Kafka Makes His Canadian Court Debut

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It really is the small things in life that bring me a tremendous amount of pleasure. One of these things is when anything literary or linguistic makes its way into a court of law, which it did recently in New Brunswick, that scandalous little province always punching above its weight class.

In an article titled “Just what does ‘Kafkaesque’ mean? A New Brunswick judge weighs in,” Canadian Press journalist Rob Roberts reported from Fredericton about Paul Lynch, a local lab janitor, who was nailed for his 7th DUI-related offense in 2015. According to Roberts, “Because of his prior convictions, he [Lynch] was immediately remanded pending sentencing, and later sentenced to six months in jail.”

Here’s the problem: Nobody came to his hearing and he was never able to make a phone call, so when he didn’t show up for work the next day – or the 180 days after that – his employer fired him.

Seem logical and by the book? Well, not if you have a cursory understanding of Franz Kafka. Per the article, “In a new ruling, Justice Hugh McLellan defines Kafkaesque as the struggle ‘against rules and forces that cannot be understood.'”

What the Franz?

“Labour adjudicator John McEvoy ordered the health authority to give him his job back, in a decision that declared ‘no one . . . should face the Kafka-like situation faced by Lynch in respect of his inability to contact his employer.'”

While a little more out there than the “Oxford commagate” debacle in a Maine court case earlier this year, it’s interesting to note that Justice McLellan even invokes the legendary Prague, Bohemia, Austro-Hungarian (now Czech Republic) writer’s name in the first place, as notable publications like The New York Times and The Atlantic have published pieces in the recent past asking whether “Kakaesque” is “‘a word so overused it has lost all meaning?'”

Perhaps that’s why younger readers now say Murakamiesque? Should you need any clarification of what this adjective means, definitely pick up The Elephant Vanishes, though A Wild Sheep Chase and The Wind-up Bird Chronicle would suffice as well.

Literature aside, how can a Canadian citizen be arrested, convicted and then essentially forgotten about – and all without a single phone call?

I suppose you could ask The Globe and Mail (“Here’s how to fix a broken system“),  The National Post (“No faith in our justice system“), The Huff Post (“Canada Doesn’t Need To Fix Its Justice System. It Needs a New One“), or The Georgia Straight (“The Canadian justice system is so broken it’s criminal“).

Then again, if you wanted a slightly more objective POV, you could refer to last year’s report from the Macdonald-Laurier Institute, which graded provinces and territories in five categories: public safety, victims support, efficiency, fairness and access to justice, and costs and resources. Benjamin Perrin, a UBC professor of law, was one of the report’s authors.

How did Canada’s most populous province fair in the report card assessment? We suck, bottom third of the provinces, and an overall rating of a C+. Why, you ask? According to one CBC report by Alison Crawford, “Perrin points to how police can directly lay charges in Ontario.” That’s right. They don’t need the OK from the Crown beforehand (like in Quebec), nor do they even need the consent of an alleged victim.

As a result, says Mr. Perrin, “[T]here’s an awful lot of people being dragged through the Ontario criminal justice system who are ultimately having their charges stayed, withdrawn or acquitted. That is costing millions of dollars to the province but it’s also plugging up the system so that really important cases don’t make it through..”

That fact is scary enough, but what’s even more frightening is that Canada ranked 12th among 113 countries surveyed in 2016, according to the World Justice Project Rule of Law Index, “the world’s leading source for original, independent data on the rule of law.”

So, Mr. Lynch, if you think you had a Kafka-/Murakamiesque experience going through the justice system here in Canada, imagine what it would have been like in bottom-of-the-heap No. 113, Venezuela, 18 spots below Sierra-freaking-Leone and two spots down from Af-oh-my-ghanistan.

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