may goodness and mercy follow you all the days of your life

Most of us, at one time or another (providing we live long enough) have done something which we knew might be considered either morally or legally wrong. Whether it is speeding or smoking a joint to cheating on a spouse. Most of us never get caught, let alone punished for all our transgressions. Some of us have gotten nabbed but have had the good fortune to experience a little mercy and compassion at hands of a police officer, a judge or a wife, and walked away relatively unscathed - and hopefully even a little older and a little wiser from the experience. But not everyone catches a little mercy and compassion when it is most needed. Nor can everyone dig themselves back from the brink even when they do experience it.

One of the last cases I worked on during my time as a criminal law clerk concerned a 12 year old boy who stood accused of three counts of robbery. One the surface the charges were very serious, and because of the gravity of the charges and his age, he could not be released from detention until his legal guardian appeared in court so that a judge could set conditions for his release.

The boy had spent three weeks in detention from the time of his arrest. Normally, his parents or legal guardian would appear in court the day following his arrest and a justice would hear the charges and decide if detention was warranted, and if not, set conditions for bail. One of the crown prosecutors called my law office looking for a regular defense counsel for this young boy.

The Crown counsel was moved by the plight of this young boy to try to find him a regular lawyer in the hopes of convincing his legal guardian, the boy’s grandmother, to appear in court, so the child's release could be arranged. Even if we could not convince his grandmother to appear in court, we as regular counsel, could make an emergency plea in family court to have the Children’s Aid Society take temporary custody of the child. Either way, he would be released.

Once a synopsis of the charges was read there was no way any judge would order the detention of this child until trial, and at the time, a criminal trial in Toronto could take up to a year to be held. The crown counsel faxed over a copy of the police disclosure in the hopes of swaying me, and by extension, one of the lawyers to represent the child.

The police disclosure read that at lunchtime in the school playground the accused approached three other boys who were each eating a bag of potato chips. The accused approached the victims and demanded some chips from each of them. They refused. Then it was alleged that the accused reached in and grabbed by force chips from each of the bags of the boys. The three boys immediately ran with their bags of potato chips to the school office and told their story to the principal. The principal called the police as was his directive according to the school’s zero tolerance policy. And the rest, as they say, is history.

The little boy had been abandoned by his mother who was a known drug addict and his father had died from aids while serving a long term jail sentence. He came to live with his maternal grandmother who was a religious fundamentalist. When she heard he had been arrested by the police for three counts of robbery she washed her hands of him. She claimed he was a demon spawn from the beginning and this was her proof. And for the record, potato chips were the devil’s food. It was a conversation I have yet to forget, and never have I so despaired of another human being like I did of this woman.

I cannot tell you how the case was resolved and if the boy went on to be a productive member of society. I left the law firm before the matter was resolved but my experience suggests it highly improbable. Too many strikes against him with so little love and compassion always equal a bad end.

But I think about him all the time when I read about young accused, charged on the surface with very serious crimes, just like this group of 12 to 13 year olds alleged offenders – taken from a Toronto Star report:

Seven boys charged with sexually assaulting four girls at a northwest Toronto middle school made their first court appearance today, with two of their parents complaining that their children are stressed out from the charges, which they call exaggerated.

"He's losing his hair. He can't sleep," said the mother of one 13-year-old boy facing two sexual assault charges.

"He said, 'Mom, we were just playing around. I hugged her around the waist,' " the mother told reporters.

Eight boys, 12 and 13, are accused of holding and groping four 13-year-old girls on Smithfield Middle School property in northwest Toronto during an after hours basketball game on Sept. 25. All are students at the school.

And I think that somewhere between the strict adherence of dotting every ‘I’ and the crossing of every ‘T’ of the law and the application of common sense; there has to be a balance. I just despair of every finding it.