently perhaps in our streets?

Benjamin: I think you hit the nail on the head there. I think we need to do a better job as a society and with political leaders absolutely, and the media I would add on that list, and each of us ourselves including myself, I put myself on this list. I think all of us need to do a better job at distinguishing between a lack of safety and being uncomfortable.

Those are two very different things. And I didn’t make that up. That was on social media. But it’s true. It hit me. And it’s really, I think a great moment in time to have that conversation. I’ll give you an example. First off, I’ll just mention, having lived in Vancouver now for 16 years, you know, we found syringes at our children’s preschool. This would have been, lets see, eight years ago, like way before decriminalization. This was outside their preschool in a relatively nice area of town near Oak Street. And it was in the bushes and trees where the kids would play.

So it’s not like decriminalization happened and now there’s some syringes being found, okay. That’s really been driven by a moral panic to try to drive sort or right-wing support for some of these harsher policies. So there is no epidemic of public drug use increase in BC in the last six to eight months since the decrim pilot started. What there is though is there is an epidemic of people dying. It’s the leading cause of death for people ages 10 to 59 years old in BC. It’s the leading cause of death. That’s the emergency.

It’s not that there might be some open-air drug use, which there has always been, always. It’s that’s the emergency. So it’s a real flipping of things. But the example that comes to mind for me about the discomfort and safety thing is like many folks, we live in a nice area of town. We’re in East Vancouver. And there’s a really nice park we have by our house. It’s just a half a block from our house and that’s where our kids go to school. It’s a kindergarten to Grade 3. All three of our kids have gone there. Our last child is going there now.

And there’s a playground and there’s a kind of grassy field, a nice big tree. And during one of the rare moments where we had sort of inclement weather in the winter and some snow coming, we noticed there was a tent over there. And we’re not used to seeing that. And there was a discussion among the kind of neighbours just in sort of a text chain of, “What do we do?” So that’s an example of something where we weren’t unsafe. We weren’t at all. We were – some people were very uncomfortable. I didn’t feel uncomfortable about it. Some people were very uncomfortable with it.

And what drives that is the fear. What is in the tent? That’s what it’s about. What is in the tent, right. What is going to happen to me or my kids? That’s all fear based, right. And so what’s the concern? That the person is going to harm us or attack us, or you know, that’s a violent concern. So there’s this media association that we’re drawing, that many people are drawing, between homelessness and violence. And it’s not fair. It’s not fair and it’s not true.

And we know that so many Canadians are experiencing homelessness right now, and these are also young families. We have students at UBC, I’ve heard stories of people, not personally but through the media, who live in their vehicles if they have a vehicle, or they live in the public study spaces. They shower at the gym that they have a student pass to. They’ll sleep in the libraries because they’re 24/7 libraries. They will get food around campus. They have no home. They have no home. They’re students.

And you know, people who live beside bike paths, just a little outside of distance, you know. And then there’s the cardboard box shelters that were on Hastings and Main that the police and bylaw threw in garbage cans and that.

So what we did in that moment is we had an opportunity. We could have even called the police to try to hustle and harass this person to move and go somewhere else. Like literally where are they going to go? It’s just move them along. Or do something different.

And so yeah, we brought some – a pot of warm food, sort of made some extra dinner and brought it over, and you know, announced our presence. It was just me, you know, from 10 or 20 feet away, just didn’t want to alarm the person. I said, “Hey there, how are you doing?” “Oh fine,” you know. And immediately I heard his voice, I didn’t have any kind of concern. There’s a human connection now. It’s not just some scary thing in a tent.

And I offered the food. I said, “Hey, I’ve got some food here if you’d like.” “Oh yeah, sure that would be great.” Left the food and left him alone in peace. And he was there for a few more days and then I saw him again. And like I say, I didn’t see him in the tent. But I recognized his tent in his backpack because he had it rolled up, down the street later that week. He was at a coffeeshop just standing outside there.

And so that was a person just sort of passing through. And again, it would have been very different if we would have called the police and had him subject to that kind of enforcement action. So again, a lot of what we’re dealing with are people who are having a really difficult time in our communities. And we do need to have more compassion for them. And when our safety is genuinely threatened and concerned, there’s no doubt that we have opportunities to get the protection we need. But we need to be I think a lot more just careful about distinguishing between those two things.

Yves: I think that’s a great place to end the show and the interview. I want to thank you for coming on. I think it’s an important conversation to have. Congratulations again on finishing this book. And I hope people read it. So Benjamin Perrin, thank you so much for coming to the show.

Benjamin: Thanks, I really appreciate it.

Yves: You’re listening to Modern Law, presented by the Canadian Bar Association’s National Magazine.