Law, Literature, and "Inherit The Wind"

When I lecture, I like to take a Brain Break or a moment to reflect on a particular issue being discussed. Usually, this takes the form of big idea questions, or a fact situation, or even a decision-making exercise, which the class then tackles in smaller discussion groups. So let's take a Brain Break, on this October Wednesday, through a segue from human rights to literature, and discuss Inherit The Wind by Jerome Lawrence and Robert E. Lee (no, not the Civil War Lee who died in 1870 on this day - is this irony?).

Inherit The Wind is a dramatisation of the infamous Scopes "Monkey Trial" where the theory of evolution expounded by Darwin was "on trial" as a result of a high school biology teacher's decision to teach the theory rather than the accepted idea of biblical creationism. Clarence Darrow, one of the great trial lawyers of the era, represented the teacher and turned the trial into a reflective examination of society's tolerance for differing and controversial view-points.

In the movie version, Clarence Darrow is brilliantly played by Spencer Tracy with Frederick March as his nemesis prosecutor Matthew Brady. Completing the triumvirate, is Harry Morgan (aka Col. Sherman T. Potter - another civil war reference?) as the presiding Judge. The play is indeed, even on a surface reading, an engaging repartee between two conflicting ideals: one of freedom of expression thought, and belief and the other, freedom of religion and sacred thought. Aha, we are back to expression! A fundamental freedom at the core of our most deeply held beliefs and so many times, opposing other fundamental Charter values, such as religion and equality.

On a deeper reading, Inherit The Wind is a treasure. Written by the authors during the period of oppressive McCarthyism, the book does not just harken back to a tumoltous time of civil rights, but brings us back to the present as our Supreme Court of Canada hears argument on the Whatcott case.

Follow the SCC on Twitter as the arguments come down at #SCC or #Whatcott to formulate your own connections between the past and present.

Is "Innocent Nudity" Expression?

When is a nude a nude and when is being nude, contrary to the Criminal Code? When you walk through a local park sans clothing or when you go through a Tim Horton's drive-through with nothing but your charms to recommend you.

Today, in my human rights class, we talked about just that. Is nudity expression? And if so, does s. 174 of the Criminal Code, which prohibits public nudity, violate s.2(b) of the Charter? 

It appears Ontarians, Mr. Coldin and Mr. Cropper, would answer yes to both. Both men are charged with public nudity under s.174  of the Criminal Code and their counsel have argued a Charter violation. According to these avowed naturists, their nudity is an expression of a oneness with nature, in other words going au natural for nature. This "innocent nudity," they argue has expressive content and should not attract criminal penalties. 

First, the class tackled the issue of expression: is nudity expression? Well, it turns out the answer is not so clear. What is the expressive content of nudity? Is wearing nothing able to express anything? Let's just ask the Emperor who thought he wore new clothes. Was he "expressing" something when he waltzed down main street in his natural born state? Perhaps. And Coldin and Cropper, are they saying something through their nudity? I say yes. An expression of "getting back to nature" and an expression of "let's get back to the basics in this overly material world." Could this be a call to arms (uncovered of course) for an Occupy Nature movement? 

Now we have determined expression. How about the restriction? See anything wrong with the Criminal Code section? The class did.

s.174(1) Every one who, without lawful excuse,

(a) is nude in a public place, or

(b) is nude and exposed to public view while on private property, whether or not the property is his own,

is guilty of an offence punishable on summary conviction.

As Arnold Horshack would say, hand raised, "Ooh-ooh-ooooh."  How about this. It harkens back to the basic principles of criminal law, which require a minimum mens rea requirement.This offence may not be a true crime and attract a subjective liability requirement but does this section even permit an objective liability standard? Section reads more like an absolute liability offence: you are nude, you are guilty.

Aha, you say. How about that lawful excuse? What kind of "lawful" excuse could there be for being nude? Okay, you sleep in the nude, fire alarm goes off in the middle of the night and you jump out of bed and run outside stark naked. So the lawful excuse seems to be: I did not intend to be publically nude. A lack of mens rea, which is a required element of an offence, as a lawful excuse?

I could go on, but I will stop here.

What kind of offence is this anyway? Is it Charter bad or Charter good? What do you think?

Update on Wednesday, October 12, 2011 at 6:27PM by Lisa A. Silver

A student in my human rights class reminded me of the 1991 Guelph, Ontario woman who took her shirt off on a warm day. She was charged with an idecent act contrary to s.173 of the Criminal Code. CBC recently did a follow-up story of the case. The Ontario Court of Appeal acquitted Gwen Jacob on the basis that her actions did not amount to an indecent act, which required a sexual context. The Charter was not invoked. This decision did open the way for breast feeding in public, however it did not start a female shirtless movement, either on a hot day or otherwise. You will have to go to Europe for that.