At the Superior Court in Barrie, Ont., this past February, a 911 call recorded two-and-a-half years earlier was played back to a hushed chamber.
Kelly Mortley’s frantic voice could only just be made out through the static. “Please, you’re killing him!” The scratchy recording was chilling, as if it was all happening right there, right then. “Please, please, please stop!” she calls out. “He’s just an old man.”
At the time of the attack, 9:35 p.m. on July 6, 2012, Mortley had been waiting in the parking lot behind Dino’s Fresh Food Deli in downtown Midland, Ont., for her 20-year-old son Randy, who worked there part time. An argument had broken out between two young men and an older man. It quickly turned violent.
The victim of the beating, Andrew Mixemong, was 59 years old, a short teddy bear of a man, nicknamed “Fudd” for his resemblance to the cartoon character Elmer Fudd. Once formidable, Mixemong was living on disability at the time of the attack, afflicted with diabetes and an array of other ailments.
His assailants, Jessy Herlichka and Paul McClung, were both 26, fit and well muscled from physical labour, sporting shaved heads and angry tattoos. Herlichka, who stands well over six feet tall to Mixemong’s five foot five, inflicted most of the damage.
Kelly and Randy watched, horrified, as Herlichka proceeded to brutally beat and kick Mixemong while McClung shouted encouragement and threatened anyone who tried to intervene. “Nice hit,” McClung said. “Go for it, do it again.” Kelly Mortley made her 911 call as she pleaded with Herlichka and McClung to relent.
They didn’t stop until Mixemong was inert on the pavement in a pool of blood. Paramedics arrived, and Mixemong was transported to Georgian Bay General Hospital, a 10-minute ambulance trip away. He died five hours later. Herlichka and McClung were charged with second-degree murder.
When Mortley’s 911 recording ended, the courtroom became eerily quiet. The Mixemong family muffled their sobs. The jurors sat with heads bowed. Superior Court Justice Alfred Stong adjusted his reading glasses and shuffled some papers. In the prisoner dock, McClung gazed impassively at the ceiling, and Herlichka fidgeted and studied his shoes.
Sam Goldstein, one of Herlichka’s two attorneys, turned to the court. Giving evidence this February morning was Randy Mortley. His mother’s 911 call had been replayed at Goldstein’s request to see how it, and security video from a camera above Dino’s back door, agreed with Randy’s own recollection of events.
Randy Mortley’s testimony was delivered remotely by video relay from Sweden, where he had gone to play for the Canadian deaf hockey team. He told Goldstein that he flung himself on Herlichka to try to stop the beating but was warned off by McClung, who told him, “Dawg, get your hands off my boy or I’ll f—ing kill you.”
Goldstein’s interrogation was abrasive. It was, to be sure, his job to cast doubt on the accuracy of Randy’s recollection of the events of that July evening, and he did so with terrier-like relentlessness. Mortley seemed agitated, frustrated, often interrupting him, talking over his questions trying to say his piece. When Goldstein demanded to know if Herlichka was or was not wearing a T-shirt, Mortley finally lost all patience. “Who cares about a T-shirt,” he blurted out. “What is this all about, anyway?”
The question dropped like a stone into a still pond. Goldstein’s interrogation abruptly halted. Stong looked quizzically at the bewildered defence attorney, who glanced at his co-counsel, Robert Richardson. Several jurors looked to each other — nods, shrugs and raised eyebrows seeming to suggest that they too thought that, weeks into the trial, the really important questions had been lost amid irrelevant details.
What was this really about? Confronted by a shocking act of violence, the human response is to seek to make sense of it, to try to understand the underlying cause. Why did this happen?
As a journalist with a decades-long interest in First Nations issues, I found it impossible not to immediately suspect racism. Herlichka and McClung are white. Their victim was Aboriginal, a Potawatomi man from the Beausoleil First Nation reserve on Christian Island, Ont. We know all too well of the many interracial outrages this country has experienced: residential school abuse, treaty cheating, Ipperwash, Oka, Attawapiskat, the Highway of Tears and so many more.
Did Andrew Mixemong’s name belong on this heartbreaking list?
At first, I assumed that it did. Given the basic facts, you might make the same assumption. But then you, like me, would be in danger of missing the real point — a hard truth that goes deeper and is no less troubling.
According to the parade of witnesses at the trial, on July 6, 2012, Jessy Herlichka of Midland took a break from his job as a roofer. Herlichka, Mercy Maitland (his girlfriend of the moment) and Maitland’s neighbour were hanging out at Maitland’s apartment in a house in Midland, a town of about 16,000 perched on the southern shore of Georgian Bay, 160 kilometres north of Toronto.
The trio had been passing the time in lawn chairs in the driveway, drinking beer and vodka and downing Percocets and OxyContin that Maitland had purchased for $10 a pop. Percocets and “oxys” are prescription painkillers, among the most widely abused prescription drugs in North America.
At some point in the afternoon, Paul McClung happened by. Herlichka had known him since childhood. They weren’t exactly friends, but they travelled in the same crowd. McClung joined the party, and more vodka was consumed, possibly some marijuana as well. There was a buzz in the air. Maitland had been trading insults by text message with Herlichka’s common-law spouse, Kelly-Dawn Marsden, from whom Herlichka was temporarily estranged. Marsden was threatening to come over and beat up her rival. Maitland was excited. A cat fight. A little action. It sure beat swatting mosquitoes and watching the grass grow.
The grudge match never materialized, however, and sometime after 9 p.m. the party shifted to the alley at the back of the house. McClung and Herlichka crossed the lane to the rear entrance of Dino’s Fresh Food Deli, a main-street institution. They wanted to get a snack, but Dino’s was closed, and manager Lorraine Ashkanese wasn’t about to reopen for a couple of rowdy drunks.
Herlichka got angry and kicked up a fuss. Ashkanese called out to her partner, Andrew Mixemong, who was waiting in the parking lot to drive her home. “Honey, Andy,” she shouted, “I think I could be having some trouble over here!” Mixemong got out of his car and confronted Herlichka, who poured beer over his head. Push came to shove, and then all hell broke loose.
Ontario’s chief forensic pathologist, Dr. Michael Pollanen, would later catalogue the damage for the court. Mixemong’s eyes were blackened. His nose was torn. His lower jaw was snapped in two. His upper jaw had been broken free of his skull. Facial bones were fractured. Broken ribs pierced his chest wall and perforated his abdomen. Internal organs suffered blunt-force trauma “consistent with being punched and stomped,” causing internal bleeding that led to his death.
The sheer ferocity of the attack suggested that racial hatred was a motive. Seeking to understand a hate crime against U.S. Muslims last February, the New Yorker magazine quoted University of North Carolina law professor Joseph E. Kennedy, who observed, “It can be easier to commit violence against someone who is an other. Prejudice is one of the easiest ways to dehumanize someone.” And of course, racial prejudice isn’t born in a vacuum. History provides ample evidence of hostility between First Nations and settlers in the Midland area.
Midland and the nearby cities of Barrie and Orillia form a triangle that roughly overlays what is still called Huronia, a patch of rolling sandy farmland and maple bush between Lake Simcoe and Georgian Bay on Lake Huron. The Hurons (or Wendat) were the Aboriginal inhabitants of this land, but the Iroquois drove them out in 1650.
There is still a sizable First Nations population in the area. Of Midland’s 16,572 residents, 1,415 people self-identify as “Indian” or Métis, almost nine percent of the population. (Across Canada, the average is 4.3 percent.) Most of these people, however, are not Huron, but Ojibwa, Odawa and Potawatomi, collectively known as the Council of Three Fires. Traditionally from the northeastern shores of Lake Huron and Lake Superior, these tribes migrated south in the late 1700s and early 1800s to fill the vacuum left by the Hurons, who had fled to Quebec, and the Iroquois, who had retreated to their traditional territory south of Lake Erie, just as European settlers began to migrate north from Toronto.
In the 1830s, the nomadic northern migrants were induced to settle on a 4,000-hectare parcel of farmland centred on the town of Coldwater, a fraction of the land they had traditionally roamed. The area surrounding Coldwater was actually quite fertile and strategically situated on the fastest, safest route from Toronto to Georgian Bay and all points west. The new Aboriginal settlement flourished.
But soon the inevitable happened. So strategic and fertile was the land that it was deemed more fit for white settlement than for a First Nations reserve. Within a dozen years, the Three Fires residents of Coldwater were split up and shifted to a 650-hectare reserve at Rama near Orillia and to the 1,100-hectare Beausoleil Island in Georgian Bay. If you’re doing the math, the Coldwater inhabitants lost about half of their original land, and half of the land they did receive was infertile. History records that the jealousy of white settlers at the runaway success of their Native neighbours played a critical role in these events. This jealousy would never completely dissipate.
The Beausoleil Island group was later, in 1856, shifted again, to Christian Island, about 15 kilometres west. This group included Andrew Mixemong’s ancestors. Ironically, Christian Island is where the last remnant of the Huron Nation huddled in 1649, desperate to escape the marauding Iroquois coming from the south. Ten thousand of them hid out there. The land was so desperately poor that the Huron, who were consummate farmers, couldn’t produce enough to feed themselves. Nine thousand of their number starved to death, with nothing to eat but acorns and, in extremis, each other. This was the land the Canadian government chose, 200 years later, to reserve for the uprooted Three Fires people.
If the sandy soil of the Christian Island reserve doesn’t easily produce food crops, it does nourish the bitter fruit of resentment, and resentment is a hardy perennial. The treachery of being ousted from Coldwater was never forgotten. Accordingly, in 1991, the descendants of the Three Fires people sued the federal government for compensation, and in 2011 successfully won a $307-million settlement, the largest single land-claim settlement to date in Canada.
For Andrew Mixemong’s people, it was a richly deserved reversal of a historical injustice, but not everyone in the region saw it that way. As in the 1830s, many white folk rankled at the good fortune of the Native population, fuel to the smouldering fire of resentment over the benefits for status Indians on reserves: no taxes, free housing and medical care, free post-secondary education, hunting and fishing rights. It is easy to imagine, to assume, that for the likes of Herlichka and McClung, the parade of brand-new pickup trucks on the Christian Island ferry, the brisk sales of new home appliances and the mini-construction boom that followed on the heels of the 2011 settlement might have been provocative. Their tax dollars, after all. No such windfall was ever coming their way.
The human geography in the courtroom during the Mixemong trial seemed to emphasize the racial divide. From my first visits to listen to preliminary hearings in October 2013, the courtroom gallery was split down the middle, with First Nations members from Christian Island predominantly on one side, and white family members and friends of the two accused on the other. On the Mixemong side, there were outfits of buckskin and beads, feathered earrings and dream-catcher pendants. On the other side, Harley-Davidson T-shirts and cowboy boots, hoodies and saggy jeans.
The personal appearance of the accused contributed to the idea that this was a hate crime. In their mug shots, both young men sport the skinhead look associated with white supremacists. Both are liberally tattooed with aggressive slogans and images. Herlichka has a revolver tattooed on his right shoulder and the words “Death is promised” across his chest. McClung’s tattoos include tears imprinted at the corners of his eyes, which can signify the number of years their owner has spent in prison, or the loss of a loved one or fellow gang member, or the fact that the bearer has killed someone. On his upper arm, McClung flaunts a swastika.
The racial divide remained more or less intact, inside and outside the courtroom, as the trial proper began last Jan. 23. In the corridors during breaks, the Native and non-Native camps staked out separate benches where they would congregate. One knot of spectators would speak English; the other a mix of English and Ojibwa.
Race occasionally reared its head in the formal proceedings as well. The lawyers for both sides seemed to forget the names of the accused and the victim. They would refer to the accused as “the tall one” (Herlichka) and “the short one” (McClung). But Mixemong they would refer to as “the Native guy” (not “the old guy,” not “the dead guy”).
At one particularly awkward moment, when the two defence lawyers for Herlichka were late in returning to court from a break, McClung’s lawyer, Chris Hanson, explained to the court, “My colleagues for the defence have stepped outside for a brief powwow.” This drew gasps and guffaws from the First Nations side of the gallery, a quick apology from the lawyer and an admonition from the judge that cultural sensitivities should be more carefully respected.
But for me, the most powerful impulse to view this crime as racially motivated came from my own life experience. I have spent summers in the Midland area for more than 50 years, including 10 years as a cottager on Christian Island itself. I have felt the tension between the Native and the non-Native populations, not always, but often enough to know that it ripples beneath the surface.
In addition, I have reported on First Nations issues for decades. From the outset, I believed this story fit into a familiar template: European, white, government, industry / rapes, cheats, robs, kills, oppresses / First Nations men, women, children, communities. These are paint-by-numbers stories. They follow a well-worn script.
Indeed, it was the apparent simplicity of the equation that was most appealing. The racism underlying much of the national conversation about First Nations issues is often muffled. Even after the term “cultural genocide” was attached to the residential schools issue, we still talked about “good intentions.” In treaty negotiations, the fundamental enmity of the opposing sides is wrapped in the flannel of legal language. When we think of the almost 1,200 missing and murdered Aboriginal women, we note the role of Native men as an exculpatory fact, as if this somehow lessens our collective responsibility in the matter.
Likewise, in Midland, racial tension is seldom overt, until that July evening when it exploded into our consciousness in the alley behind Dino’s. Brutal, graphic, undeniable, this was racial animosity between Native and non-Native Canadians in its purest distillation. This was racism without the mitigating cloak of good intentions or the orotund verbiage of treaty negotiations. This was the real thing.
My plan was to use this moment as a portal into the hidden streams of racial tension that eddy beneath the placid surface of small-town Ontario. I would use it to reveal the undercurrent of racism eroding the national struggle for First Nations justice.
Things did not turn out quite as expected.
At a bistro in Toronto, I sat down across from Herlichka’s lawyer Robert Richardson. I have known Richardson for years. A union activist, social worker and now criminal lawyer specializing in legal aid cases, he has followed a social justice tangent in his career. It was odd for me to find him in this role, defending a white man accused of killing a Native man.
An imposingly tall man in his 50s with a deep voice that American singer Paul Robeson might have envied, Richardson is himself of mixed race, black and white. His adoptive father, Boyce Richardson, is a well-known activist journalist who earned renown reporting on the efforts of the Cree First Nations of northern Quebec to stop the damming of rivers in their traditional lands to feed Hydro-Québec power plants.
Given this, I had to ask, was he not on the wrong side of this issue? I know the bromide that every accused is entitled to the best possible defence, but still. “Robert,” I began, “how does a lawyer with your sympathies find himself on the wrong side of a racially motivated murder?” Richardson looked up from studying the menu. “This wasn’t about race,” he declared. “It’s not about race at all.”
First off, he explained, Herlichka had been in a decade-long relationship with a First Nations woman. Kelly-Dawn Marsden is from the same Christian Island reserve as Andrew Mixemong. What’s more, said Richardson, Herlichka and Marsden have two daughters. Both children are status Indians under the law.
As the lunch hour ticked by and Richardson’s characterization of the circumstances surrounding the murder unrolled, my neat and simple assumptions about the case were increasingly challenged. The details, as he presented them, did not fit my template, and I fought to preserve my original hypothesis. “Robert, please,” I protested. “The skinhead look. The swastika. Come on!” Richardson stuck to his guns: this is not about race.
Dogged faithfulness to one’s assumptions in the face of contrary information is a well-recognized phenomenon. It has a name, or names, depending on one’s academic discipline. A social worker friend calls it “ideational gating.” The mind wants to let through the mind’s “gate” only those facts that conform to what we already believe. When non-conforming facts do enter and disturb our preconceptions, we experience a kind of psychic discomfort that psychiatrists call “cognitive dissonance.” We believe what we want to believe, the facts notwithstanding. We give up our cherished notions only with a painful reluctance.
I wasn’t alone in assuming that racism was at the heart of this tragedy. Others who felt the same way included fellow journalists and some members of the First Nations community.
One of them was Margaret Raynor, a Métis woman and longtime friend of the Mixemong family who grew up in the region. “Of course race played a part,” Raynor insisted during a courtroom break. Until 2000, she had taught school in Penetanguishene, less than 10 minutes from Midland. As someone who can “pass either way,” Raynor said she was often present in the school staff room when other teachers, who must not have known of her mixed ancestry, exchanged racist observations about their First Nations students.
Another day, on the car ferry to Christian Island, I ran into Ted Marsden, uncle of Kelly-Dawn Marsden. Ted grew up on Christian Island and lives there year-round. He supplies cordwood to cottagers (including me), sells fish and produce from the back of his truck, and does some building construction when he can get it. Marsden once hired Herlichka to work for him as a labourer on a construction project on the island: a duty to family, he said, describing Herlichka as “a little pipsqueak at the time.”
Like most islanders, Marsden went to high school on the mainland — he recalled that the First Nations girls were called “squaws” and the boys were called “wagon burners.” Marsden has no doubt that Mixemong’s death was racially motivated. It’s “them against us,” he said.
But many more close to the event were not convinced. Theresa Vanderstelt is Ted Marsden’s neighbour and Andrew Mixemong’s eldest sister. She invited me to brunch, and over heaps of chili, scones and fried bread, talked about the Mixemong family. Andrew was one in a family of nine children. Their father was a lumberjack and fisherman and often absent; their mother ruled on the domestic front with an iron fist. The kids grew up fishing in the shallows, duck hunting in the fall, skating on the lake in winter. Andrew was closest to his brother Wayne. With his very first paycheque, Andrew bought Wayne a pair of running shoes, the first new pair of shoes he’d ever had. The family was also proud of the distinction Andrew had later achieved as a first-degree member of the Three Fires Midewiwin Society (a spiritual healing society) and as president of the Georgian Bay Native Friendship Centre in Midland.
Relating all this at the brunch table, Vanderstelt teared up and had to take a break. The slow pace of justice frustrated the family, said her son, Brian Vanderstelt. If the victim were white, they believed, the matter would have been dealt with more expeditiously. So did they agree, then, that race was a motive for the murder? There was a pause as the family thought this proposition over. “No,” said Brian finally. “No, not race.” Then, voicing the explanation I would hear most often: “Wrong place, wrong time.”
Roly Monague, chief of the Beausoleil First Nation on Christian Island, agreed. “Race? No, I don’t think so,” Monague said. He grew up down the road from the Mixemong family and doesn’t deny the fact that there is a strong current of racism in Huronia. “But that night, anything could have provoked those kids, anyone. It didn’t have to be Andrew. They were just out looking for trouble.”
Michelle Vainer, also a “wrong place, wrong time” proponent, is the 18-year-old daughter of a white father and an Aboriginal mother. I’ve known her family for 10 years. Vainer babysat Herlichka’s children and saw another side of the man held primarily responsible for the murder. “Jessy’s really fatherly,” she said, “really good with the kids.” She and her older sister are near-contemporaries of Herlichka’s and McClung’s and hung out in the same circles. She agreed that they could be a couple of hard-boiled characters, but her overall take? “They’re good guys.”
Of course, it’s Richardson’s job to present evidence to mitigate the heinousness of his client’s act, but I believe he was being genuine when he told the court that Herlichka’s “not a mad dog or a mean person or a hardened criminal,” but instead “a good kid who got a raw deal in life.”
Herlichka’s lawyer Richardson suggested (to me and to the court) that the best place to look to understand this violent moment is in his client’s past. Of course, it’s Richardson’s job to present evidence to mitigate the heinousness of his client’s act, but I believe he was being genuine when he told the court that Herlichka’s “not a mad dog or a mean person or a hardened criminal,” but instead “a good kid who got a raw deal in life.”
“I’m nervous, yes,” Herlichka said from the witness box. Richardson took the unusual tack of putting his client on the stand to testify on his own behalf. This might have been a good call: Herlichka is very soft-spoken and has a kind of spaniel look that encourages sympathy. He told his story, and it wasn’t pretty.
Herlichka’s parents were from Hamilton, but the family moved from town to town in southern and central Ontario as his mother, Cynthia Herlichka, chased jobs in the service industry — “waitressing, bartending, cooking,” she told me. (Others, speaking from experience, add “dancing” and “stripping” to her resumé.)
According to Jessy Herlichka’s testimony, both his mother and father (deceased some years ago) were addicted to prescription drugs. Herlichka was a quick study. “I took pills off my mother,” he said, “did just about anything I could get, but my drug of choice was oxys. Even when I was down, they made me feel good about myself.” Herlichka agreed that he had a long-standing habit of alcohol abuse as well. “I’ve had a problem with drinking since I was 12, 13 years old,” he said. “Drinking to fit in is what you did in a small town.”
Herlichka went to Midland Secondary School but never graduated. In his last week of Grade 12, the police came to check for drugs. Herlichka, who had a hash pipe in his backpack, took off to avoid detection and was not allowed back. He never wrote his final exams.
It was at Midland Secondary that Herlichka and Kelly-Dawn Marsden started to date, crossing the racial divide. He left home at age 17 to live with her after an argument with his mother. Cynthia now lives in Kirkland Lake, Ont., 500 kilometres north of Midland. She has seen very little of her son in the last decade.
On one of her infrequent visits to the trial, Cynthia Herlichka sat stoically, listening to her son being described as a murdering brute. Her blond hair was streaked with grey and held off her face with a purple scrunchie. She wore a summery frock too girlish for her age. Next to her was Marsden, a beautiful heavy-set young woman with long, glossy black hair buzzed close to her scalp on one side. She wore a blue-black leopard-print scarf and a green emerald ring. Introduced to her by lawyer Richardson at a break, I found Marsden timid. She smiled shyly when I mentioned my connection to the island and to her uncle Ted Marsden.
As Herlichka told his story to the court, Kelly-Dawn Marsden wept quietly and was comforted by Herlichka’s stepfather, Art Perrault. Perrault seemed to be the most family Herlichka had, apart from Marsden and their children. Heavily involved in motorcycle culture, Perrault dressed and looked the part, down to his Harley-Davidson souvenir T-shirt from Brisbane, Australia. His relationship with Herlichka appeared to be loving and loyal. He attended every court session I did.
Led by Richardson, Herlichka testified that after leaving school he worked at a sawmill for five years with McClung, whom he had known and connected with sporadically from childhood. “We would get together to drink, do drugs, hang out.” He left the Coldwater mill and took a job with a friend as a roofer, which he held for four years, up until the day of the murder. Herlichka described consuming a stupefying quantity of drugs on that day and an amount of alcohol that an expert witness would later describe as potentially lethal. He claimed to remember nothing. At one point in his testimony, he said of the attack, “Seeing the video of what happened, I can’t believe that’s me.” Later in the trial, summing up, Justice Stong said Herlichka “had a difficult background, unstable and unhappy. He suffered a verbally and physically abusive alcoholic mother who abandoned her son.”
During the trial, people from both camps, as well as some of the lawyers, congregated outside the courthouse to smoke. One day last June, the Herlichka group was talking about motorcycles and life. Perrault had accepted the inevitability that Herlichka would spend most of the next decade in prison, but was looking for a silver lining. “Up until now, Jessy hasn’t been eligible for any kind of rehabilitation programs,” he said. “Once he’s sentenced, he will be.” He said his stepson wanted to get into Al-Anon and Narconon programs. He wanted to take courses, “maybe learn some skills, maybe train to be a mason.” Most importantly, Perrault said, Herlichka wanted to get the high school certificate he missed, by one week, 10 years earlier.
Herlichka’s friend Neal Anderson was there too. Herlichka’s a lot like him, Anderson said. They both grew up as poor white kids in Midland, and now both have had serious run-ins with the law. Anderson is another of Herlichka’s peers and acquaintances who insist that
Herlichka’s a good guy, but an angry one. “He had a lot of stuff going on in his life at the time,” Anderson said. “Relationship stuff. Family stuff. And he was stuck. Never graduated high school. No money, with a family to support. No prospects for the future. No steady long-term jobs. A whole lot of nothing to do.”
About McClung, Anderson is less charitable. They were in high school together, along with Herlichka. Anderson dismisses McClung as a drug addict. “He has more enemies than friends. He’s totally alienated himself from his family. That’s why nobody’s ever been here. [McClung’s mother] Fiona and his grandfather showed for the sentencing hearing, but that was about it.”
McClung didn’t speak in his own defence until the very last day of the trial, when he read a brief statement apologizing for his role, invoking the needs of his own two children (one of whom is half-Native) and volunteering to seek help for his addiction issues. His lawyer appeared less interested in delving into what McClung had done in life as he was in what his client didn’t do on July 6, 2012. But the truth about McClung’s history would eventually out. Summing up his background, Stong noted five convictions for assault, plus another for uttering threats. He observed that while in custody for Mixemong’s murder, McClung had been involved in several additional violent incidents, including one apparently committed “solely for the entertainment value.”
Midland is a town of faded glory perched on a gently sloping hill leading into Georgian Bay, principal source of past prosperity. Downtown murals depict a history of industry and affluence.
“We have gone through epochs,” said Midland Mayor Gord McKay. “First of all, forestry. Timber from the shores of the bay was brought here to be milled. We were a major port and railhead for grain coming from the Prairies before the St. Lawrence Seaway was built. We went through a period of shipbuilding. Right up until the end of the Second World War, we were building Corvettes here for the Canadian Navy. After that, we had a period of industrialization with a lot of heavy manufacturing plants.”
Most of that is long gone. The red brick mansions at the top of the hill that used to house the families of local industrialists are now given over to dentists’ and accountants’ offices and real estate agencies.
King Street is the main thoroughfare. Descending from the hill to the harbour, it is flanked by two- and three-storey red brick buildings. Many of their ground-floor storefronts are empty. The remaining small businesses include Dino’s Deli, scene of the crime. Across from Dino’s, there is an impressive white limestone public library (a repurposed municipal building), and beside it the red brick bell tower of St. Paul’s United Church. Both seem too grand for the town’s present circumstances. Uncle Buck’s Buy, Sell, Trade, a pawn shop that also offers cheque cashing and payday loans, is a better fit: beneath the serene and sedate skin, Midland is really not a well town.
In 2012, the year of Mixemong’s murder, MoneySense magazine ranked Midland 178th out of 190 communities on its annual list of the best places to live in Canada. This assessment was based on a range of factors, including income, weather, crime rates, availability of medical care, property taxes and employment. Statistics Canada (reporting census data up to 2011) noted that the town had shown virtually no population growth (1.5 percent) between 2006 and 2011. The unemployment rate among Midland’s labour force of 8,000 workers was significantly higher than the rate for the province in 2011: 12 percent compared to 7.8 percent.
These financial statistics translate into quantifiable social costs. The Midland community is aging as young people leave for better employment prospects elsewhere. Seniors make up 22.1 percent of the town’s population, compared to 14.8 percent across Canada, a growing percentage of them recent arrivals taking advantage of low real estate prices. Only 53.1 percent of Midlanders had completed some post-secondary education, according to the census. Nationally, the number is 59.6 percent. Among Midland families, 20.2 percent were stepfamilies (like Herlichka’s), as opposed to 12.6 nationally. Broken families are never a good sign. In 2011, Midland had more violent crimes per capita than nearby Barrie, Orillia and Collingwood, and almost triple the provincial average. This was Herlichka’s and McClung’s environment growing up.
McKay said the town perceives the problems and is grappling with them. “Economically we’ve gone through some pretty tough times in the last decade,” he said. “We’re all aware of what’s happened in Ontario with manufacturing being pulled out of many areas, and Midland has lost a fair number of very large manufacturers. So we’re in the midst of a transformation to service industries, especially tourism and health care.”
Tourism is already well established in the region. The local population balloons every summer with cottagers, hotel guests, boaters and campers. Certainly that’s a good thing.
Health care, however, has been something of a dilemma. Waypoint Centre for Mental Health Care is a 301-bed psychiatric hospital just outside Midland. It provides in-patient and out-patient services for the surrounding region, including services for “clients served by both the mental health and justice systems,” better known as “the criminally insane.” When in-patients become out-patients, many of them settle in town.
“The Midland area has a higher-than-average number of people who struggle with mental health issues and/or addictions due to our proximity to [the Waypoint Centre] and its many out-patient programs in the community,” wrote Rev. Karen Ptolemy-Stam, minister of St. Paul’s United, in an email. The presence of these people in the community, she said, challenges her “to be painfully aware of the brokenness of life.”
McKay sees the challenge in practical terms: “This whole area has quite a population of people who have not done quite as well in life as others. It’s a challenge to the town.”
In 2001, the Central North Correctional Centre (known as the “super-jail”) was built just down the road from the psychiatric hospital. Together, the two institutions provide many good jobs, but there’s a downside. “We have had a lot of serious conversations about downtown safety,” said McKay. “How do you build a healthy community that incorporates these individuals?”
The more I learned about the human landscape of Midland and environs, the more inadequate and misleading my original preconception seemed that made Mixemong a representative Aboriginal and Herlichka and McClung representative white oppressors. There is something ludicrous, after all, about aligning the accused with the powers that invented residential schools. They aren’t the ones dragging out treaty negotiations, withholding funds for education, stonewalling the push for an inquiry into missing and murdered Aboriginal women. Others, with very little in common with Herlichka and McClung, are on the hook for that. In the struggle for social justice for First Nations people in Canada, Herlichka and McClung are not the enemy.
Indeed, what separates them from the community of their victim pales in comparison to what they have in common. The accused are undereducated, underemployed, victims of domestic abuse, children of broken families, substance abusers, powerless, hopeless, alienated, shunted to the margins of society. With what other segment of the population do Herlichka and McClung have more in common?
Young Native people from the region appear to recognize this affinity. The Native and non-Native division in the courtroom was not perfectly defined. There were, in fact, a significant number of young Aboriginals from the area whose allegiance to their friends in the prisoner’s dock was more compelling than loyalty to race — among them Kelly-Dawn Marsden, her aunt and uncle, Michelle Vainer and her sister, and Chad King, Herlichka’s friend and a member of one of the foremost Christian Island families. All of them braved the scorn of the Mixemongs and their supporters to sit on Herlichka’s side of the gallery.
As Ptolemy-Stam observed, the two communities are “intertwined,” members of the same marginalized tribe. What, if anything, separates them? Kelly-Dawn Marsden: two kids to raise, spouse facing a life sentence, a pariah to some members of her community. Mercy Maitland: saucy and street-smart, with a grammar mistake tattooed in big letters across her chest — “Heart’s never break even.” Neal Anderson: an ex-con with nowhere to go but out of town because he’s hounded by the police. Herlichka. McClung. So many in this narrative seem to be lost in a Neverland of addiction and desperation.
In his summation, Justice Stong said, “The shocking brutality remains unexplained.” He remarked on “the absence of any apparent motivation.” He repeatedly described the crime as “senseless.” But really, it makes perfect sense. What is this all about? Rage. Rage against hopelessness, against impotence, against the unshakable burden of addiction. Pent-up rage at being 26 with no future ahead. Herlichka didn’t hate Andrew Mixemong. Herlichka was mad at the world. If there is a template that the facts of this event more nearly fit into, it would be the paradigm of social inequality and the dire effects it has on the young and vulnerable, regardless of race.
A little more than three years after the murder, a commemorative sign bearing Andrew Mixemong’s Ojibwa name, Neezhoday, meaning “two hearts,” stands on a small patch of grass across the street from Dino’s Deli.
“The memorial was a kind of healing moment, not just for the First Nations community but for the whole community,” Mayor McKay said. “I don’t want to overplay it and say we’ve suddenly become much more integrated, but it has brought us closer together as communities that live together.”
In retrospect, though, the gesture was probably unnecessary. The non-Native community had already reached out spontaneously to the Mixemong family, ignoring the racial divide without benefit of any official urging. Wayne Mixemong, Andrew’s closest sibling, lived most of his life in Midland. Racism was certainly a significant part of his younger years. “It was real bad,” he said. “We couldn’t walk into a store but they’d be chasing us out, us Indian kids. My first job: when I went to cash my paycheque at Zellers, the manager phoned the company president where I worked to see if I stole that cheque.”
In the wake of Andrew’s death, Wayne came to realize how significantly things had changed. “You would not believe what’s happening now,” he said. “Complete strangers come up to me and say, ‘How are you? How’s your family?’ People have changed their outlook.”
It’s anybody’s guess whether the memorial parkette will have a lasting impact on local race relations. In the short run, it actually seems to have provoked resentment in the very constituency it aimed to please. Several First Nations people I spoke to feel the gesture was patronizing and false. Nobody thinks Mixemong deserved to die, but some wonder if his violent death at the hands of two white men hasn’t made him something of an accidental martyr.
“Andrew was a nice guy, but no saint,” said one Christian Islander who did not want to be named. “If Fudd had simply died of his diabetes, he would have been tucked quietly away in the family plot on the island. Instead, he gets a park and a plaque? For being murdered? It’s not really what you could call a great accomplishment.” Be clear: the speaker meant no disrespect to Mixemong. His observations had only to do with the distortions that can result from simplifying the complex. He thinks the well-intentioned people of Midland misread the meaning of the incident and invested it with racial significance it simply did not have.
Mixemong’s siblings, some say (again requesting anonymity), have been overeager to wrap themselves in the victim’s mantle. The effect, they suggest, is a certain sense of self-righteousness that within the community smacks of hypocrisy. Christian Island is a very small place. Fewer than 600 people live on the reserve. Everybody knows everybody’s business, their virtues and their flaws. Members of the extended Mixemong clan have themselves been convicted of violent crimes. The family that showed up to court day after day to look daggers at the two accused and their entourage live in a moral glass house, some charge. A bit of empathy might have been in order. (When asked about this, Wayne Mixemong said, “We are not priests. We don’t absolve anyone of anything.”)
This attitude has been particularly galling to islanders when it has manifested itself in attacks on Kelly-Dawn Marsden and her family. Cynthia Herlichka said that there have been threats against Marsden and the children, whispered curses and sharp elbows in the courthouse corridors. Shirley Haye, who is First Nations and a court worker attached to the Native Friendship Centre in Barrie, feels the rifts in the Native community over this crime are greater than the rift between Natives and non-Natives. “That’s where the healing part has to come in,” she told me during the trial. “There’s a death, there’s the anger, there’s the hurt. It’s going to take a while to bring all this out and deal with it. Nobody’s talking about it now, but when the trial’s over the healing piece at the end of this is going to be huge.”
The end came at the sentencing hearing on June 29, 2015, nearly three years after Andrew Mixemong died. Jessy Herlichka was convicted of second-degree murder with a mandatory term of life, eligibility for parole after 10 years and credit for time served at par. It was close to the most lenient sentence possible, given the murder conviction. McClung was convicted of manslaughter and sentenced to 10 years in prison, with eligibility for parole after a third of the sentence has been served, and credit for time served at par. Not lenient.
When court adjourned for the last time, Art Perrault embraced Kelly-Dawn Marsden, both in tears, which I took to be tears of relief. They got almost the best they could hope for. McClung’s mother and grandfather slunk away angry, their worst fears realized. Outside the courthouse, Kim Mixemong, Andrew’s most outspoken sister, pumped her fist and shouted, “Justice for my brother” into CTV’s camera. The camera operator quickly abandoned her to catch a shot of a grey court-services vehicle leaving for the super-jail near Midland, with Herlichka and McClung aboard.
If we imagine these sentences have effectively addressed the real issues here then we have totally missed the boat. The justice system deals only with the results of crime on an individual basis, not the underlying social causes that lead to it. “What is this all about?” Randy Mortley asked. It took me a long time to conclude that Andrew Mixemong didn’t die because he was Native; he died because Jessy Herlichka and Paul McClung were alienated, addicted and ferociously angry.
I’ve learned a valuable lesson in the two years I’ve been following this story: templates and paradigms can be double-edged swords. They can help us understand, and they can lead us astray. They can bring clarity to complicated matters, but they can also obscure complex truths.
This is a good lesson for all Canadians, as we face big challenges ahead — social inequality and First Nations issues foremost among them. Too many familiar old stories; too few fresh new facts. We cannot simply repeat the “entrenched narrative,” as Globe and Mail columnist Jeffrey Simpson described it. We must become more aware of our assumptions and our reluctance to give them up. We need to set aside worn-out scripts and mental shortcuts and see things as they really are. It’s time for new narratives.
One way to start would be to take a cue from Karen Ptolemy-Stam, the Midland United Church minister, who said that our communities are not separate but intermingled. The First Nations piece and the inequality piece are one piece. Marginalized First Nations people and marginalized young people in small towns are all marginalized. The pain of their broken lives affects us all. “The impact of brokenness extends beyond the individual,” Ptolemy-Stam wrote in her email to me, “to family, friends and indeed to a whole community.” It is the community’s duty to bring the marginalized home to the centre.
In Midland, that duty is still unfulfilled. And that, I think, is what this was all about.
This story was originally featured in The Observer’s September 2015 issue with the title “Murder on the margins.”