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’s aunt, Cynthia’s sister, died of a prescription drug overdose nearly four years ago. 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.