Is Violence The Word?

Violence is ubiquitous in our society. Although Calgary’s murder rate is shockingly low for this year, some 300 km away in Edmonton, it is shockingly high. Why? Everyone who watches sports or partakes in culture would agree there are big differences between these two Alberta-bound cities. Different psyche means different societal responses to violence. Or maybe Edmonton is more of a reflection of our global thirst for violence?

Enter Steven Pinker and the myth of violence. According to Pinker, the idea we are a more violent society is just dead wrong. Historically and statistically, in the Middle Ages, we experienced more deaths by warfare, more deaths by punishment, more deaths for entertainment, and a much higher murder rate than we do now. Why so wrong? Better press coverage for one. Today, we hear more about violence and murder. Cognitive illusion is another reason. Humans tend to better remember the gory and the violent.

What implications are there for criminal law? Statistics can be meaningful in a sentencing hearing. Often, the Crown, and even the Judge, will refer to the increase of a specific crime in a particular area as an aggravating factor on sentence. This statistic can translate into a greater need for general deterrence, and typically, a greater sentence for the accused. The myth of violence may blunt this kind of argument.

Better yet, I urge you to go full-circle on this connection between ideas and law and read Robert Cover’s journal article entitled, Violence and The Word. Cover, an American legal scholar, wrote unbelievably creative and compelling articles on jurisprudence and constitutional law. Violence and The Word, which opens with the sentence, “Legal interpretation takes place in a field of pain and death,” dissects the relationship between a criminal judge’s imposition of sentence, the accused who receives it, and the legal structures, which make it possible.

In a society where the reality of violence and the idea of violence are so disparate, Cover and Pink may help us understand why.

Want to read more? Click here: Robert Cover and Steven Pinker

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?