Where Has Redemption Gone?

I was listening to Robert Greenberg's outstanding DVD course on classical-era opera when the subject turned to Mozart's Don Giovanni, a masterpiece, not only in music, but in narrative as written by the librettist Lorenzo Da Ponte.

Don Giovanni, is a dramatization of the Spanish neer-do-well, Don Juan. In the opera, the Don seduces or rapes, depending on your point of view, the daughter of the local Chief of Police. The Don arrogantly and thoughtlessly kills the Chief, who was defending his daughter's honour. In the backdrop, acting as the Don's moral conscience, is his cowardly servant, Leporello, who berates the Don for his unseemly crimes.

From there, the play moves through the three "R"s; revenge, refused redemption, and finally, retribution, as the ghost of the slain father, in the form of a cemetery statue, destroys Don Gionvanni.

Don Giovanni is not just a delightful feast for ears and eyes but is a present-day reminder of the power of revenge, retribution, and redemption in our criminal law. In H. L. A. Hart's classic book of essays, entitled Punishment and Responsibility, the concept of retribution is uncovered, analyzed, and redrawn, as Hart makes a case for punishment connected to criminal liability and guilt. Since 1968, when Hart first published his theories, sentencing has gone through many reforms; moving away from retribution and revenge and toward the goal of rehabilitation through redemption.

But has this reform in sentencing worked? Is redemption possible? Is rehabilitation workable? And if not, are there punishment alternatives which still preserve the dignity of an individual while encouraging redemption? These are but a few of the questions we must ask before the Canadian government enacts the proposed sentencing "reforms."

Perhaps it would be helpful to look globally at our closest legal system, the UK, for an answer. The Ministry of Justice Structural Reform Plan, published, in 2010, a Green Paper on sentencing reform entitled Breaking the Cycle: effective punishment, rehabilitation and sentencing of offenders. The Government's response , recently released in June 2011, has some surprising recommendations, which I will discuss in tomorrow's blog. I will, however, conclude with a teaser question: is redemption dead?

Blog Interruption: To Kill A Mockingbird

I interrupt my blog scheduled for today for good reason. Yesterday, I saw the excellent Theatre Calgary production of To Kill a Mockingbird. The play, based on the book by Harper Lee, recounts a seminal year in the childhood of Jean Louise (Scout) Finch in the backdrop of a rape trial of a Black man in the deep American South of the 1930s. Scout's father, Atticus Finch, is the lawyer, representing the accused.

The case has already been decided by the townspeople many years before the trial even starts; the victim is a White woman. The audience knows this and knows the inevitable will happen; an innocent man will be convicted and put to death because of the colour of his skin. We know this and yet we hope. As Jean Louise, her brother Jem, and her friend, Dill, hope, so we too hope. But like a train wreck waiting to happen, it happens and the shock of the inevitable is still crushing no matter how we try to cushion ourselves from it.

This play/book is an important reminder of the frailty of human kind and the impact which justice and injustice has on it. Indeed, one cannot help but feel, after reading the book or watching the play or movie, that equality and justice is the paramount goal for which we all strive, even if it takes us a long time to get there.

In order to get there, according to Atticus Finch, we must have empathy for others, live in another man's shoes so to speak, see the world through another woman's eyes; the disenfranchised, the vulnerable, and yes, even the prejudiced. Only then can we truly recognize each other and make steps, even baby steps, toward a free and just society.

Thank you Harper Lee for this reminder.

For more on literature, law, and miscarriages of justice see my October 18 blog on Julian Barnes, Sherlock Holmes, and A Miscarriage of Justice. For more on the backdrop to the case dramatized in To Kill A Mockingbird, read about the Scottsboro case here.  On the banning of this book in schools read the 2009 Toronto Star article here. Finally, read the book, go to the play, or watch the movie!

Tomorrow, I will reconnect with the Supreme Court of Canada and the case they should and, possibly, will take.

The Road Taken by the Supreme Court of Canada

The Supreme Court of Canada, this Fall has already released a number of important judgments. The PHS Community Services Society decision on Ministerial discretion, or lack thereof, under s.56 of the CDSA for an exemption of a safe injection site in Vancouver is one such case. Another, is the Crookes v. Newton case in which the Court described a hyperlink in a website article as a reference and not a defamatory publication. 

The Court has also heard and reserved on some controversial cases such as the Whatcott case involving the constitutionality of the hate speech provisions in the Saskatchewan Human Rights Code. Whatcott is a good example of the difficult issues found in a Charter case involving conflicting fundamental freedoms as the freedom to express competes with freedom of religion. Not unusually with these conflicts, there is rarely a clear winner. As Ronald Dworkin, an American constitutional scholar, would say, one right does not "trump" another. For our rights in Canada, although guaranteed, are limited within the Charter itself. Ever reasonable, we Canadians prefer the balanced route, the road taken so to speak.

For tomorrow's blog we will be "taking rights seriously" as I speculate on the case the SCC has not yet heard, but should, and possibly, will. 

Where the Wild Things Are

The escape of wild animals in Ohio is a story which has caught my attention. It is a sad story. The suicidal exotic zoo owner released some 50 wild animals, including tigers and lions, before shooting himself in the head. Tragically, the animals were shot and killed by authorities in an effort to protect the public. In the aftermath, animal rights activists push for legislative reform in a State, which, shockingly, has no regulation for the keeping of exotic animals. 

Here, in Alberta, we do have provincial legislation to regulate and protect wildlife, exotic animals, and domesticated animals as found in the Wildlife Act and the Animal Protection Act. We also have cruelty to animal sections in the Criminal Code, found in sections 444 to 445 and 446 to 447.  

Oddly enough all of these Criminal Code sections are found under Part XI of the Code entitled "Wilful and Forbidden Acts in respect of Certain Property." True, animals are owned but to conceive animals as property conveys the wrong message. The focus is off. Instead of protecting animals because they are living things, our society protects animals because, like a book, they are owned. It is, therefore, this ownership quality of an animal, the concept of damaged goods, which we have decided to protect through our criminal law. 

But the world is changing and our raison d'etre for protection of animals must change too. Peter Singer, a Professor of Bio-Ethics at Princeton, has been a long-time proponent of animal rights after the publication of his book Animal Liberation in the mid '80s.  Since then, animal rights has become a movement with increasing number of supporters. A recent Slaw blog on "Animal Law and Animal Welfare Groups" caught my eye. Additionally, the Supreme Court of Canada will be deciding on a leave application filed by Zoocheck Canada and others on the release of Lucy the Elephant from the Edmonton Zoo.

It is clear animal rights as an emerging issue will require a more thoughtful approach to the protection of animals and, perhaps, a much needed review of Criminal Code sections.

How To Celebrate "Persons" Day Next Year

October 18 was "Persons" Day in Canada. The moniker arises from the Edwards, et al case, decided 82 years ago, in which the British Judicial Committee of the Privy Council (JCPC), the then highest Appellate Court for Canada, defined women as "persons." This decision gave women the right to sit in the Senate. A right previously, and vigorously denied to women. The five women, who through their tenacity and will-power, appealed this case, are now known as the "Famous Five." In celebration of their achievements, equality rights for women is celebrated throughout Canada. Through their actions, they have inspired many.

There is no doubt the result of this achievement was a crucial and watershed moment for women's rights. There is no doubt the effect of this fight was also an important moment in Canadian law as Lord Sankey's decision brought the concept of our Constitution Act of 1867 into a modern and fruitful interpretation. One that is reflected today in our Charter. However, as with all "celebrities" there is another side to this story.

These women were politically powerful. Emily Murphy was a Magistrate, Nellie McClung was a Member of the Alberta legislature, and Louise McKinney was an active member of the Temperance movement. In short, they were important women who were personally affronted by gender inequality. Their fight did not include the concept of equality for all minorities or vulnerable groups. Indeed, their fight was for equal rights for women like them; politically powerful and of British descent. Indeed, Emily Murphy, held what we would categorize as, racist views, particularly towards Asian-Canadians and Afro-Canadians. Just read, if you can stand to, her book entitled Black Candle.

However, this does not mean we should not celebrate this moment or event. A quick glance at the celebratory events held throughout Canada show a remarkable array of events involving women of all nationalities and ethnicities. This is the true legacy of the Persons case.

Yes, women are people too but so are Aboriginal women, and Asian-Canadian women, and Afro-Canadian women, and thankfully and proudly the list goes on. So next year, I will celebrate this seminal moment by pausing for a moment and cheering for all women of all backgrounds in our country.