Ideablawg's Weekly Connections: From Pronouncing to Pronouncements

This week I looked at the dual nature of the word “pronounce.” Although in both meanings to “pronounce” is a speech word, the effects of the meanings are very different.

1. Pronounce: In this meaning – to make a sound of a word or letter with your voice – is something we do everyday. Even in this digital age, the speech act is integral part of being human. However, how we pronounce our words has developed over time and the dialect or way in which we pronounce a word has changed radically in the English language. For example, every teen is required to read Shakespeare, typically Romeo and Juliet, Macbeth, and Hamlet, but inevitably with present-day pronunciation. True we recognize the words and the grammatical structure differs from ours but few of us consider that pronunciation in the 1500s was quite different. Thanks to the linguist, David Crystal, Pronouncing Shakespeare, is possible. Listen here for the correct pronunciation (i.e. as Shakespeare would have pronounced them) in Romeo and Juliet. To follow along, the text is here. Just to connect Shakespeare to law, I remind everyone of the famous passage in Act 4, Scene 2 of Henry the IV, wherein Dick states "the first thing we do, let's kill all the lawyers," which presages the disintegration of society and the beginning of anarchy.

2. Pronounce: Another aspect of pronouncing a word is to speak the word properly. In law, Latin words and phrases are common. Indeed, two such phrases come immediately to mind when I teach criminal law. The first is actus non facit reum nisi mens sit rea, which means there is no guilty act without a guilty mind and from where the terms mens rea and actus reus, the essential elements of a crime, come. As an aside mens rea and actus reus are never used in the Criminal Code of Canada. The second Latin maxim is the causation concept of de minimis non curat lex or the law does not concern itself with trifles. Although the Latin language is liberally sprinkled throughout legal textbooks and case law, Latin is not a required course in law schools. But thankfully there are opportunities for self-study. Just buy Wheelock’s Latin and go online for the correct pronunciations. Your law professor will thank you for it.

3. Pronounce: The second meaning of the word is to declare or announce something formally or officially. A Judge, when he or she renders a decision, is making a pronouncement. How the Judge or trier of fact comes to a decision is a matter of much academic speculation and argument. Critical legal theorists spend much of their academic career trying to articulate this seemingly inarticulable process. Is decision making predictable? Is it based on preconceived views of the trier of fact? Is it random or guided by an innate sense of justice? These heady questions are still being deconstructed in legal jurisprudence. As a primer, read Benjamin Cardoza on The Nature of the Judicial Process for an enlightened view on the subject.

4. Hazmat Modine: to end this week’s connections, I decided to move completely away from my theme and leave you with some excellent music and an example of how our world seamlessly mixes all genres to produce new sound – kind of like how our pronunciations have changed over time. Enjoy!

What Is Life?: The Unanswered Question In The Supreme Court of Canada’s Levkovic Case

This blog posting is not about Erwin Schrodinger, the famous quantum physicist and winner of the Nobel Prize. Nor is it about his most famous thought-experiment, Schrodinger’s Cat, which illustrates how the quantum world works or doesn’t work, depending on whether the cat is dead or alive. Ah, “alive.” This posting is about what it means to be “alive” or, as our Criminal Code requires, “in a living state” and it just so happens Schrodinger did have something to say about life in his book entitled What Is Life?

First, let’s step back and set up the conundrum, as I see it, caused by the wording of the Criminal Code and the lack of clarification from the Supreme Court of Canada in the Levkovic case on the issue of life. Homicide under s. 222 of the Code is where a person, directly or indirectly, by any means, causes the death of a “human being.” However, it is only culpable homicide, as in murder, manslaughter or infanticide, which can form the basis of a homicide charge. Section 223 specifies when a child becomes a “human being” and therefore when a child can be the “victim” of a culpable homicide. Under that definition, a

child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not (a) it has breathed; (b) it has an independent circulation; or (c) the navel string is severed.

Thus a child can be a victim of a culpable homicide at the very instance of the completion of the birthing process, when the child has fully exited the mother’s womb but with the caveat that the child must be “in a living state.” This phrase denotes life and suggests the child must be alive to be thus defined as a “human being.” However, the section continues and seems to broaden the definition by making the “living state” independent of breath, circulation, and the umbilicus connection to the mother. This too makes sense in the context of the first moments of birth, when a baby duly born transitions from embryonic fluid to air. It may take a newly born baby up to ten seconds to breathe and for the blood to circulate. In those crucial moments, according to the law, the child is a human being.

But how does this interpretation impact s. 243, an offence requiring the child to be dead? The section creates an offence where the child’s death is concealed even if the child died before or during birth. Clearly if the child dies before or during birth, the child would not be a “human being” in accordance with the definition of s.223, which finds a child is a human being where the child is completely out of the womb and in a living state. Even so, in the Supreme Court of Canada’s decision in Levkovic, Justice Fish, speaking on behalf of the Court, refers to this section to inform the meaning of s. 243 of the Criminal Code, the section creating an offence for concealing the dead body of a child. In order to determine if a newborn child was unlawfully killed, Justice Fish opined, homicide investigators would need to determine if the child would have likely to have been born alive as opposed to a stillbirth. Indeed, Justice Fish suggested

In order to facilitate the investigation of homicides, s. 243 must therefore apply to children that were either born alive or were likely to be born alive and thus capable of satisfying the Criminal Code definition of a human being in s. 223(1). (Emphasis added)

By applying the concepts of s.243 to the definitional section 223, the Supreme Court of Canada has turned life or being “in a living state” into the likelihood of life. To base a required element of an offence on “likelihood,” and to “read down” an interpretation section, which does not require such a reading to be applicable, seems to import the “vagueness,” which the SCC abhors. Instead of taking an opportunity to clarify the meaning of life in the context of death, the SCC choose to apply the catch-all likelihood test as found in the Mabior case and the Whatcott decision (see my previous blog for further discussion). What the Court fails to understand is that being alive is much different than being likely alive.

How does this connect to Schrodinger? Erwin Schrodinger’s 1944 What Is Life? book, based on a series of lectures, is part scientific, part philosophical treatise in which he applies quantum principles to biology in a search for an explanation of life. Many believe his book to be a precursor to the discovery of DNA. Life, in the Schrodinger world, is quantifiable and real as exemplified by genetic “code-script.” Although Schrodinger the quantum physicist would approve, Schrodinger the bio-theorist certainly would not.

Blogs As Graffiti? Using Analogy and Metaphor in Case Law

Legal reasoning requires the decision-maker to use both factual and legal analogies and precedents. Legal precedent provides a solid foundation for a decision as it is based upon an earlier decision, typically from a superior level of court, made in the same circumstances to the one being decided. Analogy is a much subtler concept, involving similarities between the two situations. Analogy, therefore, requires an analytical dissection of the two circumstances to find comparables. The beauty of analogy is not only in the similarities, but in the dissimilarities as well: oftentimes it is the distinctions between the cases that matter. Although there are a set of principles and rules to assist in the appropriate use of precedent and analogies, courts have also used metaphoric language to come to legal conclusions.

A metaphor “expresses the unfamiliar in terms of the familiar.” A connection is therefore made between seemingly unconnected objects with the happy result of revealing the objects true and very real similarities. Metaphors are rich and varied and a very compelling way of defining an object or concept. Advertising uses metaphors the best: for example, the “life is a journey” concept “flies” well when considering travel options. As a subset of metaphor is the language technique of “simile,” whereby the comparison between the two objects is proffered more directly by suggesting one object is like another. A simile such as “this fog is like pea soup” conjures up an immediate physical description of the fog, which transcends describing the fog as merely “dense.” But how useful is the use of figures of speech in case law? Is it a  “good fit” (using a tailor metaphor) with the legal principles of precedent and analogy?

Let’s look at a recent example. On March 2, 2012 the UK High Court in considering the issue of defamatory blog comments in Tamiz v Google Inc Google UK Ltd, found Google Inc., the provider of the blog platform, not responsible for the clearly defamatory comments. Justice Eddy came to the conclusion using a “wall covered in graffiti” analogy: Google is like the owner of a building and the defamatory comments are like graffiti placed on the external wall of the building. Just as the owner of the wall is not responsible for the content of the graffiti, Google, as the mere provider of the “space” in which the comments were made, is not responsible for the content of the blogs. Justice Eddy recognized that the owner of the wall or “internet space” may, once the graffiti or comments are made, remove or “whitewash” (do I sense another metaphor here? Whitewash as in censorship perhaps?) the comments. As stated by Eddy J., “That is not necessarily to say, however, that the unfortunate owner must, unless and until this has been accomplished, be classified as a publisher.”

This colourful and powerful analogy, although not truly a legal analogy, becomes the defining moment of this case. Google Inc. is then “cut” (sorry another tailor metaphor) from the case. But as compelling as this analogy is, the question still remains whether this is sound reasoning; sound enough to extricate Google from a lawsuit?

Let’s delve deeper into this analogy: Google provides the wall. Using the analogy to its fullest, Google doesn’t just provide the wall; Google owns the wall - as in the owner of the building with the graffiti sprayed on it. Taking this analogy further, Google owns the wall, which is then provided to others, bloggers, for their use. But the owner of the building does not “provide” the graffiti makers with a wall to spray. In fact, the graffiti on the wall is there without the consent of the owner.

Furthermore, the owner of the wall does have responsibilities to, as Justice Eddy so eloquently put it, “whitewash” or remove the offending marks. Not to do so, is usually in contravention of a City by-law, making the provider of the wall responsible for removal of the comments. Is that not the issue really in this defamation case? Removal of the comments is what is at the core of the lawsuit. Removal, which if it is not done in a timely fashion, does implicitly suggest the owner “likes” (as in Facebook “likes” if you need a metaphor) the comments.

The recent, Supreme Court of Canada case, Crookes v. Newton, is another slight twist on the provider as publisher conundrum. Newton, as the owner and operator of a website, provided hyperlinks to other Internet material, one such link contained defamatory comments regarding Crookes. The majority of the SCC, was careful to “contain” (yes, another building metaphor) the argument to the issue of hyperlinks as a form of expression and not as a form of publication. To hyperlink is not to “like” or approve of the linked material – it is merely to extend the research to another document and provide the reader with another source of information, which the reader can then access or not, and agree with or not.

To come to this conclusion the majority used good old fashion legal precedent and legal analogy based on case law. However, the generous use of metaphor assisted in creating a more compelling argument. In dismissing the Crookes publication argument, Justice Abella used the space or size metaphor to visually describe the spatially immense implications of “broadening” the meaning of publication in the circumstances of the case. Movement metaphor was also used to discuss the “innocent dissemination” exception as passive – almost robotic, without thought or action. The most powerful metaphor by far was the crux of the case as “hyperlinking is referencing”; a print metaphor, using visions of University research papers and academic writing. Then, to give the argument further weight (metaphor), Charter values are brought into the discussion with the caution against restricting the “flow” of information – a movement metaphor and a water metaphor.

The above illustrates an excellent use of legal principles and figures of speech to arrive (journey metaphor) at a cogent argument that has “legs.” This is another movement metaphor that implies the argument is not only a successful one but also a decision that will “achieve strong audience acceptance or interest.”

Which brings me back to the analogy in Tamiz and the dual difficulties found in that decision. The case highlights the difficulty in using analogy or figure of speech to enhance the already cogent legal analogy or precedent. It also shows the care which must be used in using figures of speech to make a point: if so used, the analogy or metaphor must logically connect the two objects as any fallacy arising from the connection will most certainly detract from the argument or finding.

We use metaphor constantly in making sense of the world around us. I highly recommend the book “Metaphors We Live By” written by the linguist George Lakoff and philosopher Mark Johnson for further reading on this fascinating subject. As a result of this seminal book, there is now a whole area of legal jurisprudence on the use of metaphor in legal reasoning (see also publications by professor Steven Winter). Being aware of this human penchant for metaphor and connection does provide another analytical tool (a device or work metaphor using the mind as physically embodied in the hands using a tool) to enhance our reading of legal text. It also provides us with a different view of legal argument and how that argument is communicated through case law.

Reading The Riot Act

Riots or violent disturbances of the peace are part of the human psyche. As early as 44 B.C., when the Roman mobs attacked the houses of Brutus and Cassius in an angry response to the untimely death of Julius Caesar on the Ides of March, the world has since experienced riots in every era. Riots occur for a multitude of reasons: from student protest as in the 1229 University of Paris students’ strike to revolution as in the Boston Tea Party of 1773 and from the various race riots in the United States throughout the 1900’s to the obscure reason of advant-garde music, when in 1913 the audience in the Paris Théâtre des Champs-Élysées listening to the debut of Stravinsky’s Rite of Spring ballet broke out in a violent booing frenzy. There have been riots over various alcoholic beverages as in the London Gin Riots of 1743 or the Beer Riots in Bavaria in 1844 or then only ten years later, the Portland Rum Riot. Sadly, I missed the Champagne Riot in 1911 France. However, increasingly, riots are not about protest but about a lack of sportsmanship or too much sportsmanship as in the case of the recent hockey related riots in Canada.

The Stanley Cup Riots, and I use the plural as there has been more than one (two in Vancouver, five in Montreal, one in Edmonton during playoffs), have been particularly egregious, costing the municipalities millions of dollars in damaged property and even millions more in prosecuting and punishing the participants. The Nika Riot of AD 532 might have been the first sports related riot, happening in the Hippodrome at Constantinople, then the centre of the remaining Roman Empire in the East. The two factions, Blue and Green, were supporting their chosen chariot race teams when both sides demanded the city release Blue and Green prisoners, who had been arrested, earlier, for disturbing the peace. In a moment, this sporting event became political and over the next few days a not unfamiliar scene played out as the Emperor Justinian first apologized and, when the mob was still not pacified, then slaughtered thirty thousand Blue and Greens in the Hippodrome. Ironically, it was Justinian who codified all Imperial laws into the Codex. See my previous posting on the codification of our criminal laws into the Criminal Code.

Although we no longer “read the riot act,” as they no doubt did in 18^th Century England when the Riot Act was first enacted, our criminal law does prohibit “unlawful assemblies and riots” under the Criminal Code. The 1715 Riot Act gave a Justice of the Peace or another person so authorized to disperse “groups of twelve people or more being unlawfully, riotously, and tumultuously assembled together, to the disturbance of the publick peace” upon proclaiming:

Our sovereign Lord the King chargeth and commandeth all persons, being assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the act made in the first year of King George, for preventing tumults and riotous assemblies. God save the King.

If the crowd did not disperse within an hour of this proclamation, the authorities had the right to “seize and apprehend” the rabble-rousers who would be subject to the death penalty.

Although the Riot Act was finally repealed in 1973, the Canadian offences of unlawful assembly and riot, under sections 63 and 64 of the Criminal Code respectively, are a distant reminder of the original crime. Instead of twelve people “unlawfully, riotously, and tumultuously” assembled, the Canadian counterpart, unlawful assembly under s. 63, requires three or more persons “with intent to carry out any common purpose” who:

cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they

(a) will disturb the peace tumultuously; or

(b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.

Similarly, section 64, defines the offence of riot as an unlawful assembly, presumably as per s.63, “that has begun to disturb the peace tumultuously.” Therefore, an unlawful assembly is about to become a riot, although not quite there, while a riot is exactly that: a full-blown tumultuous affair.

The defining term for these offences, in both the Criminal Code offence and the 1715 original crime, is the word “tumultuously.” To understand the meaning of this word, which is not defined in the Criminal Code, case law is needed. In the Berntt case, arising from the first Vancouver Stanley Cup Riot in 1994, at issue was the clarity of the meaning of the word “tumultuously” as found in s.64.

Defence argued the term was vague and therefore did not provide a clear understanding of the essential requirements of the crime. Without such clarity, defence argued, the accused’s ability to make full answer and defence was compromised. To try an individual on the basis of a vague law and, therefore, to potentially deprive the individual of his or her liberty if convicted would be contrary to the principles of fundamental justice under s.7 of the Charter.

The British Columbia Court of Appeal, in deciding the issue, referred to the 1992 Supreme Court of Canada decision in R. v. Nova Scotia Pharmaceutical Society and Justice Gonthier’s comments on the importance of limits, provided by clear language, which delineate our laws and permit legal debate. However, language provides boundaries only and are mere guidelines as stated by Justice Gonthier in the following passage:

Semantic arguments, based on a perception of language as an unequivocal medium, are unrealistic.  Language is not the exact tool some may think it is.  It cannot be argued that an enactment can and must provide enough guidance to predict the legal consequences of any given course of conduct in advance.  All it can do is enunciate some boundaries, which create an area of risk.  But it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made.  Guidance, not direction, of conduct is a more realistic objective. 

With guidelines comes context and in the end, the court found the word “tumultuously” must be read in conjunction with the other words used in the offence such as “riot” and “unlawful assembly,” which connotes a violent disturbance as opposed to an uproarious, perhaps even jubilant, crowd. History also imbued the term with particular meaning as the crimes, through their very definition, related back to old England and the Riot Act.

Thus, as they say, what goes around comes around and what was once a crime is still a crime. Interestingly, the discussion of boundaries and limits is exactly what the crimes of unlawful assembly and riot are all about: it is the lack of boundaries and limits that marks the behaviour as crimes as opposed to a Canada Day event on Parliament Hill where the crowd gathers in celebration and bon ami.

Sadly, as a coda to this posting, Ryan Berntt, the accused in question, was shot in the head by a police officer’s rubber bullet during the riot and sustained brain damage. In the end, it is individuals, both in the crowd and out of the crowd, who suffer the most. It is the individuals, not the crowd, who stand charged or must face the inevitable morning-after clean up. Perhaps this sobering reality is worth remembering. 

Let's Talk About: The Word "Crime"

What's in a name? A name is a label or a representation of an object, which through usage and custom, is accepted by society and then becomes identified with the object. The name gives us a familiar reference point which we can then use in discussing the object with others. A name becomes the short form of the object. Instead of describing and re-describing in detail the properties of an object when refering to it in conversation, we simply provide the given name and we have instant recognition and understanding.

Etymology is the study of the history of names: from where the word came and at what period in our history the use of the word began. This history of a word is intriguing. Much like a puzzle, the history of a word can reveal a secret past, which may provide an unexpected connection. Thus, the original intent of the name, which may have transformed through time and usage, is retrieved to provide knowledge to those who desire it.

The word "crime" is defined as "an act punishable by law, usually considered an evil act." In a later posting, we will look at differing definitions, when we discuss what is a crime in the context of law generally and criminal law specifically. But for our purposes today, the definition given is the one we will accept. The first known usage of the word "crime" was in the High Middle Ages around 1250. Within this time, the Medieval period, or "Age of Faith," was drawing to an end as Marco Polo explored and returned laden with spices and stories. The Renaissance was not too far behind.

The etymology of "crime" is from the Old French crimne, which came from the Latin crimen meaning accusation and the Latin root cerno meaning "I decide. I give judgment." However, Rabbi Ernest Klein, a Romanian-born Canadian linguist, in his Comprehensive Etymological Dictionary of the English Language, suggests that crimen is actually derived from the phrase, "cry of distress." The Latin was derived from the Ancient Greek word krima, which means a judicial sentence or condemnation.

The history of the word does reveal shades of today`s meaning but embues the word with much more colour than the dictionary meaning we used at the beginning of this posting. Crime also now speaks to the concept of accusation, which in turn speaks to the presumption of innocence as the accused has yet to be found guilty. Or the idea of justice or judgment as in the Latin and Greek root of the word. Finally, crime speaks of a cry of distress, an individual who has lost his or her way in life and looks to society to not condemn or judge but to lend guidance.

In this historical word play, crime has taken on different shades of meaning and caused us to think of the word in different way.