Music, Noise, And Expression

Yesterday evening I attended Impromptu, a collaborative concert showcasing avant-garde or experimental musicians sponsored by New Works Calgary. Although, I had heard the music played on the CJSW's Noise radio program, to actually be present when the musicians compose and play in such a contemporaneous fashion, is truly wonderful. But being the lawyer that I am, I began to wonder about the expressive content of music, and particularly, the expressive content of noise.

The City of Calgary's noise bylaw or Community Standards Bylaw which prohibits continuous and non-continuous annoying or disturbing noise, including music. Whether or not the sound is "objectionable" according to the bylaw, is a question of fact for a Court to determine. Yet, what may be music to one person's ears may be noise to another person. What is objectionable to one may not be objectionable to another. Community standards shift and change over time, over place, and over age and temperament of the listener. 

In terms of Charter protection, section 2(b), freedom of expression, protects the expressive content of an individual. Certainly, in some circumstances, sounds can have expressive content and thereby be worthy of protection. In the Supreme Court of Canada decision in City of Montreal, both the majority and dissenting justice found noise can have an expressive content. However, in the majority's view "while all expressive content is worthy of protection, the method or location of the expression may not be". Thus an amplification of music onto a public street may be protected as long as it does not impede the public's use of the area for passage or communication. In the end the final determinant is whether the "free expression in a given place undermines the values underlying" the Charter right of freedom of expression. To determine this the historical function of the public area must be reviewed as well determining whether or not the expression undermines free "democratic discourse, truth finding, and self-fulfilment." The majority upheld the municipal bylaw as a valid justifiable restriction.

Justice Binnie, writing the dissent, disagreed the bylaw was benign and justified. His comments on expressive content is interesting. Based on the Larousse definition of noise or bruit in French, is not intrinsically a nuisance. Binnie's concern over the wide breadth of the bylaw included the scenario of a McGill student listening to Mozart with the window open or Stephen Hawking amplifying his voice through his voice assistance device. He found the legislation unjustifiable. 

Expressive content as a signifier of Charter rights under s.2(b) in the end is not the full expression of what s.2(b) protects. Shifting society values is ultimately what gives our Charter meaning. But values do shift. Once Beethoven's Fifth Symphony was considered "noise" and even, according to Goethe, "a threat to civilisation." So what is noise today may very well be the music of the future.

Poetic Justice?

Does poetry have a place in the courtroom? An Ottawa Crown thinks so. In an attempt to convince a judge to convict an accused of an impaired driving charge, the Crown set his submissions to rhyme. Although the judge convicted the accused, she did not mention the use of the unusual literary device. My advice to the Crown: don’t quit your day job.

Poetry and the law are no strangers. Many eminent poets have also been trained in the law such as the American, Wallace Stevens and the Spanish poet, Frederico Garcia Lorca. In Canada, F. R. Scott was a legal scholar who also waxed poetic. He held the position of the McGill Dean of Law in 1961 and was a well-respected constitutional/human rights litigator. Indeed, he was a vocal proponent against the Quebec anti-communist statutes known as the “Padlock Laws.” His poems are beautiful. They are insightful reflections of a proud Canadian and are well worth reading.

But does poetry, for it’s own sake, have a place in the legal arena? It depends on the use. In the Emkeit case, the Crown read an inadmissible and inflammatory poem to the jury on a murder trial. Although the majority of the SCC did not overturn the conviction, the strongly worded dissent by Hall, Spence, and Laskin JJ. suggest they were not amused by the “so-called poem.”

On the other hand, in light of the contextual approach used by the SCC in Charter cases, poetry and other literary material may have a place in elucidating and interpreting Charter rights and values.

For those interested in further reading, there are suggestions at the Law and Literature blog from April.

Update on Friday, October 14, 2011 at 1:03PM by Lisa A. Silver

I just did a very quick search of Supreme Court of Canada cases to see if any literary books and/or authors have been refrred to or quoted. In the 2003 Wu case, Binnie J., speaking for the majority, on the issue of the use of conditional sentences in lieu of fines, referred to the concept of debtor's prison and said:

The trial judge of course put his finger on a serious problem.  Debtors’ prison, a dreadful institution excoriated by Charles Dickens in Little Dorrit, is no longer with us.  But according to the most recent report from Statistics Canada, 17 percent of all people in custody in provincial or territorial institutions in 2000-2001 were jailed for default on unpaid fines...

By using the Dickens analogy, Binnie J. quickly transports us to the dank and dark world of 19th century England with great effect. Now, this is the way law and literature can really connect!