The Boat People by Sharon Bala

The Boat People by Sharon Bala - In late June of 2009 a cargo ship filled with 503 Sri Lankan Tamils is intercepted by the Canadian Navy just off the west coast of Vancouver Island.

In a heart wrenching scene Mahindan is separated from his 6 year old son, Sellian. Men and women will be in different camps. The children go with the women but Chithra, Sellian’s mother had died in childbirth. Father and son had never spent a day apart. Mahindan encourages Sellian saying it will only be for a short time and the Aunties will take care of him. With his son gone “Mahindan’s hand felt oddly empty at his side”.

On July 1, Canada Day, Peter Gigovaz and Priya Rajakaran , a senior counsel and articling student respectively at Elliott, McCadden and Lo in Vancouver are on their way at 4:00 in the morning to Vancouver Island. Gigovaz has chosen Priya because of her Tamil Sri Lankan heritage. She does not tell him her Tamil language skills are rudimentary.

Gigovaz speaks of Canada having “a split personality” with regard to refugees - at times welcoming and other times rejecting.

They are assigned several clients. Mahindan and Sellian are two of them. The arrivals cannot understand why they are not just accepted as refugees. They left a war torn land on a rusting ship to travel almost half-way across the world. They had thought they would be free to enter Canada on arrival. Now they face a complex refugee process with an uncertain end.

The book shifts back and forth between the proceedings in Canada and the circumstances, starting 7 years earlier in Sri Lanka, that led the 503 to flee on the rusting cargo ship. 

Mahindan and his wife, Chithra, had lived in Kilinochchi, the capital of Tamil Eelam, with friends and family. In 2002 they speak almost abstractly of the Tamil Tigers who chased the government soldiers away and govern the area.

It is a book with unsparing stories of suffering and death that are the consequences of the brutal civil war coming to its end in Sri Lanka. I could barely read of the earlier time knowing what was to come after the ceasefire ended in 2002.

Moving back to 2009 Grace Nakamura is a new Immigration Adjudicator. A long time mentor, Fred Blair, who is now in the Federal Government cabinet has obtained the position for her. She is not a lawyer. Grace is confident she can master the rules and guidelines and policies and law. The Minister is looking for adjudicators that will not merely admit a refugee because of a claim of persecution. He believes many on the ship were Tigers.

Of Japanese descent Grace’s family had been interned and badly treated during World War II. Her mother, despite being afflicted with dementia, is striving to gain recognition of the mistreatment of the Canadian Japanese. They were considered dangers to Canada during the war.

The hearings, detention and admissibility, grind on month after month.

Horrific stories are told to Grace. Some appear carefully crafted. Are they true? There is usually no evidence of either corroboration or contradiction. Of what use is general knowledge of the violent and vicious end to the war. Will the claimants be persecuted if returned? Who among the 503 should Canada admit?

From life and legal experience how evidence is given is as important as the words said. Most of the evidence of the claimants is given in Tamil. When interpretation is involved the task of discerning truth becomes more daunting. Nuance is lost in translation.

I am grateful I have never had to handle such hearings. The lawyers are diligent in advancing the cause of the claimants. The toil on their psyches would be immense for losing sends clients back to an, at best, hostile land.

And what if one or more of the claimants was a committed Tiger? The Tigers were designated a terrorist organization. Would Canada ever admit such a claimant? Such claimants would face the greatest risk if deported back to Sri Lanka.

Priya’s family had left Sri Lanka after earlier persecutions by the Sihalese majority. They had applied to emigrate to several countries and been accepted by Canada.

For Canada the underlying question is whether the boat people should have applied to come to Canada officially. Is systemic discrimination and periodic violence towards the Tamils sufficient for claiming refugee status?

Conflicting emotions run through all in the book and myself as reader. I am the grandson of Norwegian immigrants on one side of my family and on the other side the descendant of Irish immigrants who came almost 200 years ago. None of them faced hearings to justify their staying in Canada. At the same time I am not comfortable with a policy that lets anyone who reaches Canada stay here. I have yet to work out in my mind the balance on who gets to stay.

I was completely absorbed in Mahindan’s fight to stay in Canada with Sellian. His cause was aided by skilled lawyers. It has been some time since I became so identified with a character and wanted him to succeed.

I appreciated that despite the great issues and emotions Bala did not demonize any of the main characters. Mahindan, Priya and Grace are all treated with respect. There is empathy for each of them.

It is a powerful book that will make every reader think about immigration law and recognize it will be a never ending issue. Bala has written a great novel that is all the more impressive for being her first novel. The Boat People is one of the finalists for the 2019 Harper Lee Prize for legal fiction. (July 8, 2018)

A Differentiated Homework Plan

Tom Milley

Class Action by Steven B. Frank involves a court action by Los Angeles elementary school students seeking a court order banning homework. In my last post, a review of the book, I set out the entertaining and thought provoking arguments of the children that homework unnecessarily interfered with their right to be kids.

In the book Frank referred to a series of actual American Supreme Court decisions involving schools and related them to the issue of homework.

Most famous was Brown v. Board of Education of Topeka, Kansas which struck down the “separate but equal” schools of America which had perpetuated segregation and provided inferior education to African Americans.

Most unusual was A.M. v. Holmes which “upheld the arrest of a thirteen-year-old boy for fake-burping in gym class”.

Most significant for the children’s case was Goss v. Lopez which “established education as a property right”. The Court was dealing with the issue of whether Ohio schools could suspend students for 10 days or less without a hearing.

In the majority opinion Mr. Justice White stated:

A short suspension is, of course, a far milder deprivation than expulsion. But, “education is perhaps the most important function of state and local governments,” Brown v. Board of Education, 347 U.S. 483, 347 U.S. 493 (1954), and the total exclusion from the educational process for more than a trivial period, and certainly if the suspension is for 10 days, is a serious event in the life of the suspended child. Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may be constitutionally imposed by any procedure the school chooses, no matter how arbitrary.

Here is a link - https://supreme.justia.com/cases/federal/us/419/565/

Yet the case reference in the book that caught my attention was a Canadian case:

…. If you look to common law principles to support our claim, you’ll find that in 2009 the Supreme Court of Canada granted one family the right to refuse homework for their son.

I was intrigued. Was there such a case? I could not recall such a decision.

My research showed there was no court decision but there was a unique agreement negotiated in 2009 by Shelli and Tom Milley, Calgary lawyers, with the Calgary Catholic School Board that their younger children would not have to do homework.

In a Globe and Mail article the Milley’s were prompted to take action because:

Shelli and Tom Milley were exhausted by the weepy weeknight struggles over math problems and writing assignments with their three school-aged children. They were fed up with rushing home from soccer practice or speed skating only to stand over their kids tossing out answers so they could finish and get to bed.

And don't even get them started on the playground their daughter, Brittany, had to build in Grade 3 from recycled materials, complete with moving parts. Or the time their eldest son, Jay, was told to cut pictures of $1-million worth of consumer goods from a catalogue.

They reviewed studies that suggested homework, especially for younger grades, did not show a clear link “between work at home and school performance”.

The Milley’s valued education but wanted the opportunity to determine as parents what extra work was needed. They spoke of the frustration of not having time to focus on specific needs. They wanted to work on spelling with Brittany but could not because of all the other homework.

Having struggled through homework with their 18 year old son, Jay, they wanted a different arrangement with their younger children, Spencer who was 11 and Brittany who was 10. It took two years but they reached an agreement with the administration called a “differentiated homework plan”.

In the agreement:

…. their teachers will have to mark them based on what they do in class, and cannot send work home that factors into their grades.

More specifically:

The contract the Milleys and their children signed doesn't go just one way. While preventing teachers from giving penalties when homework isn't done, it also puts clear expectations on the students and their parents - to practice a musical instrument, for instance, and read daily, two activities more clearly linked to academic success, Ms. Milley suggested, than racing through leftover homework. And the parents agreed to make sure their children have "opportunities" to review class work and study for tests. (Although that may as well be homework, Ms. Milley observed wryly, noting that, by her count, Spencer has had roughly 28 quizzes and tests in about 38 class days of Grade 7.) The bottom line: the Milley kids won't be doing any school-assigned work at home any time soon ....

 In an interview with the CBC:

With that bit of paper, Shelli Milley says the children can now go straight to bed after Girl Guides, gymnastics, speed skating and music lessons, without them, or their parents, having to complete long multiplication or jiggle decimal points.

Subsequently individual agreements were worked out on homework with some other parents. Those agreements were more informal.

Tragically Tom died suddenly a year later.

I do not recall excessive homework when I was in grade school. More time was spent at home studying for exams than in homework. I certainly had enough time to read. I would go through about 6 books every two weeks as that was the maximum number of books I could take out of the library.

Class Action by Steven B. Frank

Class Action by Steven B. Frank - Samuel “Sam” Ellis Warren is in the 6th grade in Los Angeles. He is worn out by homework. He loves to play the piano but every night he has lots of homework. He has little time for any kind of play. He is already gifted at thinking logically.

A parenting teacher for the neighbourhood is dispensing “advice pills” such as “Failure is the greenhouse of success”.

His class, in addition to their regular homework, is given a packet to prepare for:

The CAASPP test. Your probably know it as the California Assessment of Student Performance and Progress. We call it the GASP test because it makes it hard for us to breathe.

Sam in the great American tradition of civil rights says enough. He leads a protest that falters in his class when the principal, Mr. Hill, threatens a 3 day suspension to be put on a student’s permanent record. Sam stays strong and is suspended.

On the first day of his suspension the retired lawyer across the street, Mr. Kalman, urges him to return to school the next day as no hearing was held before the suspension was imposed and tells him to read the U.S. Supreme Court decision of Goss v. Lopez. With the aid of his sister he learns the case sets out the principle that an education is a property right that requires a “fair hearing” when discipline is involved. His older sister, Sadie, captain of the high school debate team will represent him.

Mr. Hill holds a hearing on Sam’s alleged defiant behavior. With the aid of his advocate Sam pleads:

“.... we come to school, we work all day, we go home, we work all night.

Then we wake up and do it all over again. There’s no time to just be a kid.”

The principal say the homework is needed to be number one and he can go to an alternative school if he does not want this school. The suspension is upheld.

A fired up Sadie, having lost her childhood to homework, is intent on restoring Sam’s childhood. They pester Mr. Kalman into representing them on a lawsuit pleading homework is unconstitutional. They succeed and a grand legal adventure begins that had me smiling.

Mr. Kalman plans a class action with Sam as the representative plaintiff. They raise money for the class action using the principle by such methods as preparing and selling essays for other students.

It is an infrequent day I get to call reading about a court case as fun. Little legal fiction is fun. Class Action is an exception. The bright young students and their aged legal adviser are serious but they are not solemn. They are witty and dedicated to, but not self-righteous, about the justice of their cause.

The action is filed and, at a hearing in U.S. Federal Court Judge Otis Wright the Third grants their application to proceed.

On YouTube they get over a million hits. They raise a hundred thousand dollars from online supporters.

I raced through the pages eager to find out if the kids win.

At trial Sam upstages the School Division’s lawyer, Livingston Gulch. After acknowledging he spends a lot of time playing video games Sam states:

“It’s a may-do. After my must-dos get done. Playing video games helps me feel better. If I didn’t have so much homework, I probably wouldn’t need to play them that often.”

A young overachiever, Cindy, is called by the school board. She is hardly dismayed by a couple of hours of homework a day:

“Your Honor,” Cindy Vale says, “if you abolish homework, students like me who are hungry for more challenge will get bored. And I’m afraid we’ll even further behind other countries. Like China.”

A teacher explains outside the courtroom why they are assigning so much homework:

“Because the district is broke. They cut the school year but not the curriculum. They cram so many kids into our classes, we can’t get everything done between eight and three. And because they tie our jobs, our raises, and our retirement to the test scores.”

Sam is somewhat bemused to be the leader of a cause. As with many representative plaintiffs he sees himself as an ordinary guy, here boy, rather than a crusader.

As Sam enters the Ninth Circuit Court of Appeals in San Francisco he sees a sign:

Welcome to Sam Francisco.

Ultimately the Supreme Court is asked to decide the case. Among the questions to be answered by the Court are:

Does the policy of Respondent Los Angeles Unified School District of assigning additional tasks beyond the school day, a.k.a. “homework,” violate the implied privacy rights of the Fourth Amendment to the United States Constitution?

Is the pursuit of happiness by a minor a guaranteed right under the Constitution?

In Washington D.C. Sam proudly leads a protest march of 100,000 kids to the Supreme Court building.

My only regret is professional. The timelines and documents and decisions do not reflect real life. I appreciate the need for a swift progression through the courts of America for dramatic purposes but the journey should have been longer and more difficult. I am sure procedure is but a quibble for non-lawyer readers but I cannot ignore process.

I am sure I have not read a work of legal fiction driven by pre-teenage kids. They have a directness and freshness lost to adults. It was not a surprise to read at the end of the book that the author is a middle school teacher in Los Angeles. Class Action is one of the finalists for the 2019 Harper Lee Prize for Legal Fiction.

What Happened to Florence Kinrade?

In my last post I reviewed Florence Kinrade - Lizzie Borden of the North by Frank Jones but did not go into what happened after the dramatic Coroner’s Inquest in which Florence was very aggressively questioned. This post goes into what happened next and thoughts on the book. There may be spoilers for those who treat the reading of non-fiction real life crime like crime fiction.

With Florence not incriminating herself at the Inquiry and no weapon and no motive and no way to conclusively prove the murderer was not a tramp Florence was never charged.

Florence married Monty (also known in his family as “Rosy”) and they moved to Calgary where he became a lawyer. 

I was astonished when I read that after Monty died in the 1918 Influenza Epidemic that Florence went back on stage singing with the Mildred Perkins’ Pantages Grand Opera Company in the early 1920’s.

I was fascinated that Jones, who started researching this book in the 1980’s, was able to track down almost 80 years after the murder members of the Kinrade and Wright families. He was able to trace the rest of Florence’s life.

It is his conclusion that Florence murdered her sister. The mysterious stranger as killer is always difficult to establish in real life. I explored the issue at depth in my posts on Robert Raymond Cook, the last person hung in Alberta in the early 1960’s.

Florence Kinrade - Lizzie Borden of the North is a great example of the difference between suspicion and proof.

There was enough evidence of “tramp” violence in the area to provide the possibility of a tramp killing Ethel.

Jones rightly discounts the probability of a tramp waiting some time between initially shooting Ethel and then the final shots that killed her based on a medical opinion of an interval between the two series of shots. I wondered about the reliability of that opinion. Even if it can be counted upon no one can eliminate the “tramp” theory.

The unflinching support of her family gave the Crown no assistance. Jones said they closed ranks to avoid losing another daughter. It the likely reason but it is difficult to argue in court parents will cover up the murder of a child by another child.

Were it Florence her planning has little sense. Killing her sister in the family home when Florence was the only person present was bound to bring close scrutiny upon her. She could not have counted on the sloppy police investigation that actually took place. Crime fiction publishers would have hesitated to publish such an improbable plot.

At the end he looks to analyses of Florence’s mental health by modern psychiatrists who, as is wont to happen with psychiatrists especially when they cannot talk to the patient and are reviewing notes, reach different conclusions. Was she a “moral imbecile” the description of that time for what is popularly called a psychopath?

It is a good book. I had never heard of Florence Kinrade. There is a mini-series to be made of this “unsolved” murder. The recounting of the inquest is gripping. The story of Florence’s life after murder did not flow as well. The analysis of the evidence is logical and well thought out. While the allusion to Lizzie Borden is plausible there is a much more interesting comparison to Scarlett O’Hara from Gone With the Wind. I found the subtitle involving Borden distracting and would have preferred it was not there.

It was sad to read the manuscript lay for decades on the shelves of the University of Toronto Press. It deserved to be published long ago.

****

Jones, Frank - (2019) - Florence Kinrade - Lizzie Borden of the North

Florence Kinrade - Lizzie Borden of the North by Frank Jones

Florence Kinrade - Lizzie Borden of the North by Frank Jones - The Kinrade family was a respectable, upper middle class family in the booming Hamilton of 1909. On February 25 Ethel is shot and killed in the family home. Her sister Florence, the only other family member in the home at the time, reports a tramp wearing a slouch hat robbed her and shot Ethel. Florence’s story is somewhat disjointed.

Mainly because of the family’s social prominence, the father Tom Kinrade is an esteemed educator and real estate developer,  there is no thorough examination of the house and yard. The family returns to live in the home that night. 

The initial police interview of Florence is cut short by Tom who insists she has been questioned enough for the day.

Led by the Hamilton Spectator newspaper there is an immediate outcry against the “tramps” plaguing the city. Tramps have been a nuisance for some time knocking on doors and seeking food. There has been the occasional attack by a tramp. 

While the Spectator is fulminating against the “tramp menace” police detectives are having doubts about Florence’s story. Her subsequent statements differ significantly from her first statement though some of the variance is attributed to “female hysteria”.

In Florence’s story a mysterious stranger has managed to enter and leave the house unnoticed in the busy neighbourhood. He has shot Ethel though he received the money he sought. He has waited for some minutes for Florence to give him the money after shooting Ethel seven times. She has not noticed Ethel laying on the floor while she twice passed through the room.

And then it is revealed that the 23 year old Florence has been leading a double life. The Hamilton Methodist choir soloist had been performing on the stage in Virginia, the family is unwilling to acknowledge it was vaudeville, under the stage name of Mildred Dale

After a bumbling initial investigation the Government of Ontario turns to George Tate Blackstock Q.C., “a barrister with the reputation of a pit bull”, to represent the Crown at the inquest. 

Her father reveals she was seeing an American actor, James Gordon Baum. At the same time she is engaged in Canada to Claire Montrose “Monty” Wright, a Methodist student minister. The family had denied her permission to return to the stage.

Florence is aggressively questioned over three long sessions at the coroner’s inquest into the death of Ethel.

The questioning was unfair and conflicted with her right to silence as a murder suspect.

There is an intense court application seeking, amongst other relief, to end the Inquest.

Through the long hours of questioning no matter how her faltering her memory or incredible her recollections Florence admits to no wrongdoing.

She is followed by Jimmy Baum who is that rare witness. He is simply and completely honest. Though Florence has abruptly ended their engagement he will speak no ill of her.

Few moments in real life court are electric but Jimmy provided one with his closing words:

I should like to tell the coroner and the jurymen that if they think that this girl committed this crime, they’re wrong. If they catch the party who chased this girl from Portsmouth, they will get the one who killed her sister. Tain’t this li’l girl.

A reader cannot help but wonder what her Canadian fiance, Monty, felt at learning, while engaged to Florence, that she had loved another man to the point of engagement.

Blackstock explores repeatedly the contradictions, the inconsistencies and the implausibilities of Florence’s evidence. He establishes she is unreliable, even untruthful. Yet he fails to gain any admission that would be evidence she murdered Ethel. As in the forty plus years I have been a lawyer I have yet to see a Perry Mason moment where the witness says “I did it!”

My next post, to avoid spoilers in this review, will discuss what happened after the inquest.

Buried by Ruth Chorney

Buried by Ruth Chorney - On Canada Day it feels right to post a review of a mystery set in Canada Even better this mystery takes place in Saskatchewan. Tera Jones McAllen is being interviewed in prison having been convicted by a jury of murdering her husband, Tom. Yet no body has been found. There is no evidence he has actually been killed since he went missing after deer hunting with a friend.

Buried is set in and around the fictional towns of Barkley and Deer Creek, the real life towns of Kelvington and Rose Valley based upon the location of Barkley. The locale means the book takes place in Saskatchewan just over an hour east of Melfort.

Tera and Tom meet at a community Boxing Day dance in 1991 when she is 17 and he is 22. By the end of the evening they are a couple. She is swept away by the tall, dark and handsome farmer. 

Her best friend, Allie, is wary of Tom mainly because of a troubled family history but Tera will not be swayed.

Her plans of going to university change when she becomes pregnant. Her father Arthur, the local pharmacist, and her mother Shelley, in a wheelchair with severe MS, receive the news gracefully. They want her to do what she thinks best and not feel pushed in any direction.

Tera is in love and marries Tom in the summer of 1992 and becomes a farm wife.

Like many Tom is a workaholic. A combined grain and cattle operation with no hired man is demanding.

Tera is pushed into doing farm work and comes to enjoy working with the cattle. She relishes the challenges of calving in mid-winter. Helping deliver a calf or saving a struggling newborn is intensely satisfying.

Life becomes hard as Tom’s hard drinking spirals into alcoholism. When done his day’s work on the farm he usually heads to the hotel in town.

Tera copes with Tom. Their marriage gradually disintegrates. By the time their sons leave home after high school Tera and Tom are just sharing a house.

And then over 20 years into their marriage Tom disappears after a hunting trip. He has returned home but there is no evidence of what happened on his return.

It is late in the book, a slender volume of 150 pages, that we learn why she was convicted.

The author, writing about the people and area in which she is resident, vividly depicts life in our part of rural Saskatchewan. They could be my friends and neighbours. In reading I was reminded of the Small Town Saskatchewan Mysteries of Nelson Brunanski set an hour west of Melfort in the fictional Crooked Lake, clearly the real life Wakaw.

Ruth has written well about Tera’s life. I wish she had fleshed out the characters especially Tom. It is Tera’s story but there was more that could have told about Tom. She is brilliant, even lyrical, in describing the joys and difficulties of life on the farm in Saskatchewan. The solution to the mystery was clever.