To a Mouse
By Robert Burns 
​On Turning her up in her Nest, with the Plough, November 1785.

Wee, sleeket, cowran, tim’rous beastie,

O, what a panic’s in thy breastie!

Thou need na start awa sae hasty,

          Wi’ bickerin brattle!

I wad be laith to rin an’ chase thee

          Wi’ murd’ring pattle!


I’m truly sorry Man’s dominion

Has broken Nature’s social union,

An’ justifies that ill opinion,

          Which makes thee startle,

At me, thy poor, earth-born companion,

          An’ fellow-mortal!


I doubt na, whyles, but thou may thieve;

What then? poor beastie, thou maun live!

A daimen-icker in a thrave

          ’S a sma’ request:

I’ll get a blessin wi’ the lave,

          An’ never miss ’t!


Thy wee-bit housie, too, in ruin!

It’s silly wa’s the win’s are strewin!

An’ naething, now, to big a new ane,

          O’ foggage green!

An’ bleak December’s winds ensuin,

          Baith snell an’ keen!


Thou saw the fields laid bare an’ waste,

An’ weary Winter comin fast,

An’ cozie here, beneath the blast,

          Thou thought to dwell,

Till crash! the cruel coulter past

          Out thro’ thy cell.


That wee-bit heap o’ leaves an’ stibble

Has cost thee monie a weary nibble!

Now thou’s turn’d out, for a’ thy trouble,

          But house or hald,

To thole the Winter’s sleety dribble,

          An’ cranreuch cauld!


But Mousie, thou art no thy-lane,

In proving foresight may be vain:

The best laid schemes o’ Mice an’ Men

          Gang aft agley,

An’ lea’e us nought but grief an’ pain,

          For promis’d joy!


Still, thou art blest, compar’d wi’ me!

The present only toucheth thee:

But Och! I backward cast my e’e,

          On prospects drear!

An’ forward tho’ I canna see,

          I guess an’ fear!

Justice of the Peace K.W. Bouchard’s recent decision in  R. v. B.H., [2025] C.C.S. No. 2571 is a meaningful step toward a culturally responsive justice system and confirms the judiciaries discretion to use a mechanism in support of Indigenous traditions while leaving legal safeguards intact.   
 
The accused, Indigenous person, requested a Bail Circle Format (BCF) for their Judicial Interim Release (JIR). This included a circle layout with family and an elder, but no drumming or smudging.

The court acknowledged that requiring a bail planning conference created an unintended delay, potentially prejudicing B.H. The Justice stated that a presiding justice in remand court should have the authority to schedule JIR proceedings with cultural accommodations directly, without an intermediate step.

By relying on s. 11(c) of the Canadian Charter of Rights and Freedoms: s.11(c),  s.493.2, s.515, s.518, s.518(1)(b), s.518(1)(e), s.518(1)(a), s.537, s.551, s.540(1)(a) of the Criminal Code of Canada and the United Nations Declaration on the Rights of Indigenous Peoples Act to which Canada assented in 2021, the court confirmed it had statutory and common law authority to conduct informal inquiries, which includes using culturally responsive formats like BCF—similar to using phone or video formats. It interpreted s.518(1)(a) of the Criminal Code to permit taking unsworn testimony and incorporating Indigenous practices that don't align with typical adversarial norms.  However, if the accused or any witness chooses to speak in the BCF, the Crown retains the right to cross-examine—whether the testimony is sworn or not. This is grounded in both procedural fairness and statutory entitlement (s.518(1)(b)).
 
The Court proposed a two-stage approach. At stage one an informal BCF is heard  in which all participants speak freely and respectfully, without being sworn in.  At stage two the Court transitions back to the standard court format, with witnesses sworn in and opportunities for Defence to adopt or expand on the testimony, followed by Crown cross-examination.

By adopting this procedure Indigenous accused benefit from more respectful cultural practices and the Court is live to the ongoing reconciliation journey.

It is easy to be cynical about the rule of law, especially with respect to international institutions, treaties and agreements.  Sometimes, they get it right though.  The International Court of Justice's track record is encouraging, especially its January 26, 2024, overwhelming majority ruling on South Africa's proceedings against Israel under the Convention on the Prevention and Punishment of the Crime of Genocide. 

Sadly, the ICJ has no enforcement power.  It must rely on member states to create the conditions under which its rulings can be implemented.  Yet again, Canada has failed to help.  Trudeau's neglect to call for an immediate ceasefire in Gaza is a national disgrace.  Smoke another one Justin!  And get out of the House! 

Jagmeet Singh had the courage to call for a ceasefire: the only honourable position.  The one that might stop the cruelty being perpetrated by Israel and stem the rise of Islamophobia in Canada.

Gabor Mate's new book, The Myth of Normal - Trauma, Illness & Healing in a Toxic Culture, is a "must-read" especially for  legal professionals.  He demonstrates that most behavioural issues and struggles are born from an overbearing and limited societal standard, that either creates trauma, ignores it's effects, or both.  He shows that a compassionate approach is necessary to cure injustice and suffering, and to create a more healthy, nurturing and healthy culture. 

In the legal context, this would  mean considering the underlying traumas behind criminal, unethical or unhealthy conduct.  The current "trauma-punishing-and-inducing system" would give rise to an empathy and compassion based system, where rehabilitation and healing are the aim, rather than judgment and punishment.  He quotes Métis scholar, former inmate and Governor General's Academic Medal winner Jesse Thistle:

All us criminals start out as normal people just like anyone else but then things happen in life that tear us apart that make us into something capable of hurting other people. That's all any of the darkness really is.  Love gone bad.  We are just broken-hearted people hurt by life.

And psychologist and former prison guard, Dr. Nneka Jones Tapia who "as a Black woman... knows institutionalized racial trauma well" :

We tend to reduce people to their behaviour: "You're a murderer, you're a robber, you're a thief." But we are not our worst behaviour. I have had the blessing to see that everyone who is incarcerated has strengths and they have the capability of loving, if only we gave them the opportunity.  It's not just people that need the healing. It's the system that has to be indicted and transformed.

It's nice to see the Court of Appeal for Ontario continues to recognize the presumption of innocence as the cornerstone of the Canadian criminal justice system; and define the reasonable person as mindful and aware of the propensity to be swept away by emotion. 

In ​​R. v. Fasoranti [2021] ONCA 138, the court delivered a thoughtful and thorough judgment on the law of bail and "the right of any person charged with an offence… not to be denied reasonable bail without just cause" under s. 11(e) of the Canadian Charter of Rights and Freedoms.  The Court summarized at paragraph 11:

The Supreme Court has reminded judges that "[a] recognizance with sureties is one of the most onerous forms of release": R. v. Antic, [2017] 1 S.C.R. 509, [2017] S.C.J. No. 27, 2017 SCC 27, at para. 67. Bail judges must bear in mind that "pre-trial detention is extraordinary in our system of criminal justice": R. v. Morales, [1992] 3 S.C.R. 711, [1992] S.C.J. No. 98, at p. 728 S.C.R. Further, "the release of accused persons is the cardinal rule and detention, the exception": R. v. St-Cloud, [2015] 2 S.C.R. 328, [2015] S.C.J. No. 27, 2015 SCC 27, at para. 70.

In releasing the accused, a two-thirds court concluded at paragraph 49:

If a reasonably thoughtful person, one who is not prone to emotional reactions but understands our society’s fundamental values, was informed of the circumstances of this case — namely, that this applicant was released on bail, with the new plan, proposed sureties and proposed conditions — there is no doubt that their confidence...  would be maintained.

The Court set the standard of behavior and characteristics expected from the ordinary and careful person:  Someone who believes in the presumption of innocence; has common sense; possesses average intelligence; abhors injustice and unfair punishment*; and exercises an appropriate degree of care and attention. 

​*The unfortunate term we have yet to fully discard.   Corrective measures, rehabiltation, therapy would all be more congruous with the contemporary understanding of the real causes and deterrents to crime and unhealthy behaviour.