Julian Barnes, Sherlock Holmes, and A Miscarriage of Justice

Yesterday, the British writer, Julian Barnes, won the 2011 prestigious Man Booker Prize. I have read many of his books, some of which are particularly clever, such as The History of the World in 10 and A Half Chapters, with one chapter dedicated to a discussion of Theodore Gericault's 1819 painting of the aftermath of a shipwreck in The Raft of the Medusa.

Barnes also recently wrote a book simply entitled Arthur & George. This book fictionalizes the real-life relationship between Sir Arthur Conan Doyle, the creator of Sherlock Holmes, and a unassuming solicitor named George Edalji. This semi-fictional account juxtaposes the lives of these two men in the backdrop of one of England's infamous cases of injustice. Edalji, of Indian ethnicity, was wrongly accused and convicted of mutilating cattle and sending poisonous letters in support of the crime. He was sentenced to seven years of hard labour and disbarred until Conan Doyle "took up his case" in a purely Holmesian manner, and managed to clear Edalji's name and restore his law society membership.

This case reminds us that one miscarriage of justice is one too many. In Canada, where such miscarriages have been revealed, not by celebrity writers, but by hard-working individuals, committed lawyers, and dedicated associations, we must be watchful and protective of justice and the repercussions of injustice. 

On September 15, 2011, the Canadian Federal/Provincial/Territorial (FPT) Heads of Prosecutions Committee on the Prevention of Miscarriages of Justice released an update to their 2005 Report. The original Report is large in scope and contains many recommendations. It tackles a broad range of issues, including systemic injustices caused by Crown/Police tunnel vision. This update, entitled The Path to Justice: Preventing Wrongful Convictions, reviews prosecutorial practices and makes further recommendations. Interestingly, the update starts with a quote from another British writer of justice, Charles Dickens, in his book The Mystery of Edwin Drood:

Circumstances may accumulate so strongly even against an innocent man, that directed, sharpened, and pointed, they may slay him.

Barnes, Conan Doyle, and Dickens reminds us, in a literary and engaging way, of the importance of justice in our legal system. It is up to us, however, to translate these works into reality.This requires, as stated in the FPT Update, "continued vigilance."

Wristbands Are In Effect: The "Keep A Breast" Campaign

My daughter is an engaged and informed teen. She reads the news and we discuss controversial issues as a family. She speaks out against injustice and lends her support to marginalized groups. Recently, she showed her support when she and a group of friends attended the gay pride parade. It was a positive experience from which she learned that tolerance and diversity are essential values to a healthy and vibrant community. In short, she is a good citizen.

The other day, after a trip to the nearby shopping mall, she came home flushed with excitement. She had "purchased," using her own money, three silicone "message" wristbands in support of breast cancer. As she proudly displayed the colourful wristbands, she read them out: "I Love Boobies," two of them said; "Check Yourself (Keep A Breast), the other said. To me this was clever messaging in a teen-friendly package. As they "say" Facebook, I "like" it and give it a "thumbs up."

On the weekend, I read, in the newspaper, about parents in British Columbia who don't like it. They find the wristbands offensive and distracting. So much so, the local school banned them. I did what any instructor of human rights would do, I cut out the article for my class.

Today in class, we discussed our fundamental freedoms guaranteed by the Charter, specifically the right under s.2(b) as:

the freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication

The discussion ran through many controversial examples of expression such as public nudity, burlesque dancing, t-shirts depicting violence against women, and even irreligious album covers. The discussion around these issues was often heated and divisive, but then we discussed the wristbands. In this discussion, everyone was in accord with each other: the wristbands are not offensive as they express an important public health message. The message was a cause to support, not to banish.

In a similar case, the United States District Court agreed. According to Madame Justice Mclaughlin, the school imposed ban of the wristbands was found to be an unconstitutional violation of the students' First Amendment rights.

What would happen here in Canada? Considering the Supreme Court of Canada's broad and expansive reading of freedom of expression, there is no doubt the wristbands would be protected expression. Whether or not the code of conduct limiting this expression, would survive s.1 reasonable limit scrutiny requires a more nuanced analysis. I am inclined to believe this prohibiton would not survive Charter scrutiny. A school code with such broadly based prohibitions would not minimally impair a student's right to express themselves. 

In the end, the choice is a personal one. To me, however, the choice is clear: I Love Boobies!

Update on Wednesday, October 19, 2011 at 10:59AM by Lisa A. Silver

Consider this: The Canadian Broadcast Standards Council okays Buchcherry's song entitled Crazy Bitch as it is "not abusive" but "I Love (heart symbol) Boobies" breast cancer wristbands are banned and branded offensive. Go figure?

Am I Late For This Supreme Court of Canada Appointment?

I wake early. This morning was no different, except this morning I woke to the news of the long-awaited and speculated upon appointments (actually nominations) of the Supreme Court of Canada (or SCC - another acronym).

I was on the whole relieved and pleased. Although I do not know Madame Justice Karakatsanis, I do know Mr. Justice Michael Moldaver. He will be an asset to the Court. He is smart, hard-working, and humorous. He has experience as both a trial judge and an appeal judge. He has written judgments in all areas of the law, including criminal law.

He is an oft-quoted judge, even as a trial judge in the superior court. His reasoning tends to be impeccable. Even when he is in the minority on an issue, Moldaver deserves and receives respect. In the SCC Find decision on challenges for cause based on the partiality of potential jurors in a sexual assault against children trial, Moldaver's dissent formed the basis of the accused's appeal. Althought the SCC did not agree with Moldaver's outcome, it is clear that his reasons gave the Court pause for thought and helped illuminate the issues. As the Chief Justice stated:

 As Moldaver eloquently observed in Betker, supra, at p. 447, "the test for partiality is not whether one seeks to change the law but whether one is capable of upholding the law...

I, for one, will look forward to the change.

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?