Along with 4 million other Canadians, I watched the Tragically Hip end their tour with a nationally televised concert on August 20, 2016 from their hometown of Kingston, Ontario.
After learning of the news that the Hip’s poetic songwriter Gord Downie had brain cancer, I spent much of the summer of 2016 listening to the Hip. Many of the songs touched me deeply but as a criminal law professor two of them particularly stuck out. 38 Years Old deals with an 1972 prison escape from Millhaven Penitentiary and Wheat Kings explores David Milgaard’s wrongful conviction and its aftermath.
Shortly after the Kingston concert, I started writing the article Reform and Resistance: Criminal Justice and the Tragically Hip recently published in a special edition of the Manitoba Law Journal. The article allowed me to re-visit issues- mandatory sentences and wrongful convictions- that I had previously written about. More importantly, it allowed me to think about criminal law in a different and more open way. It gave me a chance to borrow the words of Mohawk elder Janice Longboat “to think until I could feel”.
(To learn more about my analysis, read the full paper)
38 Years Old and Mandatory Punishment
38 Years Old is a sombre song about a 1972 prison break from Millhaven. The protagonist is “Mike” who has been in jail since he was 20 years old and had “never kissed a girl”. He killed the man who had raped his sister. He escapes and flees to his home only to be recaptured and returned to Millhaven which was an extremely violent prison opened prematurely to deal with the results of the infamous 1971 Kingston Penitentiary riot.
In the article, I examine why Mike likely would not have a defence and how this reveals the limited ability of criminal law to determine blameworthiness. I also examine how Mike at the time would have been sentenced to death sentence for imprisonment, but have benefited by executive commutation of that mandatory sentence. Today the death sentence would not be available. It has been replaced by a mandatory sentence of life imprisonment for murder. All murders. Progress of a sort.
The Mike of 38 Years Old is as realistic a hypothetical offender as the one recently used by the Court in Lloyd to strike down a mandatory sentence for drug trafficking. But the Charter would probably not benefit Mike. The Supreme Court has already upheld mandatory life imprisonment under the Charter. (Disclosure, I unsuccessfully argued for the Canadian Civil Liberties Association in R v Latimer in favour of justified exemptions from mandatory sentences).
More recently the Truth and Reconciliation Commission has recommended that judges should be able to justify exemptions from all mandatory sentences and all mandatory restrictions on conditional sentences. Listening to 38 Years Old affirmed for me that this is a good idea and that the federal government should adopt escape hatches from all mandatory sentences.
So that is one law professor and frustrated law reformer’s take on 38 Years Old. But the Hip are not making that argument so part of the article tries to understand their message from the perspective of critical legal pluralism including the creation of belief systems that are alternatives to the law.
The message that come through for me is the importance of family and enduring bad times. When Mike escapes, he flees to his home. The song tells us that the family home has the “same pattern on the table, same clock on the wall. Been one seat empty eighteen years in all.”
Some historical research suggests that one of the 14 real escapees from Millhaven, like Mike, was captured at his parents’ home. The press speculated he may have returned to his Niagara home to cross the border to the US. Perhaps he simply wanted to see his family. The lesson I take from this is that even under a reformed criminal law, punishment remains something that must be endured and resisted by offenders and their families.
True to its rock roots, 38 Years Old allows us even for 4 minutes to imagine ourselves in the shoes of the offender. Bruce Springsteen has done important work in humanizing offenders and so has the Hip.
Wheat Kings is one of the Hip’s most popular songs. Like Springsteen’s Born in the USA, however, it can be misinterpreted by casual listeners.
It is vitally important to understand that Wheat Kings was released in 1992, the same year that the Supreme Court refused to declare David Milgaard innocent while recognizing that his conviction was a miscarriage of justice.
The Court was not convinced on either a balance of probabilities or beyond a reasonable doubt that Milgaard was innocent. The Hip seemed to have a different opinion.
Wheat Kings recognized that wrongful convictions were “nothing new” at a time when the Canadian criminal justice system was still reluctant to admit it made mistakes. Interestingly in light of Gord Downie’s subsequent role in championing Indigenous issues, two of Canada’s better known wrongful convictions in 1992 involved Indigenous accused: Donald Marshall Jr. and Wilson Nepoose.
Wheat Kings deals with many still unaddressed issues about wrongful convictions. In its reference to “our Parents Prime Ministers” it evokes current controversies over the role of elected politicians in granting those who claim to be wrongfully convicted new trials and appeals. In its reference to “no one is interested in something you didn’t do”, it raises the issue of whether courts should make formal declarations of innocence.
Even after he was released from prison, David Milgaard suffered stigma both because of the Supreme Court’s failure to find him innocent and because the Saskatchewan Crown placed him in limbo by using a prosecutorial stay of proceedings. My article details how David Milgaard continued to fight in the courts to have his innocence recognized. He brought two civil actions but to no avail.
Milgaard’s innocence was only officially recognized when in 1997 advances in DNA testing revealed that Larry Fisher and not Milgaard was the real killer of Saskatoon nurse Gail Miller.
Although Wheat Kings can be interpreted as supporting various reforms of the law surrounding wrongful convictions, it, like 38 Years Old, also affirms the importance of resisting the law.
The Hip was prepared in 1992 to declare Milgaard innocent at a time when the Supreme Court was not prepared to do so. In the article, I relate this interpretation of Wheat Kings to work on legal pluralism by a number of scholars including the late Robert Cover and the late Rod Macdonald. The article suggests that it is a good thing that alternative discourses whether they be in the media, science or art can exonerate people even when the justice system is unwilling to do so.
Although 38 Years Old and Wheat Kings are only 4 minute songs, we can learn much from them. Some of their wisdom relates the need to reform criminal justice in an attempt to minimize the human suffering depicted in the songs.
Some of the wisdom is an important reminder for those of us who live in the law, that the law is not everything. It is sometimes necessary to look outside of the law for strength to resist, mitigate and endure the inevitable errors and harms that any legal system will impose.
This is my 28th year of teaching criminal law, but during the summer and fall of 2016, I learned much about criminal justice by listening to Gord Downie and the Hip with my mind and with my heart.