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.

Longreads For the Holidays

The holidays is a perfect time to indulge in a book or a longread. In Twitter nomenclature, a longread is an online article which will typically take longer than the usual five minutes or less one might spend reading a web page. There is a good reason searching the internet is called "surfing": one doesn't want to spend too much time on that big wave. It will either peter out and disappoint or it will come crashing down and inundate us.

In any event, the following is a list of 5 longreads I found:

1.Karyn McCluskey: the woman who took on Glasgow's gangs: This is an article of one person's fight to find peace in a turbulent City. Karyn McCluskey, a former nurse, forensic psychologist, and head of intelligence analysis for Glasgow, turned the City's gang mentality around by understanding how violence worked "like an infectious disease" and beget "recreational violence," which in turn created the City's gang mentality. Through the use of a Boston-based initiative called "focused deterrence strategy," the scheme couples zero tolerance with, what I can only describe as, an intense collective "scared straight" program. 

2. Sleep Disorders Common Among Cops: Study Fascinating longread of a study which indicates 40% of police officers in North America suffer from sleep disorders, which may impair their judgment and reaction time. The actual journal article from JAMA is for purchase only but the Abstract is here. There is also a companion author video here.

3. A Guide to the Occupy Wall Street API There is so much out there on the Occupy movement but this longread puts an apt API spin on it. 

4. Armenian Genocide Articles: I have connected some short read articles on the Armenian genocide issue, which has been re-ignited by the recent French Bill criminalizing denial of the World War I massacre. The incredible reach of this issue makes these connections even more fascinating but the real issue of the massacre is what makes world politics disturbing. Read the articles here, here, here, here, and finally for an article on how art connects to life: here.

5. Who Owns The Words? This is from 2010 but a very relevant longread, Texts Without Context. This is a book review of Reality Hunger, a "book" by David Sheilds. The book is a compilation of excerpts of other writer's works, which are at times manipulated or micro-managed to suit Sheilds's intent. Many of the quotes are taken out of context and as such, become, through a fresh reading of the words, imbued with a new meaning. In this way, Sheilds makes these words his own. Two connections come to mind for me: Stanley Fish's Is There A Text In This Class? and the use of music sampling and remixing in hip-hop and dubstep.

So kick back and relax this weekend with some #longreads or better yet, find some for yourself! As Sir Arthur Conan Doyle wrote as Sherlock Holmes: "What one man can invent, another can discover."

Caring Communities, Crime, and Jane Jacobs

Yesterday, I discussed the new twist on Halloween manufactured by schools who view the holiday as sending the wrong message to impressionable children. Two schools in Calgary, in an effort to promote diversity and caring, prohibited violent or scary costumes and held "caring" assemblies. Parent council members applauded the emphasis on caring communities but were not as impressed by the promotion of Halloween as a symbol of that notion. I agree. The connection to Halloween seems forced and proffers an inconsistent message as opposed to a positive one.

However, the concept of teaching children the importance of a caring community should be embraced by the educational systems. For example, there is clear evidence that community based policing works to reduce crime, particularly in case of young offenders. But community caring can have even greater impact on crime reduction; just ask Jane Jacobs.

Jane Jacobs, in the early 60's wrote a book called The Death and Life of Great American Cities. In this book she outlined her theories on why so many American cities seemed to be faltering, both socially and structurally. Jacobs was not a city planner nor was she academically trained in the area. She did however have a keen eye for observation and an heightened awareness of urban issues. Her book was devastating. Full of common sense and anecdotal evidence, her views brought to light the serious misstep city planners were prone to make; permitting empty grey areas between public and private areas, which encouraged crime and discouraged community ownership.

Indeed, community caring is at the core of Jacobs's theories. In order to have a safe community we must all be community watchers, effectively the "eyes on the street." However, this will only naturally happen if, according to Jacobs, we have a vibrant and busy sidewalk life. This means people. This means strangers. But this also means watchful eyes directed at the community. In short, busy City life, as exemplified by busy sidewalks, creates a caring community, which has our "backs" so to speak. Thus, we can freely move about the City, without fear, without the use of the artificial eyes of security cameras, in a caring vibrant, diverse community. 

Recently, some fifty years after Jacobs's ground-breaking theories, there was an article in the Calgary Herald on the importance of reducing crime through proper city planning. Isn't it about time we listened?

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?

When Does One Marijuana Plant Plus One Shared Joint Equal Nine Months Incarceration?

Yesterday, I read a number of twitters about the new Omnibus Crime Bill now making its fast and furious way through the Canadian Parliament. This particular set of tweets pointed out an absurdity: a person can be sentenced to a mandatory 9 months in jail for growing a marijuana plant, smoking a joint with friends, all while sitting in the comfort of his or her own rental apartment. My first reaction was one of disbelief. I shared this tweet with my criminal procedure class with interesting results.

Some of the students, not unlike my reaction, gasped and shook their heads. But there was one student who applauded the action. This student, as an owner of rental property, was glad to hear that property rights will be protected. Instead of that much bandied about acronym (lawyers love acronyms!), NIMBY, it was NITPILO – Not In The Property I Lease Out. The student had a good point.

So I decided to investigate this new amendment further. Upon reading the actual amendment, the following became clear:

1. This is a mandatory minimum sentence or MMS
2. Applies to less than 201 marijuana plants
3.  Must be convicted of production for the purpose of trafficking
4. One of a list of factors must apply
5. One of those factors is the accused “used real property that belongs to a third party”

What does this add up to? Well, an argument. My spouse, who is also a criminal lawyer, and I had a boisterous argument over the application of this new amendment. The issue was; who can be captured by this amendment?

The argument revolved around the offence of production for the purpose and the meaning of using property “belonging to” another. So, we did what all good lawyers do when we disagree, we ran to our respective computers and did some legal research.

What did we find? I found more questions than answers. Although an accused will be acquitted of possession for the purpose of trafficking if the marijuana is for personal use, not necessarily so for production for the purpose. Under the Controlled Drugs and Substances Act (CDSA is the acronym), production includes “cultivating, propagating, and harvesting.”

So yes, you a grow a plant or two and harvest it to make a joint, you are producing contrary to the Act. But it must be for the purpose of trafficking. Okay, so if you produce for yourself only, you are not within this new amendment. But, if you grow the plant, harvest the plant, roll a joint and give the joint to a friend– that is trafficking the produced drug.

But how about that last factor – in rental property? It says real property belonging to a third party. My husband and I really argued about this. Many drug forfeiture hearings revolve around ownership of the property. The ownership is sometimes obscured through numbered companies, which are actually owned by criminal organizations. His argument was; this would only apply to those nefarious cases. I disagreed; this factor refers to rental property. It is protecting my student and many others who rent out property.

Who is right? Just read the House of Commons publication explaining the new legislation. The factors are for “health and safety.” Remember Safe Communities Act. The aggravating factor is committing the offence in a rental property.

Bottom line? The math does add up if there is a situation of a grow-op in a rented home. Bad things happen to homes used as grow-ops and adding a further disincentive to do this can be a good thing. Whether or not a MMS (acronym for mandatory minimum sentence) is appropriate or constitutional is for another blog.

Where the math does not add up however, is in the situation of the lost soul who grows a couple of plants, makes some joints from them and invites friends over for a smoke in his rented apartment. Is that justice? You do the math.

My question to the lawyers out there: in light of yesterday’s SCC decision in Cote, in which the Court showed strong support for Charter values and rights in their 24(2) analysis, would this legislation pass Charter scrutiny under a s.1 reasonable limitation argument?