Ideablawg’s Weekly Connections: Peace And Violence

This past week there were some defining moments in history all in a background of love, war, violence, and peace.

1. All You Need Is Love: This week we celebrated the anniversary of The Beatles on the Ed Sullivan Show. In this moment of reflection, let us consider the various ways the boys engaged law and authority. Consider Paul’s marijuana as found by the Japanese authorities in 1980 or John’s deportation battle in the USA. If you want something more uplifting – recall John and Yoko’s bed-in at Montreal’s Queen Elizabeth Hotel. Here is a great legal connection – Allan Rock, lawyer and politician (now President of the University of Ottawa) – managed to convince the couple to go from Montreal to Ottawa in 1969 when he was President of the University of Ottawa Students’ Union. Here is a personal connection – Allan Rock taught me Civil Procedure II while I was at Osgoode Hall Law School. Only two degrees of separation between John Lennon and me!

2. War: Sixty-nine years after the end of World War II and we are still learning something new about the events of the War years. The Monuments Men, a movie that opened this past week, enlightens us on how art and architecture was saved or not saved during the war. I also recommend reading the book but if you do, read it with an iPad nearby to reference not only the art pieces but also the places in which the art was found. This further connects to the ongoing struggle for the return of art stolen during the war. I have written a previous blog on the issue. This past week, Germany considered extending the law allowing Jewish families to recover this art as more caches of such art are being found.

3. Peace: One of my personal heroes is Richard Feynman – the Nobel Prize winner in Physics who passed away 26 years ago on February 14, 1988. Not only was Feynman an engaging man and a tremendous mentor and teacher but he was also a clear thinker with a heart of gold. He’s the one who dropped the O-rings into the ice-cold water to demonstrate how the Challenger disaster accident really occurred. He also ended his minority report on the disaster by stating “For a successful technology, reality must take precedence over public relations, for Nature cannot be fooled.” A dramatization of these events aired on the Science Channel last year with William Hurt playing Feynman. Having read all books Feynman, I recommend the autobiographical What Do You Care What People Think? and his lectures on Physics. Although he was one of the young physicist working on the Manhattan project and was at Los Alamos during the War, he had a very strong reaction to the dropping of the bomb on Hiroshima. I strongly recommend watching his interviews on the subject here.

4. Violence: Is the independence of the judiciary something to fight about? In Turkey, a fistfight broke out over the government’s plan to restrain the judiciary. Certainly, this undemocratic move has political overtones in a country rife with such difficulties. This latest move is unsurprising considering the government’s past treatment of free thinkers such as Orhan Pamuk, the Nobel Prize recipient in Literature, who was charged with a criminal offence after speaking out on the Armenian genocide. Ultimately, the government dropped the charges but certainly this was a precursor to the events of Taksim Square and to the latest round of violence. Orhan Pamuk is another one of my role models – read Snow and My Name Is Red to experience Pamuk’s lyric and unforgettable prose.

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.

Is The Law Round?

Neil Degrasse-Tyson is an American astrophysicist who is also a cult hero. His books, written for the layman, are extremely popular and readable. He has almost a million followers on Twitter. The Imaginary Foundation, an experimental research think tank, which also hosts a website and blog where they post cool ideas, has multiple postings on Degrasse-Tyson. There is even a magical video as part of the Symphony of Science series where one of Degrasse-Tyson’s lectures is to put to music.  In short, he rocks. His lecture series, which I have had the opportunity to watch, are informative, interesting, and hilarious. He is above all thought provoking and the lecture I recently watched on “On Being Round,” started me thinking about the connection between “being round” and the law.

“Being round” is such an important concept in our physical world because all objects want to be round. Being in a state of roundness is being in the most efficient shape as it provides the largest surface area for an object. It is, in other words, the natural shape for an object. Rain, is spherical as it falls from the sky. Our stars, planets, and even the observable Universe are round. However, other forces, such as gravity, may squash the sphere either a little, like our earth to make it more an oval shape, or completely, like our flattened solar system. Either way it is the circle shape that is the most natural and most sought after shape.

So applying this premise, I ask is the law round? In many ways the law is, particularly if you consider that roundness means that two ends meet to complete an object or an event. Certainly in the civil context, usually the best-case scenario is where the parties come to an agreement before a trial of a matter. This is the most efficient and equitable outcome.

There is also continuity and stability with roundness. The rule of law is in place to provide a familiar and thus stable form of discourse in society: we all understand what a stop sign means and we all have the same expectations when we see it. However, despite this, there are times when people do not act as the rule of law dictates. In these instances, the bubble bursts and the completeness of the law seems to be imperfect. Like the forces of gravity causing our planet to bulge in the middle and therefore deviate from the perfect spherical shape, the law must provide an outlet or a mechanism for those situations when the perfectness of the law is broken. Criminal law attempts to provide another set of rules for those instances, perhaps making the law more elliptical in shape than perfectly round.

There is one instance in the criminal law, where roundness is everything: the sentencing circle. The sentencing circle is an innovative sentencing practice, which arose out of the need to provide a more meaningful and relevant outcome to criminal offences for the Aboriginal community. Our criminal law, based in English common law, imposes sentences based on traditional sentencing concepts such as deterrence, retribution, and rehabilitation. These concepts are decidedly based on Western ideals and do not accommodate differing cultural practices. This rigidity translated into a disproportionate amount of Aboriginals in the criminal justice system, resulting in a disproportionate number of Aboriginals serving jail sentences. It was clear that the traditional precepts of the criminal law did not resonate with the Aboriginal community. It was equally clear that the adversarial system so entrenched in our criminal law was part of the problem. This conflict-oriented system was at odds with the Aboriginal values of community and collective respect. The idea of a sentencing circle embraced the concept of reconciliation and collaboration requiring the input of the community, not just the judge and case law, in crafting an appropriate, and hopefully rehabilitative, sentence. Thus the “round-table” becomes part of the criminal law nomenclature.

Unfortunately, unlike nature, “being round” does not guarantee success. According to the 2011-2012 Annual Report of the Office of the Correctional Investigator, released by Howard Sapers, the number of Aboriginal offenders in the penitentiary system has increased. In fact, over the past ten years the Aboriginal inmate population has increased by 37.3% and although only 4% of the Canadian population is Aboriginal, 21.4% of the penitentiary population is Aboriginal. Although, sentencing circles are not typically used for the most serious offences and this could explain why the numbers in the penitentiary system are still high. However, this does not mean that alternatives to traditional criminal law do not work. Indeed, to “think outside of the box” and to be open to different legal solutions, may in fact, make the law more transparent, more equitable, more efficient, more impactful, and well, more round.

Criminal Law and the Science of Prediction

It was a devastating earthquake on many levels: loss of life as over three hundred people died, loss of property as buildings crumbled, and loss of history as an ancient medieval fortress town came tumbling down. All it took was seconds as the earth shook on April 6,2009 in the tiny hilltop village of L’Aquila, Italy. Yet, behind the disaster were years of earthquake readiness and scientific predictions. Behind the devastation was months of tremors; warning signs that something was not quite right. Yet, disasters happen and this one certainly did.

But was there someone to blame? The government thought so when they charged six scientists and one government official with manslaughter. Finally, after a lengthy trial, on October 22, 2012, Judge Marco Billi found them guilty of manslaughter and sentenced them to six years imprisonment. Those convicted included the head of the Serious Risks Commission, the Director of the National Earthquake Centre, and a physicist. The prosecutor built a case of mismanagement, inaccuracy, and the withholding of crucial information, which could have saved lives. The defence emphasized the unpredictability of earthquake prediction and the “chill effect” such a verdict would bring. Indeed after the verdict, a number of Italian scientists quit government posts as scientists across the globe warned of the harmful effects the verdict would have on future research efforts.

There are clearly two sides to the issue but, when looked at more closely, the two sides are not in opposition. The prosecutor is correct in characterizing erroneous or even untimely information as an act or omission, which can and should ground a criminal charge. In Canada, manslaughter requires an underlying unlawful act, which can be viewed as objectively dangerous in nature, which then causes the death of a human being.  Here, the allegation the scientists knowingly mislead the people of L’Aquila, may be a basis for such a manslaughter charge.

However, a mere failure to accurately predict a major disaster is not, in itself, a basis for a manslaughter charge. If it were, the defence’s concern that such prosecution would curtail scientific innovation would be correct. Such a prosecution would be the antithesis of the scientific method. A scientific hypothesis must be first tested before accepted. If the experiment does not produce the results expected, then the hypothesis is modified: such trial and error is needed to produce a final result. Without the ability to make mistakes with impunity, many medical treatments would not be developed.

There is also the difficulty with predictions, whether under the rubric of science or not as seen by the successes and failures of polls and the pollsters who interpret them. As Nate Silver, predictor extraordinaire, explains in his new book "The Signal and the Noise," although some outcomes are predictable if we crunch enough numbers and gather enough data, some, like earthquake prediction, is not possible at this time. How then can we expect a standard of behaviour in an area that is impossibly non-standard?

There is also, a “half-way” opinion between the two: that certain failures or breaches of rules should stay in the regulatory arena and sanctioning should be through the controlling regulatory scheme as opposed to the criminal law.

All of the above is, of course based, on the facts and the level of liability would be commensurate with those facts. In the Italian case, if the findings of the trial Judge were as submitted by the prosecutor, then not unlike the Walkerton, Ontario tainted water incident, the criminal law is properly engaged. However this case is viewed the decision has caused much debate. To sample the various viewpoints, read this, this, this, and this. To read more about public disasters that attract the intervention of criminal law, please read my posting from January 15, 2012 on Public Disasters and the Criminal Law and my posting from February 25, 2012 entitled Safety First: Laboratory Safety and the Criminal Code.

Famous (Legal) Battles of Ideas

In yesterday's post on the anniversary of the first flight, I commented on the patent infringement suits between the Wright brothers and Glenn Curtiss, which essentially ended in a "draw," so to speak, as the corporate legacies of both, merged to form the Curtiss-Wright Corporation.

But such arguments over "who's on first," is, unfortunately, common to the arena of ideas. As famous as the invention of the airplane is, the invention of the telephone as a form of mass communication has had an even greater impact on the world's social and political structure. Yet here too was a legal battle over who intellectualized first. Although Alexander Graham Bell, in 1876, patented his electronic speech transmitter first, Elisha Grey, patented his "new art of transmitting vocal sounds telegraphically" only hours later. The ensuing patent suit ended with Bell's victory, which explains why we receive monthly bills from Bell Canada and not Grey Telephone Co. 

The patent concept arose from the written granting of rights and privileges by the monarchy under royal seal. Thus, the Latin "litterae patentes" means "open letter." The Venetian glass-makers of Renaissance Italy informally made use of this patent system. Thus, the first recorded patent in 1449 England was a patent for a glass-making technique.

Although I could not find an estimate of the number of patent law suits to date, a new study suggests the financial costs, in the past four years in the USA, have risen to $83 billion per year. In August 2011 alone, there were 294 patent lawsuits in the USA. According to some critics, we are experiencing a "patent bubble," with most major intellectual corporations involved in multiple patent suits. For example, Apple is embroiled in 97 "open patent" cases alone.

These "battles of ideas" span time, place, and area of expertise. The obvious conflicts come from the inventors: Thomas Edison was involved in multiple patent suits. In the gaming arena, the legal battle over Tetris was as epic as the game. The Zuckerberg vs. Winkervoss and Winkervoss (or Winkervii) battle spawned a movie. The Newton and Leibniz argument over Calculus, still rages today. 

Such arguments have spilled over into the Arts as well. Jeff Koons has been both the initiator and defender of artistic copyright suits. Stephen Joyce, James Joyce's grandson, has scrupulously, some say miserly, restricted the use of his grandfather's writings. Although June 2012 sees the end of his copyright fiefdom, the repercussions of his aggressive stance has caused no end of intellectual difficulties.

Musically, legal accusations abound. In a recent U.S Supreme Court argument on the limits of copyright legislation, Chief Justice Roberts reminded the Court of Jimi Hendrix and his famous rendition of the "Star Spangled Banner." In response to the government's support of the new legislation, Roberts commented on Hendrix when he stated "assuming the national anthem is suddenly entitled to copyright protection that it wasn’t before, he can’t do that, right?" 

Finally, we must come full-circle, as I am wont to do, and mention the penultimate legal battle of ideas: the Scopes Monkey Trial, famously depicted in the play/movie Inherit The Wind and upon which I have blogged previously. The clash of beliefs as represented by the Scopes case and still on-going today, is a real testament to how dearly we as individuals, and as society, hold onto our ideals and ideas.

Which makes one wonder: Is there a patent for that?