Legal Intuition

Iain McGilchrist is a  psychiatrist who has a theory connecting the development of the human brain into "right" and "left" halves, with the development of the Western World. In his book The Master and His Emissary, McGilchrist argues that although the brain is not divided, in the sense there are different functions working in different hemispheres, the different halves of the brain process information differently resulting in very different results. The right or "master" side is detailed oriented and relies upon the left or "emissary" side to provide context and meaning. The problem with the divisions is that the left side has developed its own agenda and humans increasingly rely on the left side to direct them personally and socially. This leaves us with a gap in our true functioning as we emphasize the "what" of nature instead of the "how." For a different explanation, I strongly recommend this animated video of McGilchrist's theory. It is excellent.

But what does this theory have to do with law? According to McGilchrist, the right side is very good at intuiting a result and thus better able than the left side to make the right decision based on context and facts. It is this intuitive side, McGilchrist argues, we are sorely lacking in today's society. We have so embraced fact and reason, we no longer embrace the use to which intuition and feeling can bring us success. Is this true of law as well? Does intuition have any place in this arena of reason and logic?

I looked for intuition as an acceptable legal concept. Of course, the concept of intuition may be masked behind a judge's use of common sense in finding the facts of a case. The traditional principle permits a judge to draw conclusions based on a theory that a person intends the natural consequences of his or her actions. Is the judge just really applying her intuition or is it pure reasoning and logic?

The best way to delve into this conundrum is to look at jury cases. Juries tend to articulate more readily when they are struggling with an issue. Juries also do not have the legal training which encourages them to articulate their findings in the language of principle and precedent. The Northwest Territories Court of Appeal dealt with this scenario in the 1998 Lam case. Lam was charged with narcotic offences and was tried before a judge and jury. The jury was deliberating well into the night when they sent a note to the judge which read as follows:

We all agree to 11 key facts. We all agree these facts point to a guilty verdict. One of us feels uncomfortable at a gut intuitive level. Please advise how we weigh intuition versus facts - evidence.

The trial judge, obviously frustrated by the question, exhorted the jury to use only the "rule of evidence" in deciding the case and gave them a limited amount of time to come to their verdict. Th Court of Appeal found no difficulty with the judge's instructions. In their view, the judge was not advising the uncomfortable juror to conform but to simply be guided by the evidence. Articulated intuition was not legally acceptable.

The Supreme Court of Canada grappled with a similar issue in the 2009 Griffin case. Circumstantial evidence was at the centre of the case. The jury came with a question during deliberations: can reasonable doubt be based on feelings and intuitions? In response, the trial judge explained that individually they should be able to explain their decision. The jury ultimately convicted. On appeal, the Quebec Court of Appeal overturned the finding but the Supreme Court of Canada reinstated the conviction on the basis verdicts cannot be based on "feelings and intuition" but as previously decided in the Lifchus case, "on reason and common sense."

Seemingly then, there is no room for the right side in the legal analysis. Or is there? Is not common sense, as earlier argued in this post, not just an almost "scientific" way of describing a person's "gut feeling?" Indeed, in a strong dissent in Griffin, Justices Lebel and Fish relied on Lifchus for the proposition that jurors are not required to articulate their reasons for having or not having a reasonable doubt. Doubts, may be reasonable yet "are simply incapable of articulation." 

Nomenclature may be at the root of this difference of opinion or maybe, as McGilchrist suggests, it is just our right side taking over. Either way, there may be legal intuition; we just can't seem to be able to articulate it.

FYI: Three Updates For A Sunday

Below are three updates of issues discussed over the past thirty days:

1. October 11: Is "Innocent Nudity" Expression? My follow-up blog referred to the case of Gwen Jacobs, who was charged with an indecent act under s.173 of the Criminal Code for appearing topless in downtown Guelph on a hot summer day. She was later acquitted by the Ontario Court of Appeal on the basis that her act was not committed in a sexual context, which was a required element of the offence. At the time, she was hailed as a fearless advocate for the rights movement. Today Gwen is still an activist and on Friday she appeared with her daughter at Occupy Toronto to lend her support. For those wondering, yes, she did have her shirt on - it was cold out! However, thanks to Gwen, breastfeeding at that public event or really anywhere now is acceptable.

2. October 18: Wristbands Are In Effect: The "Keep A Breast" Campaign. Doing a quick Google search reveals this story has received a lot of attention. Commentators on websites, journalists, and bloggers alike all seem to be against the ban. Some comments even set the campaign side by side with Movember, the prostate cancer "grow a moustache" fundraiser. One online article is particularly moving as it reveals some girls wear the wristbands in honour of a loved one who had breast cancer. This becomes particularly meaningful considering, on average, 64 Canadian women a day are diagnosed with breast cancer and 14 women are dying daily of the disease. If you are unable to find the wristbands for purchase, you can go here to post a virtual wristband on your Facebook page or Twitter account.

3. October 21: Where The Wild Things Are. In this post on animal rights issues, I mention Lucy the Elephant in the Edmonton Zoo and the fight for her release. The matter is currently before the Supreme Court of Canada. But what of Lucy and her plight? Recently, the City of Edmonton has decided to take steps to winterize Lucy's enclosure at the zoo. Why now after Lucy has already spent umpteen winters in the Northern Alberta City? The move is after recommendations from a "third party specialist" who examined her. Although the renovation is welcomed by animal rights groups such as PETA, who are involved in advocating for Lucy's release, the gesture does not go far enough over fears she will not survive the harsh winter. As of November 7, both parties to the SCC action have filed their arguments at the Court. It is now a race against time but there is surprising evidence that Elephants can, in fact, run. Go Lucy go!

The Art and Science of Connections

While reviewing my posts, I began thinking of connections and how seemingly unconnected events can provide meaningful and sometimes surprising connections, which can then further enhance our understanding of the subject. Every Friday, I read Simon Fodden's Friday Fillip blog and yesterday he too was discussing connections in his Degrees Of Connections posting. As opposed to Steven Johnson's concept of mentally connecting ideas for innovation, Fodden offered a mechanical option through Wikipedia's Xefer site. This search engine, using Wikipedia articles, can connect any three words to come up with a search list of articles connecting those concepts through a visual "tree of knowledge."

I plugged in three concepts from my previous blogs, not obviously connected: inherit the wind, redemption, discrimination. The results are fascinating as Art and Science truly come together. 

Of course, this mechanical connecting encouraged a mental one and I started making connections between my blogs. Here is my first "six degrees of connections": October 12 Law, Literature, And Inherit The Wind to November 9 Freedom Of Expression In The Classroom to November 8 The Pridgen Case and Freedom Of Expression On Campus to October 18 Wristbands Are In Effect: The Keep A Breast Campaign to October 25 On The Road To The Supreme Court Of Canada to October 22 The Road Taken By The Supreme Court Of Canada which leads back to the October 12 blog. Whew.

How did they connect? I went from Inherit The Wind, the play involving the prosecution of Mr. Scopes, a teacher who taught evolution in the classroom which connects to freedom of speech in the classroom and the PEI case of Mr. Morin showing a controversial documentary in his grade 9 class which connects to freedom of expression by students on campus involving the Prigden case just heard before the Alberta Court of Appeal which connects to freedom of expression of students wearing breast cancer wristbands which connects to what cases have been heard before the Supreme Court of Canada and the Whatcott case involving freedom of expression issues intersecting with freedom of religion issues which connects to the case the SCC should hear on freedom to be free of religion in the classrooms as a result of Morinville, Alberta school and the Lord's Prayer which connects back to Inherit The Wind and the freedom to be free of religion.

How was that for a weekend brain twister? Try it and make either mechanical or mental connections. Who know where they might lead? 

Lest We Forget

Remembrance Day is a time of reflection. Every November 11 at 10:50 a.m., my family and I honour the day by sharing passages of poetry written by war poets. We then, at 11:00 a.m., observe a moment of silence. Last year we also went to Lunchbox Theatre in Calgary and watched the musical, In Flanders Field, based on the poet John McCrae's life. It was a moving production which left none of us with a dry eye. This year, we will repeat the observance and watch Lunchbox Theatre's play on World War II, entitled Jake's Gift. 

I have already decided which poems, I will present tomorrow and among them are three poems which exemplify the war poetry genre. The first poem is written by the World War One British poet, Wilfred Owen, entitled Dulce Et Decorum Est,  which refers to the words of Horace: dulce et decorum est pro patria mori. The phrase translates to "it is sweet to die for one's country." Wilfred Owen uses the phrase in a stunning description of death by gas where he warns against teaching young children "ardent for some desperate glory" the old lie as expressed in the phrase. Owen, a friend of another famous British poet Siegfried Sasson, died only 7 days before the Armistice was announced.

The second poet, Keith Douglas, served for Britain in World War II in the Middle East and in North Africa. He was shipped back to England in time to participate in the Normandy invasion of D-Day where he died. There are two of his poems I will read: Vergissmeinnicht (Forget-me-not) and How To Kill. His poetry holds deadly visceral energy yet lands softly as he declaims that "A shadow is a man when the mosquito death approaches."

Finally, I will read a poem written by the Canadian poet, rights advocate, and previous Dean of McGill Law School - F. R. Scott. I have discussed Scott in my previous posting, which can be read here. His poem, entitled Lest We Forget  was written in contemplation of World War II, with the death of his brother during World War One in mind. It has a more cynical tone as he suggests:

And many a brave Canadian youth

Will shed his blood on foreign shores,

And die for Democracy, Freedom, and Truth,

With his body full of Canadian ores,

Canadian nickel, lead and scrap,

Sold to the German, sold to the Jap,

With Capital watching the tickers.

 We shall not forget this Remembrance Day.

Thirty Day Review

Under s. 525 of the Criminal Code, there is provision for an automatic bail review for those accused who have been detained in custody pending trial. If the matter is a more serious indictable offence, the review occurs within ninety days. If it is a less serious summary conviction matter, the review is within thirty days.

This review acts as a procedural safeguard by keeping track of those in custody. It is also an important aspect of the presumption of innocence as the judge determines whether the further restriction of liberty of those merely accused of a crime is justified. Additionally, the review reinforces the Charter right to reasonable bail.

Borrowing the nomenclature of the Criminal Code, but not the analogy, this is ideablawg's thirty day review. Ideablawg has been in operation since October 10 and the weekend postings will offer updates on the issues discussed. As part of this thirty day review, I invite you to send me an email with your favourite post or even with ideas for future posts. As the creative thinker Steven Johnson said:

We are often better served by connecting ideas than we are by protecting them... Environments that build walls around good ideas tend to be less innovative in the long run than more open-ended environments. Good ideas may not want to be free, but they want to connect, fuse, and recombine... They want to complete each other as much as they want to compete.

Update on Thursday, November 10, 2011 at 6:25AM by Lisa A. Silver

FYI, a list of the blogs can be found on the "home" page.