Holiday Gifts For The Lawyer On Your List

I am feeling in the holiday mood, despite the Black Friday antics in the USA. If you have a lawyer on your list or just someone special, here are a few suggestions:

1. Donate

Donations are my favourite way of saying "I love you!" and there are many places that need our financial support and help. You can donate as a "gift" to the organization or in honour of a loved one or even in memory of those whom you will miss over the holidays.

As a lawyer in Alberta, I like to donate to the Lawyers Assist program run by the Law Society of Alberta. This organization assists lawyers in need of help for a myriad of reasons such as substance abuse, depression, and the like. Another organization I support is the Legal Archives Society of Alberta. History is so important and is an ideal worth supporting. 

As a criminal lawyer, I support the John Howard Society. This worthy institution provides support for offenders and their families. For a female touch, the Elizabeth Fry Society also helps female offenders in need of guidance. The rehabilitative aspects of these organizations benefits all of society. 

As a lawyer who teaches human rights, I like to donate to Simon Weisenthal Centre, which promotes human rights and holocaust education. The Canadian Civil Liberties Association works hard at preserving and protecting our human rights and civil liberties. The number of cases in which they receive intervenor's status is astounding. A donation there is a big "thank you" to those who volunteer their time to ensure our freedoms are protected.

Personally, I also support the World Wildlife Fund and the Canadian Cancer Society. Buying one of those breast cancer wristbands, I spoke of in my "Keep A Breast" campaign blog would be another great gift. Finally, if you are a member of an ethnic group, as I am, donate to a worthy cause in your specific community. 

2. Gifts Which Say "I Believe In This Worthy Cause"

There are a number of gifts you can give a lawyer or really anyone who cares about an issue. Those breast cancer wristbands for instance. Another idea is a "banned books" bracelet from the American Library Association website. The bracelet, which also comes in a childrens' book version, is made of small stylized front covers of various banned books. My favourite banned book included in the item is "To Kill A Mockingbird," which I recently saw as a play and blogged about here.

If you want to get more radical, buy a T-shirt from Rosa Loves, a website dedicated to what we are dedicated to: they provide T-shirt messages with meaning and as a vehicle for raising awareness and funds. Once the goal has been met, the uniquely designed shirt is no longer available to give way for the next project. An example, is this cool T to raise money for Armonia, a Mexican organization which helps the rural community.

3. Legal Stuff

There is a lot of legal "stuff" out there. If you are channeling former Secretary of State Madeleine Albright, then you will love the "great seal" pin from the Supreme Court Historical Society shop. Or if your taste runs more Canadian, try the cuff links from the Parliament of Canada gift shop. I prefer something to jazz up my dashboard and the bobble-head President Lincoln fits the bill from the Abraham Lincoln Presidential Library and Museum. Although, those Lincoln Logs bring back memories. As a fun piece of trivia, Lincoln Logs were designed by John Lloyd Wright, the son of the famous architect.

4. Retro Gifts

Any lawyer would like a gift that harkens to the nostalgic past. The Star Wars: The Blueprints book would make a nice gift in that memory lane category. This spoof of my son's first baby book Good Night iPad would also be a nifty choice but do not buy Robert Munsch's classic Love You Forever, unless you want a good cry. The best retro gift has to be The Beatles Yellow Submarine action figures. Admittedly, I have a few in my basement, including the Blue Meanie.

5. What I Would Like

A T-shirt from the Imaginary Foundation. I love this website, with its mixture of science, art, design, and everything cool, the Imaginary Foundation makes me feel creative. Just check out these T-shirts and you can see why. I just bought my son this Kaku shirt. I also want the National Film Board's production of Blackfly, based on a song by Wade Hemsworth. You can watch it here. Be prepared, it's addictive. I would also like the book recently published on JRR Tolkein's original illustrations. Finally, I would like everyone to watch or re-watch Lord Bertrand Russell's message of tolerance so we can truly have peace on earth this holiday season.

Proofiness: A Companion To Yesterday's Blog

Proofiness - yes, Stephen Colbert suggested the word when he coined the term "truthiness" meaning the intuition we have when we "just know" something is true as opposed to an objectively proven fact. See my earlier blog on Legal Intuition for more on intuition and fact-finding. But it is Charles Seife, a mathematician and journalist, who invented it. Yesterday, I issued a caution on the use of statistics as a basis for legislation, specifically, the new Alberta and, not so new, British Columbia impaired driving laws. I even invoked Mark Twain to provide the lesson: "There are three kinds of lies: lies, damned lies, and statistics." But today, the term "proofiness" will do.

In Seife's book Proofiness: The Dark Arts of Mathematical Deception, Seife makes a case for the "power in numbers" and the resultant misuse of such power by politicians, scientists, pollsters, advertisers, and the like. Numbers can be manipulated to support or dismiss claims. Numbers, themselves objective quantifiers, can be presented as "proof" to support subjective facts and transform the position into irrefutable truths. Anyone who works in an area where numbers matter must read this informative and disturbing book.

Another similar book is Trick or Treatment? Alternative Medicine On Trial by scientist Simon Singh and phyisician Dr. Edzard Ernst on the fallacy of many alternative remedies. The book resulted in a libel lawsuit against Simon Singh, who recently won on appeal. Singh is also an excellent science writer. I have read and highly recommend; The Big Bang,The Code Book, and Fermat's Last Theorem. But it is his Trick book which contributes to our statistical story. Singh discusses the "trickiness" of some alternative medical practitioners in their use of statistical evidence to show their treatments work. Like Seife, Singh cautions on the inferences to be drawn from statistics without full knowledge of the connections between the statistic and the inference. He gives a priceless example in his book on statistics of climate change and the number of pirates. Statistics can show that global warming diminishes with the number of pirates. Ergo, we need more pirates! Of course, the reasoning is wrong but yet the numbers don't lie. 

Finally, I leave you with a recent article I read from Scientific American on the population "clock" wherein the census takers warn the world of the next population milestone. Indeed, Kofi Annan in 1999 pinpointed the boy who was the "sixth billionth" person on Earth. This was proofiness at its best or should we say worst as there is no way to pinpoint with accuracy actual population. It is all estimate and guess. But it does provide a great marketing moment as the press and media disseminate the "truth." 

We have come, of course, full circle. Numbers don't lie but people do. So the next time you are faced with statistics and polls, just pull a Colbert and demand to see the proof.

As an aside, the Language Log has a great blog on a linguistic analysis of the word "proofiness" and the use of "iness" as a "Colbert suffix." Enjoy!

Caution - Objects May Appear Closer In The Rear View Mirror: The Optics Of Tougher Impaired Driving Laws

In October, I discussed the "let's get tough" on impaired driving legislation proposed by new Premier Alison Redford in two blogs; A Lesson On How To Get Tough With Impaired Driving and Impaired Driving: A Little Diversion. With the dual announcement this week from Alberta, where new legislation mirroring B.C.'s efforts in the area has been tabled in the Legislature, and from British Columbia, where impaired driving fatalities have decreased by 40% since the new legislation has been in force, a review is in order. I will discuss some of the legal difficulties with the legislation and some of the social difficulties of connecting the effects of the new legislation with an absolute decrease in impaired drivers.

Many of the legal criticisms focus on the lack of due process afforded individuals when they are stopped by police enforcing the new law. Sanctions may be imposed without recourse to the criminal justice system and the determination of penalty is not administered by a judicial authority but by the police. By giving the police the decision making power usually confined to judges, the procedure not only circumvents the justice system but circumvents the legal rights protections we all enjoy under the Charter, particularly the s. 11(d) right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal." As discussed in a previous blog, There Is No Road To Redemption, this type of crime prevention adheres more closely to the arcane "crime-control model" of Herbert Packer.

Another area of concern involves legal issues with the breathalyzer devices themselves and the inaccuracies connected to the machines. Thus, the lack of due process is compounded by the unreliability of the basis for the out-of-court sanction.

Still other legal critics accuse the police in British Columbia of selective enforcement: police are not enforcing the impaired driving sections found in the Criminal Code, opting instead to enforce the provincial legislation only. The result of such policy not only diverts from the justice system those offenders who would not normally be before the Court, as their blood alcohol concentration or BAC is below the legal limit, but also diverts those offenders who have a BAC above the legal limit and should face a criminal charge. In those circumstances, the criminal law, as properly wielded by the Federal Government under the Constitution Act and under the Federally enacted Criminal Code, is not being enforced.

On the other hand, there are benefits to the accused by this diversion from the criminal justice system. The offender is not subject to the risk of a criminal record if convicted. A criminal record not only carries substantial societal stigma but can result in a loss of employment and difficulties travelling across borders. 

Effectively then, the new legislation "decriminalizes" impaired driving without federal government input and without public input. 

How did this happen? The persuasive, yet misleading, use of statistical evidence may provide the answer as to why this legislation has been so readily accepted by the public and by the government. Returning to the B.C. experience, that law was first introduced in April 2010 as, according to the government, tougher measures were needed to combat the increase in impaired driving cases. This reasoning was, in fact, at odds with Statistics Canada's July 2011 report, which found an overall decrease of the rate of impaired driving throughout Canada with an 8% decrease in the rate of impaired driving in B.C. from 2009 to 2010. In Alberta the 2009 to 2010 rate decrease was 14%.

Despite these seemingly contradictory statistics, the recent announcement from B.C. suggests that alcohol related fatalities have decreased by 40%. In absolute terms, the statistic is astounding and very persuasive. In reality, however, this kind of statistical "evidence" of success must be approached with caution. As Mark Twain purportedly stated "There are three ways not to tell the truth: lies, damned lies, and statistics."

Although such a blanket dismissal of statistics is not warranted, it does give one pause for thought: statistics, as numbers, do not lie, but it is the interpretation of statistics, as offering support or dismissal of a claim or cause, which can be manipulated. Certainly, in the criminal justice arena, such statistical evidence is admitted with caution, particularly in the area of DNA evidence. As stated by Justice Finlayson in the 1998 Ontario Court of Appeal case in Terceira:

At the conclusion of the evidence, the trial judge in his instruction should advise the jury in the normal way as to the limits of the expert evidence and the use to which it can be put. Additionally, in the case of DNA evidence, he or she would be well advised to instruct the jury not to be overwhelmed by the aura of scientific infallibility associated with scientific evidence. The trial judge should tell them to use their common sense in their assessment of the all of the evidence on the DNA issue and determine if it is reliable and valid as a piece of circumstantial evidence.

Ultimately, statistics cannot provide a definite or absolute connection between the new legislation and the decrease in alcohol-related fatalities. The decrease can be explained in many ways such as educational programs deterring people from drinking, increased law enforcement by police, a general declining trend as observed by Statistics Canada, or increased awareness/deterrence through those very government media announcements we have heard touting the new law and its benefits. A quick internet search reveals a long list of B.C. town news sites, big or small, and even a few MLA websites as well, reporting on the B.C. government's recent statistical news.

In the end, we need to be aware that what we see and hear may not be what we are actually getting. In this, as with so much public policy, perhaps only time will tell. 

The Occupy Movement & The Charter of Rights And Freedoms

Read all the postings on the  Occupy Movement and the Charter:  Freedom of Expression and Occupying Public Space Part One  & Part Two: Occupying Public Space & Creating A Positive Out of A Negative & The Occupy Movement and The Government's Right to Allocate Public Space

 

The Occupy Movement and The Government's Right to Allocate Public Space

Justice can move at a dizzying pace: since Friday, the Occupy movements in Victoria, Vancouver, and Toronto have been ordered by the Courts to obey municipal law and take down their tents. The issue, at least according to B.C. Supreme Court Justice Schultes who granted the Victoria injunction, is the government's right to allocate public space. 

In his oral reasons for granting the extraordinary injunctive remedy, Schultes concluded the City of Victoria, by requesting the order, was "within its rights to mange public spaces in the public interest" and is "free to come to the conclusion that any encampment, wherever and however situated in the square, is not in keeping with the best public use of that space." 

In a previous post from November 4 on Creating A Positive Out Of A Negative, I suggested that the BC Supreme Court in Victoria (City) v. Adams created a Charter right to shelter. Adams involved very specific evidence of a lack of shelter beds for the homeless, causing the homeless to erect a Tent City in a public park. In that case, the Court found an infringement of s.7 right to life, liberty and security of the person as a result of the lack of shelter. In the Court's view, the case was not about property rights. Nor was it about the right to camp in public spaces. It was about human dignity and self-fulfillment of the homeless, who had no alternative but to sleep in temporary shelters in a City park.

How does the Occupy movement situation differ? Although homelessness and poverty does appear to be a theme in the Occupy movement, it is certainly not the reason why all of the members are living in tents in a public space. Certainly the movement would be unable to produce the same kind of evidence as in Adams, which was persuasive in its breadth and depth. Does that mean the case is all about property rights, which is not Charter protected?

Schultes's reasons may provide an answer. By framing the issue as one of public allocation, Schultes was no doubt referring to the Supreme Court of Canada Committee for the Commonwealth of Canada case decided in 1991. There, the members of the Committee were handing out their propaganda at an airport contrary to airport regulations. The Committee members argued their s.2(b) freedom of expression rights were infringed. Although the Court agreed the freedom was infringed, they were split on various issues of the case. One of the issues discussed was the special use, if any, of governmental property as public space.

According to the Court, public space should not be treated like private property as the government held the property for the benefit of the public. Indeed, in Adams, Madam Justice Ross found the public included the homeless. However, the SCC cautioned on a formulistic view of a "public forum" analysis and preferred a contextual approach involving the balancing of the interests of the individual and the interests of the government. Thus, in Chief Justice Lamer's (as he then was) view when expression is restricted in a public place, the legal analysis must examine the

interest of the individual wishing to express himself in a place suitable for such expression and that of the government in effective operation of the place owned by it".

As it is public lands, Lamer, C.J. found it is the "citizens above all who have an interest in seeing that the properties are administered and operated in a manner consistent with their intended purpose."

What does this mean for the Occupy movement? This means as stated by Justice Brown, in granting injunctive relief to the City of Toronto, that "protestors have ample means left to express their message, including continued use of the park (but no structures or "midnight hours"), and other Torontonians can resume their use of the park" too. Therefore, the right to freely express oneself does not include exclusive use of the space chosen to do it. In other words, there is room in the sandbox for everyone.

In the end, isn't that a good thing? The more the merrier and the more who will hear the message to be conveyed.