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 Indeed, until repealed in 1995, high treason was considered in equal seriousness as first degree-murder, attracting similar penalties including the death penalty.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."

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

Poetic Justice?

Does poetry have a place in the courtroom? An Ottawa Crown thinks so. In an attempt to convince a judge to convict an accused of an impaired driving charge, the Crown set his submissions to rhyme. Although the judge convicted the accused, she did not mention the use of the unusual literary device. My advice to the Crown: don’t quit your day job.

Poetry and the law are no strangers. Many eminent poets have also been trained in the law such as the American, Wallace Stevens and the Spanish poet, Frederico Garcia Lorca. In Canada, F. R. Scott was a legal scholar who also waxed poetic. He held the position of the McGill Dean of Law in 1961 and was a well-respected constitutional/human rights litigator. Indeed, he was a vocal proponent against the Quebec anti-communist statutes known as the “Padlock Laws.” His poems are beautiful. They are insightful reflections of a proud Canadian and are well worth reading.

But does poetry, for it’s own sake, have a place in the legal arena? It depends on the use. In the Emkeit case, the Crown read an inadmissible and inflammatory poem to the jury on a murder trial. Although the majority of the SCC did not overturn the conviction, the strongly worded dissent by Hall, Spence, and Laskin JJ. suggest they were not amused by the “so-called poem.”

On the other hand, in light of the contextual approach used by the SCC in Charter cases, poetry and other literary material may have a place in elucidating and interpreting Charter rights and values.

For those interested in further reading, there are suggestions at the Law and Literature blog from April.

Law, Literature, and "Inherit The Wind"

When I lecture, I like to take a Brain Break or a moment to reflect on a particular issue being discussed. Usually, this takes the form of big idea questions, or a fact situation, or even a decision-making exercise, which the class then tackles in smaller discussion groups. So let's take a Brain Break, on this October Wednesday, through a segue from human rights to literature, and discuss Inherit The Wind by Jerome Lawrence and Robert E. Lee (no, not the Civil War Lee who died in 1870 on this day - is this irony?).

Inherit The Wind is a dramatisation of the infamous Scopes "Monkey Trial" where the theory of evolution expounded by Darwin was "on trial" as a result of a high school biology teacher's decision to teach the theory rather than the accepted idea of biblical creationism. Clarence Darrow, one of the great trial lawyers of the era, represented the teacher and turned the trial into a reflective examination of society's tolerance for differing and controversial view-points.

In the movie version, Clarence Darrow is brilliantly played by Spencer Tracy with Frederick March as his nemesis prosecutor Matthew Brady. Completing the triumvirate, is Harry Morgan (aka Col. Sherman T. Potter - another civil war reference?) as the presiding Judge. The play is indeed, even on a surface reading, an engaging repartee between two conflicting ideals: one of freedom of expression thought, and belief and the other, freedom of religion and sacred thought. Aha, we are back to expression! A fundamental freedom at the core of our most deeply held beliefs and so many times, opposing other fundamental Charter values, such as religion and equality.

On a deeper reading, Inherit The Wind is a treasure. Written by the authors during the period of oppressive McCarthyism, the book does not just harken back to a tumoltous time of civil rights, but brings us back to the present as our Supreme Court of Canada hears argument on the Whatcott case.

Follow the SCC on Twitter as the arguments come down at #SCC or #Whatcott to formulate your own connections between the past and present.