How To Navigate Through The Digital Era: A Review of Digital Evidence: A Practitioner’s Handbook

Advocacy is not simply a creature of the courtroom but is, in essence, a state of mind informed by legal principles and enhanced by strategic and tactical concerns. A skilful advocate will be able to approach each case with a tactful mindfulness, which will start from the moment the client calls to the moments after the case is decided. There are many such legendary advocates such as Clarence Darrow,G. Arthur Martin, and Eddie Greenspan. Natural talent does make a difference but truly what separates the great from the good is the desire to be continually curious about the craft. This continual renewal means being on the cutting-edge of the law. Today, such a skilful advocate melds old school advocacy with knowledge and appreciation of what’s next. What’s next, and actually already here, is technology as a legal platform. In criminal law, this means technology is not just a place people do business but a space in which people live. The key is to superimpose skilful advocacy onto the circuit board of the future. To help us successfully navigate through the digital era isDigital Evidence: A Practitioner’s Handbookby Gerald Chanand Susan Magotiaux,from the Emond’s Criminal Law Series, specially written with the technologically inclined skilful advocate in mind.

The lawyer by nature is a multi-tasker: trained to see the trial not as a linear exercise but as a multi-layered, multi-dimensional entity in which all of the moving parts of a case must be artfully molded into a workable case to be persuasively and successfully presented to the court. Throw into this delicate mix new age technology and you have, not a work of art, but a machine. Digital evidence in the courtroom re-constructs the traditional case – essentially taking a file from the Clarence Darrowinspired Inherit the Windbased on the Scopes “Monkey Trial” of 1925and plunking it down into the delightfully digital melange of Blade Runner 2049.  The Handbook appreciates the nuances of this task and is a helpful “all in one” guide for the practitioner faced with the challenge such digital cases bring. 

The practitioner bent is nicely explicit throughout the book as it continually and consistently metes out trial advice not as an afterthought to the law but as a practical outcome of it. For example, in the opening pages of the chapter on reasonable expectation of privacy, the authors remind the practitioner to focus on what was seized digitally as opposed to emphasizing the static location of the hardware. Of course, this focus on content over form just happens to be consistent with the focus of the Supreme Court in recent decisions on technology-based searches. In this way, these trial tips sharpen the law into a useable trial tool. But the Handbook does more than offer tools. Throughout the Handbook, the authors provide suggested factors to consider in dealing with the various in and out of court issues, which may arise in such cases. This attention to everyone means that the trial tools are “non-denominational” as they are useful for every player in the justice system defence, Crown, police and even judge. Essentially, the Handbook endeavours to create a virtual tool box that can be custom made for whomever has the need to create a case. Better yet, these tools are not saved into an outbox folder for view at the end of the book but reside within each discussion byte-point as the digital journey proceeds in the Handbook. 

Even if you are attracted to the Handbook purely for the tips, you will certainly read it, cover to cover, for the more traditional discussion of the various legal issues engaged by digital evidence. With a “bit to byte” approach, the Handbook is a smart guide on all of the technological dimensions of a criminal case from Part I on search and seizure, to Part II on disclosure, and finally ending in Part III on the use to be made of the evidence. These Parts divide the Handbook into three conceptual areas: the investigative stage, the pre-trial or case building stage, and concluding with the trial stage where digital technology is used both within the trial process as evidence and as part of the trial process as a tool for presenting that evidence. 

Each Part is further divided into discrete chapters. I am particularly impressed with the opening chapter on the Reasonable Expectation of Privacy in Digital Data. I agree with the authors that reasonable expectation of privacy (REP) “opens and ends the s. 8 analysis” (page 4). Actually, I would go further and suggest REP is theplace in which s. 8 resides (although that depiction may be too ‘territorial’ in aspect for some) and as such is the lens through which digital evidence must be viewed throughout any analysis, be it for legal commentary or trial use. Then there is the less esoteric but equally important chapter 7 in Part II Disclosure on Practical Constraints on Crown and Defence. This chapter is a tell all discussion of how to maneuver through disclosure undertakings, the real cost burden of giving and receiving digital disclosure and the myriad of access to justice issues resulting from the thousands of pieces of data disclosure connected to these files. This big-picture through a magnifying lens approach to digital evidence strikes the right balance between practice and principle – just what a skilful advocate needs and wants. 

Another highlight of the Handbook is the high-level discussions of technological terminology such as the “chipping” and “parsing” required to extract and copy data from a smart phone (page 168). Or the introduction to the “thumbnail” database (page 202) as an indicator someone has viewed a particular computer file. My favourite techie talk is the “Trojan Horse defence,” wherein the defence position goes “viral” by suggesting illegal computer data was parachuted onto the computer through the back door by a hacker or by the use of malicious software. 

If there is a weakness to the Handbook it comes by it honestly. Although Canadian case law does not have the high-speed energy of sci-fi movies, it does have a large and I mean a mega large pool of case law on the use and misuse of digital evidence. The downside to the book, which is not a failing of the authors, is the sheer number of cases which now engage digital evidence. In fact, the book just missed the release of the Supreme Court’s pronouncements in Marakahand Jonesand as such the book, although in sentiment is reflective of these seminal cases, cannot reference them directly. This is where perhaps the publisher might want to use some digital magic of their own by turning the book into a digitally interactive hyperlinked online e-zine that can be updateable by a click of a mouse. Perhaps it will become an App, accessible on your smart phone or iPad. 

Whatever the format, this book truly is a “how to” guide to the digital world, reminiscent of the Hitchhiker’s Guide to the Galaxy, the subtext is - read this book and “Don’t Panic.” More accurately, read this book and you will become more skilful at technological advocacy.

 

Ideablawg Weekly Connections: From Twibel to Chaucer

This week, I surfed the Internet and did some reading the old-fashioned way – nothing like holding and having a book - so let’s look at the week in review:

1.   Google Glasses are being talked about and well they should! As the next step in computer/human interface, these glasses would really come in useful in the courtroom when you need to bring up that name of a case – you know that name! Google Glasses could tell you that. Of course, Google Glasses can also keep the lawyers busy as in the case of the California woman, who was charged with distracted driving while wearing her special specs. The California law makes it illegal to “drive a motor vehicle if a television receiver, a video monitor, or a television or video screen, or any other similar means of visually displaying a television broadcast or video signal that produces entertainment or business applications, is operating” and, as she was also speeding at the time, a puzzled police officer pulled her and her Glasses over. The Judge, however, acquitted the feckless (not specless) woman, as there was no evidence the Google Glasses were operating at the time of the incident. My only question is: how could you ever prove that? Maybe the police need some new technology? Can that laser catch speeders and readers?

2. Peter Ackroyd, a British writer, historian and biographer, has written numerous fiction and non-fiction books, mostly about his beloved London. I have read a number of his books, most notably London Under, about what is found under the city – you’d be surprised what’s there - and The Casebook of Victor Frankenstein, a fictionalized backgrounder to the good Doctor. I have recently read a raft of his biographies; some from his brief lives series, including Turner, Poe, Newton, and Chaucer. The Chaucer bio was fascinating as Geoffrey Chaucer was a minor Court official, who really only wrote as a side career. He also had some legal training and was used by the Kings (he survived more than one) for delicate diplomatic missions to France and Italy. Not only does Ackroyd give us non-fictional accounts but he usually ties these peregrinations to a fiction book as well. For instance, he did a marvelous re-working (or translation) of The Canterbury Tales and then re-worked them even more to write Clerkenwell Tales. I also recently read his fascinating biography on Charles Dickens. By the way, watch for the Dickens movie to be released with Ralph Fiennes as the venerable, and love-struck (read the book to see why – the movie is called The Invisible Woman) author. Of course, Dickens did work as a law clerk in Chancery Court when he was young and his novel, Bleak House, brings his past experience to life (or death as we are talking wills) with a comedic flare that is both cynical and heartwarming. I have written a couple of blogs on Dickens in the past here and here

3. Back to law and the Internet – this time law and the Smartphone as Courtney Love successfully defends against a defamation case caused by her tweeting that her attorney, in her Kurt Cobain estate case, was “bought off” not to represent her.  Apparently, the tweet was supposed to be “private” and the jurors agreed. A “private” tweet therefore was not considered “twibel,” which is a libelous tweet of course. Not only is this the first twibel case but, I think also the next word to make it as the Oxford Dictionary Word! Selfies is so last month!

4. I have also been reading some law and imagery articles and I have been particularly struck with articles written by Peter Goodrich, who is the Director of the Law and Humanities program at the Cordozo School of Law. His writing is witty, vivacious, and thought provoking. Try reading his article on Specters of Law: Why the History of the Legal Spectacle Has Not Been Written, which speaks of the visible and the not so visible legal tradition that lawyers have constructed. 

Charles Dickens Is On The Side Of Justice

I would be remiss, if I did not recognize the 200th 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.

 

Required Reading For the Criminal Lawyer

The following five classic books should be required reading for any criminal lawyer or anyone simply interested in understanding the reason behind fundamental criminal law principles:


  1. Rethinking Criminal Law by George P. Fletcher. Although written in 1978, this book by George P. Fletcher, a prolific and thoughtful legal scholar and now Chair of Jurisprudence at Columbia Law School, is still a relevant and fascinating journey through the landscape of criminal theory. From his first chapter entitled The Topology of Theft to his last on The Theory of Justification and Excuse, Fletcher covers the wide and varied spectrum of criminal offences and defences through elegant, yet colourful, language. Throughout, he questions the reasons behind traditional common law precepts and lends a decidedly American dimension to criminal law principles.

  2. Punishment and Responsibility by H.L.A. Hart. What Fletcher is to American criminal jurisprudence, Hart, who was a professor of Jurisprudence at Oxford University, is to English criminal law, and then some. Hart, a legal positivist, expounded his legal philosophy in a series of books written in the sixties, his most famous being The Concept of Law in 1961. It is, however, his volume of essays in legal philosophy compiled in Punishment and Responsibility from 1968, which I have read and re-read since my first days in law school. Hart is definitely not for the “faint-hearted” as he extends and refines the theories of John Austin and Jeremy Bentham. Both John Rawls and Ronald Dworkin, also “giants” of legal philosophy, were past students of Hart’s and greatly influenced by him. Indeed, the “Hart-Dworkin” debate on the efficacy of legal positivism is legend in the annals of legal philosophy.

  3. The Limits of the Criminal Sanction by Herbert Packer. Another American legal scholar, Packer coined the present-day models of criminal process: the “crime-control” model, which emphasizes the efficient apprehension and punishment of criminals in order to protect the law-abiding citizen and the “due process” model, which protects the rights of the accused through a fair and just criminal process. In this 1968 book, Packer extends his models and discusses the role of punishment or sanction in our criminal law. He speaks of both traditional modes of sanctioning and the ability for these methods to deter crime. As well, he offers alternative methods. Interesting to note that some 40 years later, we are still struggling with the same issues.

  4. Narrative, Violence, and the Law: The Essays of Robert Cover. Although not a complete book written by Robert Cover, but a compilation of his works, the essays found within the covers are some of most mind-bending legal works I have read. Robert Cover, whom I discussed in a previous posting, was, in his short lifetime, a profoundly creative legal thinker, whose writings force the reader to think of traditional issues in a startling new way. I highly recommend Cover’s essay entitled Violence and the Word.

  5. Criminal Law: The Meaning of Guilt: Strict Liability, Working Paper No. 2 1974, Limits of Criminal Law: Obscenity: A Test Case, Working Paper No. 10, 1975, Criminal Responsibility for Group Action, Working Paper No. 16, 1976 – all by the LRCC. In the early to mid-1970s, Antonio Lamer, who later became Chief Justice of the Supreme Court of Canada, was the Vice-Chairman and then Chairman of the Law Reform Commission of Canada (LRCC). During his sojourn as head of the organization, the LRCC produced a number of excellent Working Papers on criminal law generally but more specifically, on the issue of criminal liability. Three, in particular stand out, and are a must read for anyone interested in the fault element of crime or criminal intention. They are written in a very clear manner as they were intended for public consumption. The actual 1976 Parlimentary Report is entitled Our Criminal Law.


Shakespeare's Courts And The Promise To Marry

Today let's travel back some three hundred years from Dickens to Shakespeare. Shakespeare would undoubtedly be familiar with the Prerogative Court and the Consistory Court of the 1500s. Prerogative Court was a Church Court in which the powers and privileges of the sovereign were exercised. The Prerogative Court of Canterbury handled the probate of Wills for the south of England and Wales. This court was eventually subsumed into the Court of Probate in 1858. You can find some of these Wills at the National Archive website such as Jane Austen’s Will from 1817.

The Consistory Court of London was another Church Court involved in marital issues including disagreements over estates. In "The Lodger Shakespeare" by Charles Nicholl, Shakespeare's life is illuminated not through his plays but through his personal relationships while he lived in London. Nicholl examines those around Shakespeare: his landlord and landlady as well as those he interacted with on a daily basis. Nicholl describes Shakespeare witnessing or actually presiding over his landlady's daughter's plight ceremony or betrothing. According to Nicholl, such a ceremony was a recognized form of marriage occurring before the religious ceremony. This betrothing had the force and effect of a signed contract and an aggrieved party could sue on the basis of a breach of this plight troth.

These contracts were the precursor to the common law marriages recognized by the courts even today. Nicholl discussed the difference between the de futuro marriage (a future agreement) contract and the de praesenti (a present marriage contract). The de futuro contract is only binding upon consummation of the marriage, while the de praesenti is binding immediately. Indeed, Shakespeare’s play Measure for Measure revolves around such a ceremony and contract with a delightful “play” on the sexual requirements to make such a contract enforceable.

In Canada there is no right to sue on a breach of a promise to marry. However, there may be an action to return an engagement ring if an engagement is broken. In D’Andrea v. Schmidt, a 2005 Saskatchewan Court of Queen’s Bench case, the defendant Kim Schmidt, who was the wearer of the ring, argued that such a lawsuit was based on an “anachronistic law” which discriminated against women and perpetuated stereotypes contrary to s.15 of the Charter. Such a cause of action, she argued, treated women like chattels and was not within the spirit of societal values. Needless to say, this argument did not have the “ring” of truth as the Court found a lawsuit for the return of gifts given in promise of marriage could be brought by either sex.

In McManus v. McCarthy there was a valid marriage but the husband wanted the return of the engagement ring after the marital breakdown. Madame Justice Kenny ordered the return of the ring as it was found to be a conditional gift only. No surprise as this marriage lasted 9 days and occurred after 4 prior engagements!

Betrothals do matter, however, when it comes to immigration. Refugee applications in Canada can be based upon the coercive effects of arranged marriages in foreign countries such as Ghana. See this link for a case on point. Such “marriages” can start at a very early age with a betrothal and thus an expectation of marriage at a much later date. This situation is a contract de futuro where the woman, when old enough to appreciate the situation, does not consent. It appears these claimants are not typically granted refugee status.

Shakespeare was therefore very much aware of the necessity for the rule of law as in his famous line from Henry VI suggests:"The first thing we do, let's kill all the lawyers." This line was not written to incite against the law or rail against lawyers, but was written to underscore the need society has for the rule of law, without which, anarchy reigns.

Bleak House And The Court of Chancery

My legally minded book choice to re-read this holiday break is Bleak House by Charles Dickens. In Bleak House, the courts are more than a backdrop to the story but the elemental building blocks of the story’s structure. The opening chapter tells all as the Court of Chancery obscures characters in its process and procedure. The Court is thus cast as the arch-nemesis of all.

Dickens published Bleak House in installments in 1852 to 1853. The novel reflects the English Court of Chancery as it was in the 1800s. This was a Court of Equity, originally the court of redress for those who could not find legal remedies in the common law system. An English equivalent to the American Judge Judy. The Lord High Chancellor created the court in the 1500s after years of serving as the King’s delegate in deciding citizens’ petitions to the King. See the English National Archives website for a review of ancient petitions from the time of Henry III to James I. Shakespeare’s Will is also available on this website. Also peruse Chancery decisions online from 1606.

The rule of law in Chancery was that of equity and fairness, not of the rule of law. As depicted in the novel, by the time of Bleak House the Chancery Court was awash in deadlock (a pun on Bleak House) and inequities. Cases before that court took many years to come to fruition and, as in Bleak House, more often than naught would come to an ignominious end as lawyers’ fees dissipated whatever ‘equity’ remained in the case.

Presently, the Court of Chancery is part of the English High Court of Justice. There are still Chancery courts found in some jurisdictions of the United States, such as Delaware. So too Canada had a Court of Chancery, which merged with common law courts in 1881.

A prime example of an English Chancery Court decision can be found in Fletcher v. Fletcher from 1844. Jacob Fletcher filed the lawsuit as the “natural” or illegitimate son of the testator, Ellis Fletcher, for the large sum of 60,000 pounds. Ellis died ten years earlier but the document establishing this claim was not uncovered until much later. Indeed, the claim was found wrapped up in a “brown paper parcel” and in the personal papers of the deceased. The defendants in the suit are the “infant children” of the deceased and supposedly legitimate. The Vice-Chancellor, however, finds in favour of Jacob.

Although the case does not have the drama of Jarndyce vs. Jarndyce, it does have the elements of intrigue and heartbreak. Every lawsuit is a story and a narrative of the past. From law to literature as a reported decision comes to life in the pages of Bleak House!

Another alternative is to watch the outstanding rendition of Bleak House as presented by PBS on Masterpiece Theatre. Canadian actress, Gillian Anderson, is sublime in her role as Lady Dedlock. The direction and cinematography is uniquely modern, yet holds true to the period piece genre.

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.

The Art and Science of Connections

While reviewing my posts, I began thinking of connections and how seemingly unconnected events can provide meaningful and sometimes surprising connections, which can then further enhance our understanding of the subject. Every Friday, I read Simon Fodden's Friday Fillip blog and yesterday he too was discussing connections in his Degrees Of Connections posting. As opposed to Steven Johnson's concept of mentally connecting ideas for innovation, Fodden offered a mechanical option through Wikipedia's Xefer site. This search engine, using Wikipedia articles, can connect any three words to come up with a search list of articles connecting those concepts through a visual "tree of knowledge."

I plugged in three concepts from my previous blogs, not obviously connected: inherit the wind, redemption, discrimination. The results are fascinating as Art and Science truly come together. 

Of course, this mechanical connecting encouraged a mental one and I started making connections between my blogs. Here is my first "six degrees of connections": October 12 Law, Literature, And Inherit The Wind to November 9 Freedom Of Expression In The Classroom to November 8 The Pridgen Case and Freedom Of Expression On Campus to October 18 Wristbands Are In Effect: The Keep A Breast Campaign to October 25 On The Road To The Supreme Court Of Canada to October 22 The Road Taken By The Supreme Court Of Canada which leads back to the October 12 blog. Whew.

How did they connect? I went from Inherit The Wind, the play involving the prosecution of Mr. Scopes, a teacher who taught evolution in the classroom which connects to freedom of speech in the classroom and the PEI case of Mr. Morin showing a controversial documentary in his grade 9 class which connects to freedom of expression by students on campus involving the Prigden case just heard before the Alberta Court of Appeal which connects to freedom of expression of students wearing breast cancer wristbands which connects to what cases have been heard before the Supreme Court of Canada and the Whatcott case involving freedom of expression issues intersecting with freedom of religion issues which connects to the case the SCC should hear on freedom to be free of religion in the classrooms as a result of Morinville, Alberta school and the Lord's Prayer which connects back to Inherit The Wind and the freedom to be free of religion.

How was that for a weekend brain twister? Try it and make either mechanical or mental connections. Who know where they might lead? 

What's in A Word? From Treason To Celebration

Today is Guy Fawkes Day in the UK and, although recognized increasingly less, also in Newfoundland. Guy Fawkes was a radicalized Catholic, who attempted to blow up King and Parliament in the 1605 Gunpowder Plot. His treasonous actions resulted in his execution. It is celebrated tonight through the burning of bonfires, the lighting of fireworks, and the burning of the miscreant's effigy.

There is also a more modern connection as the Occupy movement have taken Guy Fawkes as a symbol of revolution. On a gentler note, the event imbues deeper meaning to the name of Professor Dumbledore's Phoenix; Fawkes

Treason itself is an oddity. Defined as an act of betrayal against one's government, it is an ancient crime still found in our Criminal Code, yet rarely used. Indeed, until repealed in 1995, high treason was considered in equal seriousness as first degree-murder, attracting similar penalties including the death penalty. 

Yet, how does such a terrifying event transform itself from terror to celebration, from revolution to praise, and from death to disuse? For an answer, we can turn to the Canadian experience and to an equally seminal historic event; Louis Riel and the Red River Resistance. At the time, Louis Riel was considered a radical, his provisional government was branded treasonous, and for his efforts he too was executed.

His actions have now been viewed quite differently as the founder of Manitoba and the protector of Metis rights. School-age children are not taught to expunge his memory but to embrace his vision and to appreciate the background story behind his revolutionary actions. Even the government has been asked to re-draw their perspective through Pat Martin's private member's bill, the Louis Riel Act, which, if passed, would commemorate Riel's actions and expunge his "crime."

History, therefore, is a fluid concept: as we navigate through time, differing perspectives colour the past, providing us with a richer present. As a result, you may never view a word or event the same again. Now that's something worth celebrating.

 

 

Caring Communities, Crime, and Jane Jacobs

Yesterday, I discussed the new twist on Halloween manufactured by schools who view the holiday as sending the wrong message to impressionable children. Two schools in Calgary, in an effort to promote diversity and caring, prohibited violent or scary costumes and held "caring" assemblies. Parent council members applauded the emphasis on caring communities but were not as impressed by the promotion of Halloween as a symbol of that notion. I agree. The connection to Halloween seems forced and proffers an inconsistent message as opposed to a positive one.

However, the concept of teaching children the importance of a caring community should be embraced by the educational systems. For example, there is clear evidence that community based policing works to reduce crime, particularly in case of young offenders. But community caring can have even greater impact on crime reduction; just ask Jane Jacobs.

Jane Jacobs, in the early 60's wrote a book called The Death and Life of Great American Cities. In this book she outlined her theories on why so many American cities seemed to be faltering, both socially and structurally. Jacobs was not a city planner nor was she academically trained in the area. She did however have a keen eye for observation and an heightened awareness of urban issues. Her book was devastating. Full of common sense and anecdotal evidence, her views brought to light the serious misstep city planners were prone to make; permitting empty grey areas between public and private areas, which encouraged crime and discouraged community ownership.

Indeed, community caring is at the core of Jacobs's theories. In order to have a safe community we must all be community watchers, effectively the "eyes on the street." However, this will only naturally happen if, according to Jacobs, we have a vibrant and busy sidewalk life. This means people. This means strangers. But this also means watchful eyes directed at the community. In short, busy City life, as exemplified by busy sidewalks, creates a caring community, which has our "backs" so to speak. Thus, we can freely move about the City, without fear, without the use of the artificial eyes of security cameras, in a caring vibrant, diverse community. 

Recently, some fifty years after Jacobs's ground-breaking theories, there was an article in the Calgary Herald on the importance of reducing crime through proper city planning. Isn't it about time we listened?

 

 

Where Has Redemption Gone?

I was listening to Robert Greenberg's outstanding DVD course on classical-era opera when the subject turned to Mozart's Don Giovanni, a masterpiece, not only in music, but in narrative as written by the librettist Lorenzo Da Ponte.

Don Giovanni, is a dramatization of the Spanish neer-do-well, Don Juan. In the opera, the Don seduces or rapes, depending on your point of view, the daughter of the local Chief of Police. The Don arrogantly and thoughtlessly kills the Chief, who was defending his daughter's honour. In the backdrop, acting as the Don's moral conscience, is his cowardly servant, Leporello, who berates the Don for his unseemly crimes.

From there, the play moves through the three "R"s; revenge, refused redemption, and finally, retribution, as the ghost of the slain father, in the form of a cemetery statue, destroys Don Gionvanni.

Don Giovanni is not just a delightful feast for ears and eyes but is a present-day reminder of the power of revenge, retribution, and redemption in our criminal law. In H. L. A. Hart's classic book of essays, entitled Punishment and Responsibility, the concept of retribution is uncovered, analyzed, and redrawn, as Hart makes a case for punishment connected to criminal liability and guilt. Since 1968, when Hart first published his theories, sentencing has gone through many reforms; moving away from retribution and revenge and toward the goal of rehabilitation through redemption.

But has this reform in sentencing worked? Is redemption possible? Is rehabilitation workable? And if not, are there punishment alternatives which still preserve the dignity of an individual while encouraging redemption? These are but a few of the questions we must ask before the Canadian government enacts the proposed sentencing "reforms."

Perhaps it would be helpful to look globally at our closest legal system, the UK, for an answer. The Ministry of Justice Structural Reform Plan, published, in 2010, a Green Paper on sentencing reform entitled Breaking the Cycle: effective punishment, rehabilitation and sentencing of offenders. The Government's response , recently released in June 2011, has some surprising recommendations, which I will discuss in tomorrow's blog. I will, however, conclude with a teaser question: is redemption dead?

Blog Interruption: To Kill A Mockingbird

I interrupt my blog scheduled for today for good reason. Yesterday, I saw the excellent Theatre Calgary production of To Kill a Mockingbird. The play, based on the book by Harper Lee, recounts a seminal year in the childhood of Jean Louise (Scout) Finch in the backdrop of a rape trial of a Black man in the deep American South of the 1930s. Scout's father, Atticus Finch, is the lawyer, representing the accused.

The case has already been decided by the townspeople many years before the trial even starts; the victim is a White woman. The audience knows this and knows the inevitable will happen; an innocent man will be convicted and put to death because of the colour of his skin. We know this and yet we hope. As Jean Louise, her brother Jem, and her friend, Dill, hope, so we too hope. But like a train wreck waiting to happen, it happens and the shock of the inevitable is still crushing no matter how we try to cushion ourselves from it.

This play/book is an important reminder of the frailty of human kind and the impact which justice and injustice has on it. Indeed, one cannot help but feel, after reading the book or watching the play or movie, that equality and justice is the paramount goal for which we all strive, even if it takes us a long time to get there.

In order to get there, according to Atticus Finch, we must have empathy for others, live in another man's shoes so to speak, see the world through another woman's eyes; the disenfranchised, the vulnerable, and yes, even the prejudiced. Only then can we truly recognize each other and make steps, even baby steps, toward a free and just society.

Thank you Harper Lee for this reminder.

For more on literature, law, and miscarriages of justice see my October 18 blog on Julian Barnes, Sherlock Holmes, and A Miscarriage of Justice. For more on the backdrop to the case dramatized in To Kill A Mockingbird, read about the Scottsboro case here.  On the banning of this book in schools read the 2009 Toronto Star article here. Finally, read the book, go to the play, or watch the movie!

Tomorrow, I will reconnect with the Supreme Court of Canada and the case they should and, possibly, will take.

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."