The Infinite Lists of The Law

We are a culture of lists. We list both the animate and the inanimate as we create lists of items, dates, times, and even dreams. categorizing and prioritizing is a must in our busy world where lists order to the chaos surrounding us. Even when faced with a new year, we make a list of resolutions, which serve to galvanize our dreams into reality. professionally, we would be labeled unorganized and inefficient if we did not abide by our daily to do lists. 

This penchant for cataloguing our desires and possessions is the subject of Umberto Eco's beautifully illustrated book The Infinity of Lists. Eco's premise is basic and primal: we live to make lists for an infinite number of reasons. Some lists are self-referential and enclosed such as a list of Canadian capital cities, while other lists find meaning through personal reference points found only outside of the list such as the list of holocaust victims at Yad Vashem. Still others are infinite in scope and contain an unspoken etcetera such as visualized in Pannini'spicture galleries.

Eco's theme can be applied to any subject area; not only art catalogues and literary warrior lists, but also in the legal arena. Every judgment contains a list of decisions relied upon, every civil discovery involves a list of pre-determined questions, every divorce requires a list of financial documents to be exchanged. There are court lists, which in turn may require jury lists, and then ultimately, witness lists and exhibit lists. 

Laws themselves are really just a list of dos and don'ts. Indeed our Criminal Code is merely a list of sections, which currently happen to number a solid 849. However, that number too is misleading and not as predictable as first imagined. Like accordion folds, many of the sections contain further divisions and are actually a dizzying array of laws.

For example, the search warrant section 487, expands incrementally from section 487.01 to section 487.017 and then further divides from section 487.02 to section 487.092, where it segues into section 487.1 to section 487.3, until it finally rests at section 488. Thus, s.487 to s.488 becomes a maze of laws as some 33 sections span the divide between the two. Found in this span are the DNA warrant sections, showing that what may seem an absurd hodgepodge list is actually crucial and important powers and procedures in our criminal law.

Lists are important and certainly in the legal world, help us make sense of what can be a confusing process. The power of list making should, therefore, not be underestimated, and neither should we dismiss the infinite possibilities of a list.

Freedom of Expression: Poems, Posters, And Billboards As A Form of Complaint

In previous postings, I discussed the Occupy movement's "Tent Cities" as a form of political protest with expressive content and therefore protected expression under s.2 of the Charter. Once Charter protected, the analysis then shifts to the s.1 limitation analysis to determine whether or not a restriction of that expression is justified in a free and democratic society.

Political protest, as expression, is readily accepted as worthy of protection. The difficulty, however, is when we look to more obscure kinds of expressive protest, such as a personal complaint. This was the case in a recent decision by the Ontario Court of Appeal in R. v. Jeffers.

Mr. Jeffers was convicted of mischief and counselling murder as a result of distributing and plastering posters across Toronto, which referred to his dire financial situation caused by the bank's re-possession of his home. In one poster, the basis for his convictions, Jeffers reproduced a photograph of a city councillor with the councillor's name and the word "murder" as seen below:

Murder Help

Councillor Thompson Jeffers

Help Black 647-xxx-4476
We Black

Mr. Jeffers, who was not originally from Canada, had a grade 5 education. According to Mr. Jeffers, the posters were a cry for help and were not intended to harm the city councillor, who had helped Mr. Jeffers in the past. The councillor did not testify at trial.

In quashing the convictions and substituting acquittals, the Court of Appeal, applying the legal principles required to prove the offences, referred to postering as "an effective and inexpensive means of communicative expression" and therefore "criminalizing this kind of conduct is not in society's best interest." The posters, albeit crude and childish, were a public airing of an individual's frustration with a plea for help from the City and were, in light of all of the circumstances, not criminal.

The Jeffers case made reference to another earlier Ontario Court of Appeal case, R. v. Batista, wherein the accused wrote poems and posted the verses throughout a Mississauga neighbourhood. The poems were about the accused's city councillor, and as with Jeffers's posters, not the most erudite literature, but were found not criminal in nature. A sample of the impugned section of the poem is reproduced below:

Now this bad driver that

WE only know as Pat Saito

who run away from thataccident

site is going to think twice

before backing up and looking at

pot holes instead of doing

Her job

We are going to dig a pot hole

about six feet long and 3 feet wide

and five feet deep to hide

her body and God will take care

of Her Soul, but We can not

forgive her for doing nothing

She can keep running

at a good pace but

We will make sure

that She is in HEAVEN

and out of the Race.

In this case, the Court considered the elements of the offence of threaten death in the context of freedom of expression under s. 2 (b) of the Charter and the vital role political satire, albeit "amateurish, foolish, and offensive," plays in a democracy. Indeed, the Court found:

The poem’s purpose of denigrating the elected councillor’s level of job commitment or competence provides important context for a consideration of whether the impugned stanzas of the poem constitute a threat. All citizens are entitled to freedom of expression in the political forum, including those whose language skills are limited. While it was unnecessary for the trial judge to engage in the in-depth s. 2(b) analysis urged upon him by trial counsel, it was necessary to consider the poem as political commentary before determining whether it constituted a threat at law.

Of course, freedom of expression is no stranger to signage as a form of complaint and grievance. In the 2002 Supreme Court of Canada Guignard case, a billboard erected on Guignard's building showing dissatisfaction with an insurance company, was protected expression under the Charter and the municipal by-law restricting that right was found to be unconstitutional.

The sign, as a form of commercial expression, was also a form of "counter-advertising" wherein a consumer exercised his or her right to show dissatisfaction with a product with the additional benefit of forewarning other consumers. This expression of complaint or dissatisfaction, not unlike the complaints found in Jeffers and Batista, "is a form of expression of opinion that has an important effect on the social and economic life of a society."

The Jeffers and Batista cases are yet another example of the Courts using Charter values to interpret their findings. Thus, the Charter colours decisions with broad strokes without the rigidity of a direct Charter analysis. This subtle use of the Charter is the future of constitutional law as Charter values incrementally change our laws to make them more robust and relevant to society.

Clash Of The Writers: The Bad Book Review Lawsuit

Can one sue over a bad book review? This is the question being asked by Harvard historian, and popular writer, Niall Ferguson as he ponders launching a lawsuit against Pankaj Mishra, who reviewed his most recent book in the London Review of Books. The disagreement is an ugly affair, which, unfortunately, may just  boil down to a political disagreement with Mishra viewing Ferguson`s book, Civilization: The West and the Rest as perpetuating "white people's histories". Even the clarification penned by Mishra was not enough to efface the allegation of libel and defamation. Mishra, however, is no stranger to the bad book review genre as he clashed earlier this year with Patrick French, again on a post-imperialist basis.

Of course, such literary squabbles are not uncommon in the literary world. Paul Theroux and V.S. Naipaul only recently purged their dispute, while William Faulkner and Ernest Hemingway never did become chums. But at least they only used profanity to describe one another as opposed to Norman Mailer and Gore Vidal, who famously used fists instead of the pen. Watch this great clip of the two on the Dick Cavett show. Often literary warriors do prefer the pen and slug it out in the media with duelling book reviews as in the case of Salman Rushdie and John Updike.

The problem is, however, when literary spats move into the bete noir and the threatened lawsuit becomes a criminal trial. Earlier this year, Joseph Weiler, a law professor at New York University, was tried in a French court for criminal defamation relating to an unfavourable review of a book on the International Criminal Court written by Karin Calvo-Goller. The Court did not miss the irony of the situation, as it declined jurisdiction on the matter and ordered Calvo-Goller to pay costs for the lawsuit, which was found to be an abuse of process.

The above situations may not help us determine when a book review turns rogue and attracts legal attention but it is a healthy reminder that writers too can be stranger than fiction.

In 2012, Let's Innovate!

Typically, on January 1 of each new year, we consider what the new year will bring us. Often, we have help with our predictions in the form of a list of trends for the new year. Tech trends tend to be the most popular to feed our compulsive drive toward possessing the best and brightest tech toy in our social circle. There are other lifestyle trends: colour, clothing, hair, and even food. Sometimes, these trends are pre-determined well in advance with fashion houses now creating for 2013 and beyond.

There are, of course, legal trends such as e-discovery, social networking in the workplace and courts, virtual law offices in the clouds, and the ubiquitous wikis. Ironically, there are re-occurring trends such as legal outsourcing seems to have been on the list for years.

Trends, however, do not necessarily translate into innovation. Trending is, well, trendy; as in what is popular, not always what is different or unique. Innovation, on the other hand, speaks to new ideas, new pathways, and new connections.

We can actually learn from the past in order to innovate in the future. John Cage's experimental music and his prepared instruments have been around since the '50s but is still a good lesson in innovation. To think outside of the box and embrace an expanded definition of music, or anything really, can lead to an idea, which is new, different, and exciting.

Legal inspiration can be found in what is already available too. Just read a case decision for a reason completely unconnected to a research query to find a new idea or a new connection. This new idea can then be used in a slightly different scenario and you have instant innovation. Sometimes just connecting hitherto unconnected themes can provide fertile ground for an innovative argument.

The Charter is another area rife with new possibilities and fresh arguments. Indeed, it is these new arguments which make the Charter so robust and relevant. The Charter, as a reflective document, mirrors our societal values and so the legal profession too must be intuitively aware of the changes to those values in order to fashion cutting-edge arguments. Thus, from trends, we innovate.

So, in 2012, let us innovate in all we do and create a 2012 trend, not just be part of one. Happy New Year!