Ideablawg Weekly Connections: From Twibel to Chaucer

This week, I surfed the Internet and did some reading the old-fashioned way – nothing like holding and having a book - so let’s look at the week in review:

1.   Google Glasses are being talked about and well they should! As the next step in computer/human interface, these glasses would really come in useful in the courtroom when you need to bring up that name of a case – you know that name! Google Glasses could tell you that. Of course, Google Glasses can also keep the lawyers busy as in the case of the California woman, who was charged with distracted driving while wearing her special specs. The California law makes it illegal to “drive a motor vehicle if a television receiver, a video monitor, or a television or video screen, or any other similar means of visually displaying a television broadcast or video signal that produces entertainment or business applications, is operating” and, as she was also speeding at the time, a puzzled police officer pulled her and her Glasses over. The Judge, however, acquitted the feckless (not specless) woman, as there was no evidence the Google Glasses were operating at the time of the incident. My only question is: how could you ever prove that? Maybe the police need some new technology? Can that laser catch speeders and readers?

2. Peter Ackroyd, a British writer, historian and biographer, has written numerous fiction and non-fiction books, mostly about his beloved London. I have read a number of his books, most notably London Under, about what is found under the city – you’d be surprised what’s there - and The Casebook of Victor Frankenstein, a fictionalized backgrounder to the good Doctor. I have recently read a raft of his biographies; some from his brief lives series, including Turner, Poe, Newton, and Chaucer. The Chaucer bio was fascinating as Geoffrey Chaucer was a minor Court official, who really only wrote as a side career. He also had some legal training and was used by the Kings (he survived more than one) for delicate diplomatic missions to France and Italy. Not only does Ackroyd give us non-fictional accounts but he usually ties these peregrinations to a fiction book as well. For instance, he did a marvelous re-working (or translation) of The Canterbury Tales and then re-worked them even more to write Clerkenwell Tales. I also recently read his fascinating biography on Charles Dickens. By the way, watch for the Dickens movie to be released with Ralph Fiennes as the venerable, and love-struck (read the book to see why – the movie is called The Invisible Woman) author. Of course, Dickens did work as a law clerk in Chancery Court when he was young and his novel, Bleak House, brings his past experience to life (or death as we are talking wills) with a comedic flare that is both cynical and heartwarming. I have written a couple of blogs on Dickens in the past here and here

3. Back to law and the Internet – this time law and the Smartphone as Courtney Love successfully defends against a defamation case caused by her tweeting that her attorney, in her Kurt Cobain estate case, was “bought off” not to represent her.  Apparently, the tweet was supposed to be “private” and the jurors agreed. A “private” tweet therefore was not considered “twibel,” which is a libelous tweet of course. Not only is this the first twibel case but, I think also the next word to make it as the Oxford Dictionary Word! Selfies is so last month!

4. I have also been reading some law and imagery articles and I have been particularly struck with articles written by Peter Goodrich, who is the Director of the Law and Humanities program at the Cordozo School of Law. His writing is witty, vivacious, and thought provoking. Try reading his article on Specters of Law: Why the History of the Legal Spectacle Has Not Been Written, which speaks of the visible and the not so visible legal tradition that lawyers have constructed. 

The Ideablawg Connections Of The Week

This week, I am launching a new segment on my blog, The Ideablawg Connections Of The Week, wherein I will recommend items, some law related and some not, connecting them to other areas of interest. These items may be Internet based or print based (yes, there is still such an animal) and may be for viewing, reading, listening, or creating. This week, I recommend the following:

1. A film about Walter Benjamin, philosopher, critic, and prolific writer, whose critical thinking and sharp analysis of the world around him modernized the essay genre. Walter Benjamin, a German Jewish intellectual, committed suicide when he was turned back from a border crossing with Spain and France during the German occupation of France in WWII. This film is nuanced and provocative. For further reading of Walter Benjamin, read his magnum opus entitled The Arcades Project, a blinding riff on life, the universe, and everything inspired by the shopping arcades of Paris, or a compilation of his essays in Illuminations, edited with a forward by Hannah Arendt, which is reason enough to read this. Then read Hannah Arendt’s, Eichmann In Jerusalem, her controversial series of articles for The New Yorker, covering Eichmann’s trial and decide for yourself what “banality of evil” means. To help you decide, read Deborah Lipstadt’s concise analysis of it in The Eichmann Trial and then watch the 2012 biopic, which may mean an Oscar nomination for Barbara Sukowa. For a law connection, read articles on Hannah Arendt as an International Criminal Law theorist.
2. And now for something completely different: A NPR article of an interview John Rizzo, counsel to the CIA after 9/11, who has just written a memoir entitled Company Man: Thirty Years of Controversy and Crisis in the CIA, in which he discusses, among other things, his views on “enhanced interrogation techniques” or what we would call “torture.” Look for his last word on the subject of “waterboarding,” which he states, “…if the Justice Department had concluded — that these techniques constitute torture, we would never have done them. So I can't say they were torture. I didn't concede it was torture then, and I don't concede that it's torture now.” Really? Tell that to a group of Toronto lawyers, who called for Dick Cheney’s arrest for war crimes based on these interrogation techniques, when he was in Toronto in October 2013. Let’s also reflect on the Queen’s Bench of Alberta Justice Yamauchi’s decision in Simpenzwe, that “it is not just a dental drill or waterboarding that extracts confessions out of people. Equally sinister are the “more subtle, veiled threats that can be used against suspects.”
3. Totally unrelated is this article on the 10 “must have” apps for 2014. I like mailbox.
4. Atlantic Cities regularly has articles of interest to the committed urbanite. They also have a number of articles on crime and, although US-centric, they nevertheless remind us of the Canadian experience. The article on “Nearly 50 Percent of Black Men Have Been Arrested by 23” is sobering. Although, Canada does not compile such data, read the consistently excellent and relevant reports issued by the Canada’s Correctional Investigator, Howard Sapers,  and his recent report on “A Case Study of Diversity in Corrections: The Black Inmate Experience in Federal Penitentiaries.”
5. Finally, go see American Hustle, the Hollywood version of the 1980s ABSCAM – remember those grainy videotapes of payoffs by fake Sheiks – well watching it in Technicolor is so much satisfying and entertaining, including Christian Bale’s not well-disguised impression of the Mel Weinberg, a Bronx fraudster and confidence man. Is it just me or is Bale channeling Rob Reiner’s “Meathead” in All In The Family?

Episode Nine of the Ideablawg Podcasts on the Criminal Code of Canada: The Golden Thread Metaphor: Section Six And The Other Presumption Of Innocence

Here is the Podcast. Enjoy!

Episode Nine of the Ideablawg Podcasts on the Criminal Code of Canada: The Golden Thread Metaphor: Section Six And The Other Presumption Of Innocence

The Golden Thread Metaphor: Section Six And The Other Presumption Of Innocence Episode Nine of the Ideablawg Podcasts on the Criminal Code of Canada – Text Version!

The presumption of innocence – the concept that an accused is presumed innocent until proven guilty - is easily the most well known legal principle. As important as this principle is to our concept of justice, the presumption of innocence has become much more than a legal tool. It has become part of the fabric of our society. Today, every citizen is aware of the presumption of innocence in a criminal case. This principle has transcended the legal arena to become one of our society’s fundamental values. It is not only a value understood by all but it is part of our culture.

Indeed, as an example of the ubiquitous nature of the presumption of innocence, we can find the concept used as a title of a book, such as in Scott Turow’s novel, Presumed Innocent and the movie version with Harrison Ford. Or used as almost a character flaw as in one of my favourite legal literary heroes, Rumpole of the Bailey, written by John Mortimer Q.C. In those stories, Horace Rumple, the rumpled everyman barrister, finds personal solace in his belief in “the health-giving qualities of claret, of course, the presumption of innocence, and not having to clock into chambers in the morning.” In the classic play/movie 12 Angry Men, when Juror #8, played by Henry Fonda, reminds Juror #2, played by John Fiedler, that “the burden of proof is on the prosecution. The defendant doesn’t even have to open his mouth. That’s in the Constitution,” we nod our heads in agreement and relief. Although many of us could not say which section of the Charter (s. 11(d): “to be presumed innocent until proven guilty”) encapsulates this concept, we all take comfort in knowing it is there.

But there is another place where the presumption of innocence is recorded in Canadian law and that is section 6 of the Criminal Code, which is entitled “presumption of innocence,” the first part of which reads as follows:

Where an enactment creates an offence and authorizes a punishment to be imposed in respect of that offence,

(a) a person shall be deemed not to be guilty of the offence until he is convicted or discharged under section 730 of the offence; and

(b) a person who is convicted or discharged under section 730 of the offence is not liable to any punishment in respect thereof other than the punishment prescribed by this Act or by the enactment that creates the offence.

Now, that’s not really the “presumption of innocence” we have come to expect, is it? When you read this section it just does not seem to have that visceral punch I talked about earlier when reacting to the lines spoken in 12 Angry Men. It also does not seem to be conveying the deep, and almost personal societal, values underlying this fundamental premise.

First, let’s look at the wording. Unlike the Charter equivalent, there is nothing in section 6 about a “presumption” only a “deeming.” So the very word, we hang on when discussing innocence, the “presumption,” which gives the concept such solemnity, is gone. Second, there is nothing in the section about “innocence” although the title suggests it. However, as we know from my previous podcasts, in the Criminal Code the headings are there for convenience only and do not form part of the section itself. Instead, I would suggest, the section seems to be contrary to the presumption of innocence as it focuses instead on the concept of guilt and punishment. The section describes the circumstances in which the court can finally impose punishment. Now to be sure the court needs to hold off until conviction, but as soon as that pre-condition is fulfilled the sanctioning regime kicks in and punishment is not only available but also inevitable. Section 6(1)(b) continues this punishment theme by ensuring that the punishment can only be that as prescribed or authorized by law but it adds nothing to our concept of the presumption of innocence. So this section is not really about the fundamental premise of our criminal justice system, the golden thread of criminal law, but about when punishment can, and will, be meted out.

To understand why this section reads as it does, a little legislative history is in order. The section first arose in 1886 legislation on punishment entitled An Act Respecting Punishment, Pardons, and the Commutation of Sentence, and was not only subsumed into the first Criminal Code but was placed in the latter part of the Code where the punishment sections resided. The purpose of the section was not therefore to trumpet the fundamental principle of the presumption of innocence but to reinforce the applicability of punishment at the time of a finding of guilt. This concept of punishment only upon conviction was not only consistent with English criminal law but was consistent with chapter 39 of the Magna Carta which stated that:

No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

In the original Latin phrase of this article “nisi per legale judicium parium suorum vel per legem terrae,” the Magna Carta protects the accused from punishment without judgment of his equals and in accordance with “the law of the land.” So this idea that an accused is guilty only when he is found guilty, remained under the general punishment section of the Code until 1955, when it was moved to the front part of the Code, namely to section 5(1), but was still viewed as a punishment section as it was then entitled Punishment Only After Conviction. However the wording of the 1955 section does resemble the wording we have today under section 6. It is not until the 1985 revision of the Code, when the section was repealed and reinvigorated as section 6 that it becomes the more venerable presumption of innocence. Of course this reconstitution (forgive my pun) came after the 1982 enactment of the Charter of Rights and Freedoms.

Understanding this legislative history does give us a better sense of how it came into the Code but why it was renamed the presumption of innocence is an unanswered question requiring deeper investigation than an Internet search. Certainly, looking at case law, this section is rarely invoked as authority for the principle of the presumption of innocence. A quick survey of cases reveals there are only a few such cases (these cases can be found here, here, here, and here) where section 6 was relied upon as propounding the concept but always invoked with the constitutionalized version found under s. 11(d) of the Charter.

Although I cannot explain why this presumption section is so named, I would like to take a few moments to consider where the concept of the presumption of innocence arose in the first place. In my earlier posting on the issue, I suggested, through the academic writings of George Fletcher that the concept actually migrated to criminal law from the English civil law. I do not want to return to that discussion, instead I want to take us to the moment when the presumption of innocence becomes imbued with the gravitas it now enjoys – the particular moment when the presumption of innocence transformed into the fundamental principle it is today. I have already alluded to that moment earlier in this podcast when I described the presumption as the “golden thread of criminal law.” In first year law school there a few seminal or landmark English cases we discuss and end up knowing virtually by heart. One of them is the case where this “golden thread” metaphor is first used, the 1935 English House of Lords case of Woolmington v. DPP.  The facts of the Woolmington case do not concern us here but the decision, what is written by the then Lord Chancellor of Great Britain, Viscount Sankey, does.

In order to set the stage for this momentous decision, I need to give a quick legal backgrounder on Lord Sankey and the great impact he had on Canadian law. After the Supreme Court of Canada in 1925 found women were not “persons” under the British North America Act and therefore ineligible to sit in the Senate, the case, known as the Persons case, was appealed to what was then the highest level of appeal, the British Judicial Committee of the Privy Council. Civil appeals to the Privy Council were abolished in 1949, while criminal appeals ended in 1933. Lord Sankey, as a member of the Privy Council, wrote the appeal decision in the Persons Case or Edwards v. Canada (Attorney-General). In the case, reversing the Supreme Court of Canada decision and finding women were indeed “persons,” Lord Sankey commented on the argument that historically women were disbarred from public office. Despite this historical fact, Lord Sankey concluded that “the exclusion of women from all public offices is a relic of days more barbarous than ours” and that “customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared.” In the Persons Case there was no reason why women could not discharge the parliamentary duty of office. In terms of the efficacy of the actual British North America Act, which today we call the Constitution Act, 1867, Lord Sankey, famously remarked that the Act “planted in Canada a living tree capable of growth and expansion within its natural limits.” This metaphor of the Constitution as a living tree has taken root since the 1930 Persons Case and has become a guiding doctrine in our constitutional jurisprudence.

Needless, to say Lord Sankey has a way with words and the Woolmington case was no exception. On the issue of presumption of innocence, Lord Sankey surveyed the textbooks on the issue and was perplexed to find a suggestion that the presumption was one of guilt and the burden was on the accused to prove otherwise. After running through more cases, Lord Sankey described the fundamental importance of the presumption as:

Through-out the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the
defence of insanity and subject also to any statutory exception.

Lord Sankey then connects the presumption of innocence with the burden of proof, which requires the Crown to prove guilt beyond a reasonable doubt. This connection is explored in my previous blog on the issue. So, it was Lord Sankey who gave use this strong visualization of the presumption of innocence and turned the principle into something much more.

How Lord Sankey came to this golden thread metaphor is puzzling. I suggest that this metaphor must have come from the Greek myth of Ariadne and Theseus. Ariadne gave Theseus a golden thread to help him escape the Minoan Labyrinth after he killed the Minotaur. Thus, the presumption of innocence, as the golden thread of Ariadne, leads the accused out of the maze-like machinations of the criminal law.

This thread theme is reinforced by a further metaphor, which I also referred to earlier in my podcast; that the presumption of innocence is part of the “fabric” of our society. Indeed, I found a 1965 case, R v Dixon, from the then District Court of Ontario, written by Mr. Justice Robinson wherein he describes the presumption as the “golden thread” that “runs through the warp and woof and is thus firmly imbedded in the whole fabric of the administration of English and Canadian criminal justice.” When I first read this passage, not unlike a Wiki page, I thought someone added the phrase “warp and woof” for a joke. But, like a good researcher, I looked up “warp and woof” and found the following definition:

The essential foundation or base of any structure or organization; from weaving, in which the warp — the threads that run lengthwise — and the woof — the threads that run across — make up the fabric: “The Constitution and the Declaration of Independence are the warp and woof of the American nation.” This expression, used figuratively since the second half of the 1500s, alludes to the threads that run lengthwise ( warp ) and crosswise ( woof ) in a woven fabric.

So this thread metaphor is taken in a different direction but is also a good candidate for explaining Lord Sankey’s “golden thread” turn of phrase. By the way, I did take my research a little further to find other cases that have used this archaic phrase. I found only a few cases, some which were actually about fabric making but there was a use of this metaphor in two Supreme Court of Canada constitutional Division of Powers cases; Reference as to the Validity of Section 6 of the Farm Security Act, 1944 of Saskatchewan and the 2009 Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters. Notably, in the 2009 case, Mr. Justice Binnie used the phrase in a delicious quote invoking the world of the 1860s:

The current Canadian economy would be unrecognizable to the statesmen of 1867 and, to borrow an analogy from Thomas Jefferson, one would not expect a grown man to wear a coat that fitted him as a child.  The coat is of the same design, but the sleeves are longer and the chest is broader and the warp and woof of the fabric is more elaborate and complex.  Adopting a purposive approach to constitutional interpretation, as we must, what is important is not how transportation was viewed in 1867 but rather to match in our own era the level of regulation (federal, provincial or territorial) appropriate to the nature and scope of the undertaking.  Now, as in 1867, when a transportation undertaking connects or extends “beyond the Limits of the Province” its regulation is assigned by the Constitution Act, 1867 to the federal level of authority.

In 1859, Charles Dickens also used a golden thread metaphor in A Tale Of Two Cities, to suggest a strong bond of familial love created by the indomitable Lucie. Although, there is a strong affiliation between the criminal law and the presumption, I still prefer the Greek myth connection. I should recommend here my previous blog on Charles Dickens and the law called Charles Dickens Is On The Side Of Justice wherein I discuss some of the more legally minded passages of Dickens’s novels. 

One final aside on this golden thread metaphor brings us to American literature and Nathaniel Hawthorne’s Scarlet Letter, where Hester is required to sew a letter “A” onto her clothing as her punishment as an adulterer. As time wears on, Hester proudly marks her shame with an “A” made of golden thread. For Hester, the golden quality of the thread reflects the shame of the community who branded her with their cruelty.

In some way the golden thread of the presumption of innocence protects us from a similar fate – a society devoid of compassion - or as Chief Justice Dickson, as he then was, reminded us in the 1986 Supreme Court of Canada Oakes case, the presumption of innocence "confirms our faith in humankind; it reflects our belief that individuals are decent and law‑abiding members of the community until proven otherwise." To me, his words are indeed golden.

Crime And Punishment: “Changing Lives Through Literature”

Judge Willmore of the 1^st District Court in Logan, Utah may just have the right idea: impose a meaningful sentence on offenders, which will positively impact their lives and give them an incentive to make the right choices in the future. Judge Willmore does this through rehabilitation through education, when he requires offenders to read and, on occasion write a report on, Victor Hugo’s Les Misérables as part of their sentences.

Les Misérables, Hugo’s tour de force exposes the societal ills of 19^th century France through an intertwining story of lost youth and redemption. It is a story of hope for those who have done wrong in the past and an example of how acts of kindness can turn evil into good. An excellent read for those in trouble and who want to turn their lives around.

Such alternative sentencing options are unusual in a system that prefers deterrence to rehabilitation, yet the idea of using literature to rehabilitate is not a “novel” idea. In Massachusetts, for example, a Judge has the ability to sentence an offender to a special program called “Changing Lives Through Literature.” To be eligible, the offender must consent and must not be a sex offender or convicted of murder. Once ordered to this “treatment by books,” the offender must attend a three-month course, taught by a College level professor, wherein they read up to 6 novels. After completion of the course, the offender discusses the novels with the Judge, the Professor, and the other offenders who are participants. By all accounts, the program has been successful and has peaked the interest of other Districts across the United States. Although, I have found reference to the program starting in Canada, I have not been able to confirm this.

The idea of rehabilitative self-improvement has been used beyond the courtroom as well. The “Books Through Bars” program in California sends “quality reading material to prisoners and encourage creative dialogue on the criminal justice system, thereby educating those living inside and outside of prison walls.” The program itself has expanded to provide publication opportunities to prisoners, prison libraries, and other educative forums.

The Canadian justice system would benefit from such forays into literature as rehabilitation. Certainly the sentencing regime found in the Youth Criminal Justice Act could provide a platform for such unique sentencing programs. Clearly, education goes hand in hand with self-worth, which many offenders are lacking. The therapeutic effects of a “good read” should not be underestimated and need to be explored in an era where traditional sentencing practices seem an incongruous fit with today’s society. Perhaps it will be only a matter of time and, of course funding, before we see the positive effects of “doing time” through reading but in the meantime, read Les Misérables for yourself and enjoy the educative effects of good literature.