Let's Talk About: The Importance of Asking "Why" When Discussing Criminal Law

In teaching criminal law, I like the class to think about why certain behaviour is deemed criminal and why other behaviour is acceptable. In learning, it is far too easy to memorize principles without a true understanding of why the principle is given and the reason behind it. The importance of why can lead to a deeper and better understanding of a concept, which can lead one to question the ideas contained therein and can ultimately lead to innovative and unique perspectives on a familiar issue.

 For some forms of behaviour we can quickly understand why the underlying acts are contrary to the law. Murder, theft, and assault are such examples. These are all acts, which we all agree are worthy of sanction. These crimes, which we call true crimes, lies at the essence of what we as a society believe is wrongful and immoral conduct. Not every immoral act is a crime, but in the case of true crimes, morality and legality are both present as philosophy and jurisprudence connect.

However, it is when law and morality do not connect and do not occur contemporaneously that we may be uncertain or unable to agree to the underlying reason or the why such behaviour is prohibited. Then, we may turn to our courts and our judges to decide whether the behaviour does in fact deserve sanctioning. Such an example is the abortion laws, which made abortion and the concomitant acts illegal and the judge-made law, through the interpretation of our Charter, which turned this prohibited conduct into acceptable behaviour.

Or we may question the efficacy of making the behavior contrary to the law and the subsequent public pressure may lead to the government changing the law to make the conduct acceptable and therefore not sanctionable. This ability of public opinion to change the law can be most clearly seen in the consumption of alcohol and the end of Prohibition or Temperance. Thus, our criminal law shifts and changes as our fundamental values as a society change and grow.

It is this flexible concept of the law, which makes learning the law so refreshing and exciting. It is the "why" which makes law relevant to us all and makes us mindful of the transformative effect law can have on a society.

Legally Minded Books to Read

In my last posting, we enjoyed some #longreads and today we will discuss even longer ones. The following is my list of 5 legally minded books to read over the holidays:

1. Crime and Punishment by Fyodor Dostoevsky circa 1956. This book stays with you. There is no other book, which can climb into the mind of a killer with so much detail, perspective, and pity. The horror of the act is observed in the backdrop of a ruthless Russia, where poverty, corruption, and greed reign. Yet, it is tempered by a beautiful and delicate theme of redemption, which is guaranteed to leave you weeping.

2. Bleak House by Charles Dickens circa 1852. I love this book. There is no better opening chapter of a book like this one as the Court of Chancery becomes a metaphor for the thick fog spreading through London like the Angel of Death sweeping through Biblical Egypt when the Pharaoh refused to let the Israelites leave. And so too does the story spread as the wards in Jarndyce vs. Jarndyce weave through the London streets together with delicious characters like Guppy, Tulkinghorn, and Clemm.  The twists and turns in this book is pure Dickens as is the language and the tragic consequences.

3. The Onion Field by Joseph Wambaugh circa 1973. This is another book, which although I read many years ago, I think and ponder about every now and then. This true crime novel, a first for Wambaugh, chronicles a horrific crime in a California onion field and the subsequent court case, which had far reaching consequences both on a personal and societal level. Wambaugh writes a moving account of a factual case and it reads like fiction.

4. A Void (La Disparition) by Georges Perec circa 1994. This quirky book is the kind of experimental writing I find fascinating. A book written completely without the vowel "e", Perec manages to use this omission or void to highlight the Kafkaesque nature of the narrative. Originally written in French, where the vowel e is even more essential, the book is actually highly biographical. Perec, an orphaned survivor of the Holocaust, finds in his missing vowel the personal themes of loss, limitations, and emptiness.

5. Plato's Apology by Socrates. The wry wit employed by Plato as he excoriates the Senate must be experienced first hand by reading Socrates replay of Plato's trial, judgment, and death. It is brilliant rhetoric. Even to the end, Plato had the capacity to teach. Just as we today have much to learn from his logic and reasoning.

Longreads For the Holidays

The holidays is a perfect time to indulge in a book or a longread. In Twitter nomenclature, a longread is an online article which will typically take longer than the usual five minutes or less one might spend reading a web page. There is a good reason searching the internet is called "surfing": one doesn't want to spend too much time on that big wave. It will either peter out and disappoint or it will come crashing down and inundate us.

In any event, the following is a list of 5 longreads I found:

1.Karyn McCluskey: the woman who took on Glasgow's gangs: This is an article of one person's fight to find peace in a turbulent City. Karyn McCluskey, a former nurse, forensic psychologist, and head of intelligence analysis for Glasgow, turned the City's gang mentality around by understanding how violence worked "like an infectious disease" and beget "recreational violence," which in turn created the City's gang mentality. Through the use of a Boston-based initiative called "focused deterrence strategy," the scheme couples zero tolerance with, what I can only describe as, an intense collective "scared straight" program. 

2. Sleep Disorders Common Among Cops: Study Fascinating longread of a study which indicates 40% of police officers in North America suffer from sleep disorders, which may impair their judgment and reaction time. The actual journal article from JAMA is for purchase only but the Abstract is here. There is also a companion author video here.

3. A Guide to the Occupy Wall Street API There is so much out there on the Occupy movement but this longread puts an apt API spin on it. 

4. Armenian Genocide Articles: I have connected some short read articles on the Armenian genocide issue, which has been re-ignited by the recent French Bill criminalizing denial of the World War I massacre. The incredible reach of this issue makes these connections even more fascinating but the real issue of the massacre is what makes world politics disturbing. Read the articles here, here, here, here, and finally for an article on how art connects to life: here.

5. Who Owns The Words? This is from 2010 but a very relevant longread, Texts Without Context. This is a book review of Reality Hunger, a "book" by David Sheilds. The book is a compilation of excerpts of other writer's works, which are at times manipulated or micro-managed to suit Sheilds's intent. Many of the quotes are taken out of context and as such, become, through a fresh reading of the words, imbued with a new meaning. In this way, Sheilds makes these words his own. Two connections come to mind for me: Stanley Fish's Is There A Text In This Class? and the use of music sampling and remixing in hip-hop and dubstep.

So kick back and relax this weekend with some #longreads or better yet, find some for yourself! As Sir Arthur Conan Doyle wrote as Sherlock Holmes: "What one man can invent, another can discover."

Connecting Hitchens, Havel, And Kim With Human Rights

This past week three extraordinary people died: Christopher Hitchens, Vaclav Havel, and Kim Jong-il. All three impacted the world and human rights, but in very different ways.

When any famous or, shall we also say, infamous people die, there are many news articles, opinion pieces, and blogs about them and their legacies. Some postings were laudatory, as in the case of Vaclav Havel, the enduring symbol of the Czech "Velvet Revolution" or what the Czechs' prefer, "the November events." Havel was an artist, a celebrated poet and playwright. But he was also a dissident who was deeply passionate about his homeland and the concept of democracy. After the Revolution, Havel was appointed President and returned Prague to its magnificence as the "Paris of the East." 

Other articles were castigating: the demise of Kim Jong-il revealed the pathos of a country caught in the iron grip of oppressive dictatorship. A country where "the opium of the people" was the leader himself: worshipped and idolized. To observe the grief of the country over Kim's demise is like watching a slow-moving train wreck as people, young and old, collapse on the streets. A crumpled and lifeless country, devastated by the loss of a caricature of a leader. Truly, the antithesis of Havel - an AntiHavel - not embracing a nation but preserving it under glass as an ornament of the past.

Still other passages were quirky and colourful like the man whom they purported to describe: Christopher Hitchens, himself a demi-God (he would have hated that!) to the witty and smart set. But he was a scrappy fighter for the underdog and a true critic, or shall I say cynic, of the world. He was an observer, who also participated, and that made him the ultimate man of the post-modern era. 

With all three men, we are faced to re-evaluate our own consciousness of being, our own concept of freedom, and our own mortality. Shall we think big and be like Havel: become a social activist and speak out for issues we hold dear? Or shall we look at the individual or micro-rights and change the world, one individual at a time. We definitely will not be Kim and rigidly adhere to a false construction of reality.

Whichever way we decide to "celebrate" these lives and their legacies, what is clear is this: they force us to make choices and to decide what we believe in and on which side we stand. But better yet, I say we think as Hitchens would have liked us to do and ask ourselves "is there really a side at all?"

Chalk one up for humanity in this week of reflection.

A Backgrounder On Reference Cases In Canadian Law

This morning the Supreme Court of Canada rejected the concept of a national securities regulator. They did this under the authority of s. 53 of the Supreme Court Act whereby the Federal government can directly refer to the SCC a question of law or facts concerning the constitutionality of proposed legislation. The Provinces too have similar provincial legislation permitting a Reference to their respective appellate courts. 

On a Reference, answers to the questions posed by the government are not legally binding but due to practice have become so. Typically, the government referring the matter heeds the Court's decisions and either re-draft the legislation to conform to the precepts set out by the Court or return to the negotiating table if it is a matter of social or political policy. Thus, matters referred are issues of public importance, which require the speedy process of a Reference to receive timely input on the viability of proposed legislation before it is enacted.

Such a procedure to determine the correctness of legislation is not a tool broadly used in common law countries. Both the United States and Australia have found such a pre-vetting tool unconstitutional. England has a modified version through the use of advisory opinions.

The International Court of Justice will hear issues on reference. However, this practice has been criticized by many international experts. The procedure been used to garner support for controversial political issues without full support of the international community including the countries directly involved. A list of such reference cases can be found here.

Canada, on the other hand, has successfully used the Reference process for controversial issues. In 1981, the SCC determined, on Reference from three Provinces, the format of the patriation of the Constitution from the UK. As a result, the Federal government could not amend the constitution without unanimity. The provinces and the Federal government returned to the negotiating table, resulting in major changes to the Charter, including the addition of the s.33 "notwithstanding clause." This modification gave the provinces the power to override the application of certain sections of the Charter, including the fundamental freedoms, if such sections conflicted with provincial legislation. This later permitted the PQ government in Quebec to re-enact all of their provincial legislation with the override protection.

The Federal government has also used the Reference mechanism politically when it referred the hypothetical issue of Quebec secession in 1998. The decision, which determined a province could not unilaterally secede, also suggested that if a province had a popular mandate to do so, the Federal government had an obligation to negotiate on the issue.

Thus, we return to today's Reference with perhaps a better understanding of the process and the import of the decision. The SCC has decided, through a division of powers analysis, that a national securities regulator is inconsistent with our Constitution Act. Not doubt, this decision will do as References have done in the past, send the Federal government back to the drawing table and negotiating table, in an effort to implement, albeit in a different manner, their political intentions. The end result may prove, in the long run, to be the best result for Canada.