Crime And Punishment: “Changing Lives Through Literature”

Judge Willmore of the 1^st District Court in Logan, Utah may just have the right idea: impose a meaningful sentence on offenders, which will positively impact their lives and give them an incentive to make the right choices in the future. Judge Willmore does this through rehabilitation through education, when he requires offenders to read and, on occasion write a report on, Victor Hugo’s Les Misérables as part of their sentences.

Les Misérables, Hugo’s tour de force exposes the societal ills of 19^th century France through an intertwining story of lost youth and redemption. It is a story of hope for those who have done wrong in the past and an example of how acts of kindness can turn evil into good. An excellent read for those in trouble and who want to turn their lives around.

Such alternative sentencing options are unusual in a system that prefers deterrence to rehabilitation, yet the idea of using literature to rehabilitate is not a “novel” idea. In Massachusetts, for example, a Judge has the ability to sentence an offender to a special program called “Changing Lives Through Literature.” To be eligible, the offender must consent and must not be a sex offender or convicted of murder. Once ordered to this “treatment by books,” the offender must attend a three-month course, taught by a College level professor, wherein they read up to 6 novels. After completion of the course, the offender discusses the novels with the Judge, the Professor, and the other offenders who are participants. By all accounts, the program has been successful and has peaked the interest of other Districts across the United States. Although, I have found reference to the program starting in Canada, I have not been able to confirm this.

The idea of rehabilitative self-improvement has been used beyond the courtroom as well. The “Books Through Bars” program in California sends “quality reading material to prisoners and encourage creative dialogue on the criminal justice system, thereby educating those living inside and outside of prison walls.” The program itself has expanded to provide publication opportunities to prisoners, prison libraries, and other educative forums.

The Canadian justice system would benefit from such forays into literature as rehabilitation. Certainly the sentencing regime found in the Youth Criminal Justice Act could provide a platform for such unique sentencing programs. Clearly, education goes hand in hand with self-worth, which many offenders are lacking. The therapeutic effects of a “good read” should not be underestimated and need to be explored in an era where traditional sentencing practices seem an incongruous fit with today’s society. Perhaps it will be only a matter of time and, of course funding, before we see the positive effects of “doing time” through reading but in the meantime, read Les Misérables for yourself and enjoy the educative effects of good literature.

Reading The Riot Act

Riots or violent disturbances of the peace are part of the human psyche. As early as 44 B.C., when the Roman mobs attacked the houses of Brutus and Cassius in an angry response to the untimely death of Julius Caesar on the Ides of March, the world has since experienced riots in every era. Riots occur for a multitude of reasons: from student protest as in the 1229 University of Paris students’ strike to revolution as in the Boston Tea Party of 1773 and from the various race riots in the United States throughout the 1900’s to the obscure reason of advant-garde music, when in 1913 the audience in the Paris Théâtre des Champs-Élysées listening to the debut of Stravinsky’s Rite of Spring ballet broke out in a violent booing frenzy. There have been riots over various alcoholic beverages as in the London Gin Riots of 1743 or the Beer Riots in Bavaria in 1844 or then only ten years later, the Portland Rum Riot. Sadly, I missed the Champagne Riot in 1911 France. However, increasingly, riots are not about protest but about a lack of sportsmanship or too much sportsmanship as in the case of the recent hockey related riots in Canada.

The Stanley Cup Riots, and I use the plural as there has been more than one (two in Vancouver, five in Montreal, one in Edmonton during playoffs), have been particularly egregious, costing the municipalities millions of dollars in damaged property and even millions more in prosecuting and punishing the participants. The Nika Riot of AD 532 might have been the first sports related riot, happening in the Hippodrome at Constantinople, then the centre of the remaining Roman Empire in the East. The two factions, Blue and Green, were supporting their chosen chariot race teams when both sides demanded the city release Blue and Green prisoners, who had been arrested, earlier, for disturbing the peace. In a moment, this sporting event became political and over the next few days a not unfamiliar scene played out as the Emperor Justinian first apologized and, when the mob was still not pacified, then slaughtered thirty thousand Blue and Greens in the Hippodrome. Ironically, it was Justinian who codified all Imperial laws into the Codex. See my previous posting on the codification of our criminal laws into the Criminal Code.

Although we no longer “read the riot act,” as they no doubt did in 18^th Century England when the Riot Act was first enacted, our criminal law does prohibit “unlawful assemblies and riots” under the Criminal Code. The 1715 Riot Act gave a Justice of the Peace or another person so authorized to disperse “groups of twelve people or more being unlawfully, riotously, and tumultuously assembled together, to the disturbance of the publick peace” upon proclaiming:

Our sovereign Lord the King chargeth and commandeth all persons, being assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the act made in the first year of King George, for preventing tumults and riotous assemblies. God save the King.

If the crowd did not disperse within an hour of this proclamation, the authorities had the right to “seize and apprehend” the rabble-rousers who would be subject to the death penalty.

Although the Riot Act was finally repealed in 1973, the Canadian offences of unlawful assembly and riot, under sections 63 and 64 of the Criminal Code respectively, are a distant reminder of the original crime. Instead of twelve people “unlawfully, riotously, and tumultuously” assembled, the Canadian counterpart, unlawful assembly under s. 63, requires three or more persons “with intent to carry out any common purpose” who:

cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they

(a) will disturb the peace tumultuously; or

(b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.

Similarly, section 64, defines the offence of riot as an unlawful assembly, presumably as per s.63, “that has begun to disturb the peace tumultuously.” Therefore, an unlawful assembly is about to become a riot, although not quite there, while a riot is exactly that: a full-blown tumultuous affair.

The defining term for these offences, in both the Criminal Code offence and the 1715 original crime, is the word “tumultuously.” To understand the meaning of this word, which is not defined in the Criminal Code, case law is needed. In the Berntt case, arising from the first Vancouver Stanley Cup Riot in 1994, at issue was the clarity of the meaning of the word “tumultuously” as found in s.64.

Defence argued the term was vague and therefore did not provide a clear understanding of the essential requirements of the crime. Without such clarity, defence argued, the accused’s ability to make full answer and defence was compromised. To try an individual on the basis of a vague law and, therefore, to potentially deprive the individual of his or her liberty if convicted would be contrary to the principles of fundamental justice under s.7 of the Charter.

The British Columbia Court of Appeal, in deciding the issue, referred to the 1992 Supreme Court of Canada decision in R. v. Nova Scotia Pharmaceutical Society and Justice Gonthier’s comments on the importance of limits, provided by clear language, which delineate our laws and permit legal debate. However, language provides boundaries only and are mere guidelines as stated by Justice Gonthier in the following passage:

Semantic arguments, based on a perception of language as an unequivocal medium, are unrealistic.  Language is not the exact tool some may think it is.  It cannot be argued that an enactment can and must provide enough guidance to predict the legal consequences of any given course of conduct in advance.  All it can do is enunciate some boundaries, which create an area of risk.  But it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made.  Guidance, not direction, of conduct is a more realistic objective. 

With guidelines comes context and in the end, the court found the word “tumultuously” must be read in conjunction with the other words used in the offence such as “riot” and “unlawful assembly,” which connotes a violent disturbance as opposed to an uproarious, perhaps even jubilant, crowd. History also imbued the term with particular meaning as the crimes, through their very definition, related back to old England and the Riot Act.

Thus, as they say, what goes around comes around and what was once a crime is still a crime. Interestingly, the discussion of boundaries and limits is exactly what the crimes of unlawful assembly and riot are all about: it is the lack of boundaries and limits that marks the behaviour as crimes as opposed to a Canada Day event on Parliament Hill where the crowd gathers in celebration and bon ami.

Sadly, as a coda to this posting, Ryan Berntt, the accused in question, was shot in the head by a police officer’s rubber bullet during the riot and sustained brain damage. In the end, it is individuals, both in the crowd and out of the crowd, who suffer the most. It is the individuals, not the crowd, who stand charged or must face the inevitable morning-after clean up. Perhaps this sobering reality is worth remembering. 

The Criminal Code of Canada: Codification and Reform

Whenever we read of a sensational arrest in the paper or we follow the latest celebrity trial, we are invoking the criminal law. Most of us, lawyers and lay people included, know the criminal law is found generally in the Criminal Code (drug offences are also federally created but are found in the Controlled Drugs and Substances Act and not in the Criminal Code). Lawyers are taught in first year Constitutional Law why the criminal law is created by Parliament: due to the Division of Powers between Provincial Legislatures and Parliament as found in the Constitution Act, 1867, which gives the Federal government exclusive authority to create criminal law.  But many of us do not know why this power resulted in a codified criminal law as opposed to the hodge-podge of criminal statutes as found in the United Kingdom.

Although the first Criminal Code was not adopted until 1892, it was conceived much earlier by our first Prime Minister, John A. MacDonald, who envisioned a codified criminal law as an important element of Confederation. Codification seemed to be on the mother country’s mind as well in 1878 as a codification of British criminal law, Bill 178, written by Sir James Fitzjames Stephen, received Second Reading in the House of Commons but died on the order paper. So too, other Commonwealth nations, such as India, Jamaica, Australia, and New Zealand, flirted with, or in some cases enacted, codified criminal laws.

Even a subsequent Royal Commission could not resuscitate the UK version of the Code. Canada, not being near as critical of the draft English Code, imported many aspects of the draft into the first Criminal Code in 1892. The rest, as they say is history as the Code has maintained its status since, albeit with amendments and renumbering along the way.

Let’s trace the crime of theft as an example. Prior to the enactment of the Criminal Code in 1892, theft was defined through British statute and common law. Indeed, the first consolidation of crimes, which occurred in 1869, included the crime of larceny: the old common law offence of theft. Presently, theft is particularized in our Criminal Code under s.322 as follows:

Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent 

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

(b) to pledge it or deposit it as security;

(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or 

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

Historically, there were numerous statutes in England, which pertained to specific forms of theft such as embezzlement, animal theft, shoplifting, pickpocketing, housebreaking, and the like. Presently in England, although a general definition of theft can be found in the Theft Act, 1968, one would have to also look at other statutes for the specific form of theft involved. For example, the basic definition of theft in the Theft Act, 1968 states:

A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.

However, one would have to look at the Theft (Amendment) Act, 1996 for the crime of “dishonestly retaining wrongful credit.” The Canadian equivalent, of course, is theft and can be easily found under s.322.

Over the years there have been calls to reform the Code to simplify many of the complex and convoluted sections but to no avail: today’s Criminal Code reads much the same as it has for the past fifty years. Much of the difficulty stems from the amendments to the Code, which adds onto existing sections an ever-increasing number of subsections instead of making new sections by re-numbering and re-structuring the Code. For more on this, read my previous blog on lists where I outline the 33 sections found between the search warrant section under s. 487 and the execution of the search warrant found at s.488.  

Clearly, there is still work to do. In 2012, when the Code celebrates its 120^th anniversary, the Federal government should take up the call to reform in order to provide Canadians with a cogent and relevant Criminal Code, which will promote the principles of justice and be a model for developing democracies.   

Charles Dickens Is On The Side Of Justice

I would be remiss, if I did not recognize the 200^th birthday of Charles Dickens and his characterization or, more accurately, “caricature-ization” of law and justice.

In Great Expectations, Pip, the narrator of the book, defines himself through the backdrop of English law. As a child, Pip imagines a spine-chilling scene of officers of the law surreptitiously lying in wait to take him before the Assizes to avenge the bloody nose and black eye he gave a “pale young gentleman” after a fair fight.

The possibility of being brought to “justice” caused Pip to act as a stereotypical guilty man: obliterating all traces of the physical evidence against him and concocting a false explanation for the injury to his hand. Of course his furtive actions were unnecessary as only Pip’s conscious showed any taste for vengeance: in reality, the incident was a normal every day school-yard fisticuff. The presence of guilt, in this instance, was unnoticed and unimportant.

But the issue of guilt or innocence becomes important later, when a murder trial, detailed in a local newspaper, is tried by an adolescent Pip and various townspeople while drinking at the local bar. “Guilty as charged” is the general consensus except for the stranger, clearly a foreigner, who reminds the blood-thirsty ersatz jury of the presumption of innocence.

The newspaper has merely sketched the prosecutor’s evidence without the benefit of cross-examination, the man points out, a central principle in the adversarial system and a cornerstone of a fair trial. Furthermore, the accused had not as yet testified and was therefore unheard in his defence. Any jury, enthused the gentleman, holding true to their oath, would not, could not, pronounce the unfortunate prisoner guilty at such an early juncture of the case. The townspeople, being duly chastised, having seen the error of their enthusiasm, humbly retract their feelings of guilt. In the same moment, the stranger, the Londoner, is revealed as a lawyer and the bearer of Great Expectations.

I have already named Dickens’s Bleak House, in a previous posting, a must read for lawyers or anyone interested in the law for the dark and dreary atmosphere of the novel arising from the impenetrable fog of the court of Chancery. Yet, so many of Dickens’s books read like a first year law case summary as exemplified by these two, of many, legal passages found in Great Expectations.

In fact, let us return to Great Expectations in mid-scene as Pip watches Mr. Jaggers, the London lawyer from the previous passage and now his Guardian, “going at it” in the Police or Magistrate Courts in London. As I could not possibly summarize this delicious passage with any dexterity, I quote it as follows:

We dived into the City, and came up in a crowded police-court, where a blood-relation (in the murderous sense) of the deceased, with the fanciful taste in brooches, was standing at the bar, uncomfortably chewing something; while my guardian had a woman under examination or cross-examination,—I don't know which,—and was striking her, and the bench, and everybody present, with awe. If anybody, of whatsoever degree, said a word that he didn't approve of, he instantly required to have it "taken down." If anybody wouldn't make an admission, he said, "I'll have it out of you!" and if anybody made an admission, he said, "Now I have got you!" The magistrates shivered under a single bite of his finger. Thieves and thief-takers hung in dread rapture on his words, and shrank when a hair of his eyebrows turned in their direction. Which side he was on I couldn't make out, for he seemed to me to be grinding the whole place in a mill; I only know that when I stole out on tiptoe, he was not on the side of the bench; for, he was making the legs of the old gentleman who presided, quite convulsive under the table, by his denunciations of his conduct as the representative of British law and justice in that chair that day.

It is difficult, after reading this passage, to also "make out" on which side Charles Dickens was on: for English justice or against. Certainly, Dickens own personal experience with law was less than salutary as his family bore the burden and shame of debtors’ prison, a thoroughly Dickensian institution for the working poor of England who were unable to meet their financial obligations.

His keen insight into lawyers’ “going at it” may have also come from his experience of working as a clerk in a law office and as a court reporter at the Doctors’ Commons. The Doctors’ Commons was “a college, "or common house" of doctors of law, for the study and practice of the civil law.” Certainly, his fictional accounts of the inequities found in law and in society influenced the reformation of England’s harsh child labour laws, unveiled the intolerable conditions in the poor houses, and revealed the general imbalances between the working poor and the comfortable working class: all by-products of the Industrial Revolution.

This passion for fairness and justice was handed down to Dickens' son, Henry Fielding Dickens, who went on to become a brilliant barrister and Judge. Indeed, Henry’s son was also a successful barrister. All came full circle with Dickens’s great grand-daughter, Monica Dickens, who was a best selling novelist in the 40’s and 50’s, and founded the first Massachusetts branch of the Samaritans, a charitable organization providing support and assistance for those contemplating suicide.

All of this, however, will not stop me from ending this blog with another Dickens law quote from Oliver Twist, when Mr. Bumble, faced with the perfidy of his wife and the conclusion he too was in on the deception, states:

If the law supposes that,' said Mr. Bumble, squeezing his hat emphatically in both hands, 'the law is a ass—a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience—by experience.' Laying great stress on the repetition of these two words, Mr. Bumble fixed his hat on very tight, and putting his hands in his pockets, followed his helpmate downstairs.

In The Name Of Her Majesty’s Criminal Law

Monday is Her Majesty Queen Elizabeth II’s 60^th anniversary of her coronation. The Diamond Jubilee will be celebrated with yearlong events throughout the Commonwealth, including Canada. Canada still has close ties to the Monarchy as the titular Head of State. Our criminal law, in particular, reflects these ties through the stylistic form, or style of cause, used when charging an offender in the name of the Her Majesty the Queen or “Regina.”

There is an understanding in legal circles the Queen’s position in criminal law is purely symbolic: in reality it is the State or Federal Government, through the authority of s.91(27) of the Constitution Act, 1867, has the power to create and enforce criminal law. Despite this, there are a number of areas in the Criminal Code, which use “Her Majesty” as an anchor, both procedurally and substantively.

Going beyond the style of cause, which of course changes to “Rex” when a male Monarch ascends the throne, is the numerous references in the Forms of the Criminal Code. For example, most Orders under the Code, such as an Order to take bodily substances for a DNA analysis, commands, in “Her Majesty’s name,” the attendance of the person named in the Order for the purposes of taking the sample. So too, when an accused is summoned to appear in court, she is commanded to do so in “Her Majesty’s name.”

The police are also commanded in “Her Majesty’s name,” when executing an arrest warrant, to “forthwith” arrest an accused and bring her before the court “to be dealt with according to law.” If bail is denied, “Her Majesty” guarantees safe passage: the police are commanded in “Her Majesty’s name” to safely convey the prisoner into custody.

The troubling part is when the accused is granted bail or is released by an officer in charge. In those instances, the accused must:

acknowledge that [her or she] owe[s] $ (not exceeding $500) to Her Majesty the Queen and deposit herewith (money or other valuable security not exceeding in amount or value $500) to be forfeited if I fail to attend court as hereinafter required.

This leads one to wonder: how much money is owed to Her Majesty? Even though the forfeited money is actually deposited in the Provincial Treasury, and not actually deposited into Her Majesty’s bank account, the hope is the government is using the funds to maintain the criminal justice system. Of course, when the accused fails to pay a fine, there is no longer a Debtor’s Prison, per se, but a sentencing court may impose imprisonment in default of payment of a fine.

Outside of criminal procedure, Her Majesty is a “person” under the criminal law. Specifically, she can be “alarmed,” sold “defective stores” be defrauded, and misrepresented. A person can commit High Treason, one of the most serious offences in the Criminal Code and historically punishable by death, for hurting or causing the death of Her Majesty. Furthermore, a mutinous or traitorous member of the Armed Forces can criminally disappoint Her Majesty.

Despite these possibly criminal acts against Her Majesty, she may, in her munificence,under s. 748 of the Criminal Code:

extend the royal mercy to a person who is sentenced to imprisonment under the authority of an Act of Parliament, even if the person is imprisoned for failure to pay money to another person.

It seems we do need Her Majesty after all.