On The DLW Decision and The Meaning of Modernity

Despite our common law system, statute law remains a key source of law in Canada. Its importance cannot be underestimated as lawmakers rely on legislation to implement policy on various social and economic issues. In many ways, legislation is reflective of who we are as a society and serves to reinforce our collective values. No other piece of legislation in Canada exemplifies this more than our Criminal Code, RSC 1985, c C-46. Contained in this piece of legislation is conduct we deem as a society to be so abhorrent, so contrary to who we are, that we will punish those who commit these prohibited acts, often through a loss of liberty. Although the concept of codification relieves us from speculating on the substance of criminal behaviour, it carries with it the mystique of interpreting or discerning Parliamentary intent in creating those crimes. As a result, statutory interpretation is often the main issue in criminal cases as judges wrestle with words, meanings, and intentions. This process is vital in criminal law, where a turn of phrase can mean the difference between guilt or innocence. The difficulty lies in dealing with crimes that carry centuries of established meaning, such as murder, assault, and theft. Yet, the crimes so interpreted must remain relevant. In this blog post, I will explore certain aspects of the DLW judgment, 2016 SCC 22, the most recent Supreme Court of Canada decision employing statutory interpretation principles, on the crime of bestiality (section 160 of the Criminal Code). Here, the Court enters into an age old process of interpretation yet does so, seemingly, in the name of modernity. This case highlights the inherent problems in discerning or interpreting value-laden legislation as it then was and then, ultimately, as it needs to be.

Before we delve into DLW, we must set our general legislative expectations. As mentioned earlier, legislation is based upon sound public policy. Seen in this light, legislation should provide a narrative displaying the objectives and goals of the rules contained within their sections. It should provide clarity of purpose with which we can identify. Legislation should be accessible to all, not just in a physical sense, but also intellectually. Moreover, legislation, as a delivery platform, should be flexible and responsive to the societal values it is meant to emulate. However, these expectations seem to dissolve as soon as the ink dries on the paper. In the context of a written document, legislation seems to lose its dynamic quality. Indeed, as suggested by Lord Esher in Sharpe v Wakefield (1888), 22 Q.B.D. 239, at p. 242, “The words of a statute must be construed as they would have been the day after the statute was passed,” meaning that the words have a frozen quality as they encapsulate a moment in time. The key is in knowing what that moment reveals, which is crucial for the proper implementation and application of the legislation.

Although, the courts have entered into the legislative fray since time immemorial, or at least since 1235 when the first Act of the English Parliament was passed (see for example, Statute of Merton, Attorneys in County Court Act, 1235), it is still far from clear how the courts perform this interpretive function. To be sure rules have been fashioned such as the “Plain Meaning Rule,” also known as the “Literal Rule,” or the “Mischief Rule” or even the “Golden Rule.” Just to clarify, that is the other Golden Rule, not the biblical one. In any event, sprinkled liberally between these over-arching rules are specific rules and maxims, usually proposed in Latin, making the whole exercise very structured, formalistic, and confusing. Thankfully, this conundrum was noted by Elmer Driedger, long-time Solicitor for the Attorney-General of Canada and author of the seminal work in the area.  In the Construction of Statutes 2nd ed., Toronto, Butterworths, 1983, at 87, Driedger summed up all of the disparate rules into one sentence:

“Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

Within the year, in Stubart Investments Ltd v The Queen decision, [1984] 1 SCR 536, the Supreme Court of Canada endorsed this “modern rule.” By 1985, the principle was deemed “oft-quoted” in Vachon v Canada Employment and Immigration Commission, [1985] 2 SCR 417 (at para 48). Despite the Court’s quick embracement of the “modern rule” or “modern principles,” decades later, it is still unclear what this rule encompasses and how “modern” it truly is. This topic is thoroughly canvassed in the fascinating article on the development and use of the “modern principle” authored by Stéphane Beaulac and Pierre-André Côté, entitled “Driedger’s “Modern Principle” at the Supreme Court of Canada: Interpretation, Justification, Legitimization” ((2006) 40 R.J.T. 131. In the paper, Beaulac and Côté persuasively argue that the principle is far from modern, even at the time of its reception by the Court. They posit the principle, as articulated by Driedger in 1983, was simply a rough summary of the main statutory principles in use at the time. Certainly by 2006, the principle was far from “modern” having been in use for years. As an aside, some of these principles can be traced to the thirteen rules of Talmudic textual interpretation, particularly rule twelve, which suggests a contextual interpretation. In any event, the Supreme Court of Canada still confers the moniker, “modern,” to the approach (see R v Borowiec, 2016 SCC 11 at para 18). Its modernity, therefore, appears to be in question.

However, in the spirit of Driedger let us first do a little interpretation on the term “modern.” In the DLW case, “modern” appears to mean “new” as opposed to “old.” Looking at the “grammatical and ordinary sense” of the word “modern,” the Oxford Dictionary, the go-to text for the Supreme Court of Canada (CanLii search found 147 SCC cases referencing the Oxford Dictionary as opposed to a paltry 11 cases for Merriam-Webster), the definition is “relating to the present or recent times as opposed to the remote past” or “characterized by or using the most up-to-date techniques, ideas, or equipment.” Indeed, in Justice Abella’s dissent in DLW, she frames the issue as the new against the old with her newer more “modern” interpretation of the crime as opposed to the majority, written by Justice Cromwell, an old hand at statutory interpretation cases, as the purveyor of the old fashioned, decidedly out of sync with today’s realities.

Abella J accomplishes this new/old dichotomy through her deft use of metaphor directed at the majority decision. The opening paragraph of her dissent utilizes agricultural metaphors of abundance (at para 125) describing the “fertile field” of statutory interpretation with the “routine harvest” of “words and intentions” as “planted” by the lawmakers.  This metaphor brings to mind not only quantity but also the longevity of the interpretative technique as she then extends her position that the crime of bestiality must receive a modern interpretation despite the fact it is a “centuries old” crime (at para 126) whose “roots” are “old, deep, and gnarled” (at para 125). Thus an interpretation of the crime, based on tradition as per the majority under Cromwell J, is not a living tree but an ancient inaccessible relic of the past. Cleverly, Abella J’s opening of the issue is an effective foil to Justice Cromwell’s majority where he characterizes bestiality as a “very old” crime in his opening paragraph (at para 1) but one which cannot be made “new” without clear Parliamentary intention and certainly not through judicial intervention. In paragraph 13, Justice Cromwell hands Justice Abella her thematic metaphor by setting out the “root” of the issue as an interplay between common law and statutory intention. A similar technique was used by Justice Karakatsanis, with Justice Abella concurring, in the dissent in the Fearon case, [2014] 3 SCR 621, 2014 SCC 77 (CanLII), wherein Justice Cromwell too authored the majority decision. There, through the deliberate choice of word use, the dissent of Karakatsanis J breathes modernity in stark contrast to Cromwell J’s reliance on traditional legalistic nomenclature (for further discussion on this see, as published on my website, my previous blog entitled A Fresh Look At Fearon: How Language Informs The Law).

In fact, Justice Abella is right: the issue in DLW is very much bound up with the old and the new as the court is faced with the task of defining the meaning of “bestiality” as it relates to a disturbing child sexual abuse case where a family pet was used to molest a child. The “old” or “traditional” view of bestiality, undefined in the Criminal Code but as gleaned through common law, has the requirement for penetration. This definition fails to not only capture the conduct in DLW but also fails, according to Justice Abella’s dissent, on a cultural, social, and public policy level as well. The irony, in the context of interpreting our codified criminal law, is the reliance on the common law conception of the crime. Since its inception in 1892, the Criminal Code has been the only source, with one limited exception, for identifying which conduct should be considered criminal. If conduct is not proscribed in our Code as a crime, then it is not one. In other words, the common law, or those unwritten rules which have developed over time, cannot create a crime. The only exception being the common law offence of contempt of court pursuant to s. 9 of the Criminal Code. Otherwise, only our Parliament under s. 91(27) of the Constitution Act, 1867 has the authority to create criminal law. Nevertheless, the common law is not ignored in the interpretative process. For the majority, the common law remains unchanged by codification and therefore can be equated with Parliamentary intention. To go any further, in the view of the majority, the courts would be creating a “new” crime, which is not within the judicial function. Conversely, for Justice Abella, the common law conception of bestiality reinforces the present need to move beyond it.

In this sense “modern” can also denote more than a chronological time. It can also, according to the Oxford Dictionary, refer to a “current or recent style or trend in art, architecture, or other cultural activity marked by a significant departure from traditional styles and values.” In this definition, looking at legislation as a “cultural activity” in the broadest sense, Justice Abella’s reading of the term proposes a departure from the traditional “modern principles” through the lens of current societal interests as reflected in the present policy decisions behind the creation of crimes. However, in the realm of traditional statutory interpretation, although Parliamentary intention -through the scheme and objectives of the legislation- lends context to the statutory interpretation process, such context does not necessarily include a deep dive into the policy behind the legislation. Certainly, Driedger’s principles do not directly make reference to it. This lack of clarity, according to Beaulac and Côté in their article, has resulted in uneven judicial treatment of policy in statutory interpretation. For instance, in Canadian Broadcasting Corp v SODRAC 2003 Inc, [2015] 3 SCR 615, at paragraph 55 the majority decision written by Justice Rothstein (Cromwell J, among others, concurring) effectively cautions against the dissent’s use of policy considerations in textual interpretation. In that case, Justice Abella, yet again, writes the main dissenting position. The DLW decision, therefore, is just another example of this interpretive tension. However, considering traditional statutory interpretation in discerning Parliamentary intention was reluctant to go beyond the four corners of the document, the now ubiquitous use of Hansard to elucidate on such intention shows how far the court has and can move from tradition towards modernity. This will definitely be a continuing dialogue within the court to watch for in future cases.

So what of the modernity of the principle in use in the DLW case? It has already been established that this principle has been in use for years and, according to Beaulac and Cote, may even be a mere reiteration of what had been in use prior to 1983. However, as Beaulac and Cote also recognize, Driedger’s principle is both a “method of interpretation” and a “framework for justification.” It is that dual nature, which provides an inherent flexibility to the principle, permitting it to discern or interpret even the most profound words found in our rules of law. Its application, as seen through the discourse in the DLW case, cannot be confined by the four corners of a piece of legislation but must permit a deeper analysis involving societal values and purpose to remain meaningful. In short, it requires, a touch of modernity.

This blog is also posted on Ablawg website: www.ablawg.ca



Episode 45 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 50 Assisting the Enemy and Failing to Prevent Treason

Section 50 continues our discussion of prohibited acts under the Part relating to offences against the public order. Section 50 contains two separate offences: assisting an enemy of Canada to leave the country without consent of the Crown and knowingly failing to advise a peace officer or a justice of the peace of an imminent act of treason. The full section reads as follows:

50(1) Every one commits an offence who

            (a) incites or wilfully assists a subject of

                        (i) a state that is at war with Canada, or

(ii) a state against whose forces Canadian Forces are engaged in hostilities, whether or not a state of war exists between Canada and the state whose forces they are,

to leave Canada without the consent of the Crown, unless the accused establishes that assistance to the state referred to in subparagraph (i) or the forces of the state referred to in subparagraph (ii), as the case may be, was not intended thereby; or

(b) knowing that a person is about to commit high treason or treason does not, with all reasonable dispatch, inform a justice of the peace or other peace officer thereof or make other reasonable efforts to prevent that person from committing high treason or treason.

These offences are indictable and pursuant to subsection 2 of the section, the maximum punishment is fourteen years incarceration. As is evident from the wording of the section, these offences are closely aligned to treason and treasonable acts. Indeed, the offence of failing to inform on a person about to commit treason is essentially an offence of being an accessory or party to the treason, either before the fact or after. Originally, this section in the 1892 Criminal Code was worded to that effect. The change came in the 1915 amendments, most likely as a result of World War One, when the offence of assisting an “alien enemy” was added immediately after the offence of accessory section. In 1927, the two offences were combined under one section. Finally, in the 1953-54 amendments to the Code, the specific reference to accessory was deleted and the section was re-enacted as it stands today.

Needless to say, I have been unable to find any reported decisions on this section other than a reference to the duty to report under s. 50(1)(b). In the 1990 Dersch case, the BCCA considered the seizure of blood samples in a case of suspected impaired driving where the accused was unconscious when the samples were taken for medical purposes. The issue of confidentiality of medical information was considered with the acknowledgement that such confidentiality was subject to exceptional circumstances such as a statutory duty to report. Section 50(1)(b) was cited as an example of such an exceptional situation.

The mens rea requirements for this section is of interest. It could be argued that both offences under this section require a high level of mens rea. In s. 50(1)(a) the use of the word “wilfully” suggests the requirement for a high level of subjective liability, which does not include recklessness. However, the term “willfully,” does not necessarily denote a high level of subjective mens rea as per the 1979 Ontario Court of Appeal case of Buzzanga and Durocher. The contra-argument would rely on the context of this offence, including its connection to treason and the severe punishment attached to conviction, as support for a high level of mens rea. But, s. 50(1)(a) reverses the onus of proof onto the accused by requiring the defence to “establish” that the assistance rendered was not intended. This reverse onus would certainly be subject to a Charter argument under s. 7 and s. 11(d). The mens rea requirement for s. 50(1)(b) is easier to discern as it requires the accused to have knowledge of the expected treason, which clearly requires proof of a high level of subjective liability by the Crown.

Although this section has been historically underused, considering the rise in alleged acts of terrorism, there is a possibility the section could be used in the future. There could be an argument that members of certain terrorist groups are in fact “at war” with Canada and a further argument that these groups in some ways constitute a “state” for purposes of the section. In fact, some of these groups do identify as such. However, in light of new legislation, both within the Code and through other federal statutes, relating to this area, it is more likely the government will prefer to lay charges under this newer legislation, which provides a broader basis for conviction. Probably the best indication of the viability of this section is whether or not it remains in the Criminal Code, in its present form, after the much anticipated government review of the Criminal Code.


The Subjective/Objective Debate Explained

Over the past year, I have detected a theme in the criminal cases decided by the Supreme Court of Canada: is the criminal law objectively or subjectively based? This is a crucial yet traditional argument touching upon almost every aspect of a criminal charge, including the mental element or mens rea for a crime and criminal law defences. In other words, this issue or debate, impacts all areas of substantive criminal law and therefore is seminal to our understanding of the law and the appropriate and fair application of the law.

As punishment is the ultimate outcome of a finding of guilt in a criminal case, the standard of assessing the accused’s behaviour is of vital importance. Indeed, it is at the core of the presumption of innocence as it provides the tools by which a trier of fact, be it judge or jury, decides whether the prosecutor has proven the case beyond a reasonable doubt.

As discussed in a previous posting, the standard of assessment can make all the difference between a finding of guilt and a finding of innocence. The subjective standard requires the prosecutor to prove, beyond a reasonable doubt, that this accused intended his or her actions while the objective standard requires the prosecutor to prove, beyond a reasonable doubt, that a reasonable person would have not acted as the accused did in the circumstances of the case. By using a standard of reasonableness as opposed to the particular accused’s awareness, the objective liability is a lower standard and therefore easier for the prosecutor to prove. Yet, objective liability crimes, such as manslaughter, carry the maximum sentence of punishment of life imprisonment. The objective standard is harsh and can result in a conviction of a person, who due to personal frailties and inabilities, could never come up to the standard of a reasonable person. These individuals may be viewed as morally innocent as they do not have an intention to commit the prohibited act. In criminal law we justify this conviction by applying the principle of the utilitarian concept of the “greater good,” which emphasizes the “commonweal” and the importance of preventing societal harm. However by doing so, we ignore the societal interest in preventing the punishment of the morally innocent or those who are, to put it bluntly, “substandard” individuals.

The issue of subjective/objective mens rea came to the foreground after the Charter of Rights and Freedoms was implemented. Section 7 of the Charter requires that no one is to face a loss of liberty except in accordance with the principles of fundamental justice. Harkening back to the presumption of innocence, section 7 seemed to require a conviction based on subjective mens rea or individual awareness of the risk of his or her conduct. In a series of cases in the late 1980s and the 1990s, the Supreme Court of Canada agreed, yet disagreed. The Court agreed certain traditional crimes, such as murder and theft, which attracted great social stigma upon conviction (one is branded as a murderer or a thief), required subjective liability. However, other crimes, particularly those requiring a duty of care such as in the licensed activities of driving, need only require objective liability.

Although, the court arrived at a “modified” objective standard in a split decision in Hundal, the end result was far from a true modification. Unlike Justice Lamer’s dissent position, which called for an allowance for personal characteristics in the objective assessment, the majority preferred to “soften” the harshness of the objective standard by requiring the trier of fact to determine liability “contextually” in the circumstances of the particular facts of the case. Instead of taking heed to the specifics of the individual, the person whose liberty interests were at issue, the court preferred to focus on a construct of reality as revealed by the facts of the case. Justice Lamer’s stance, interestingly and importantly for my analysis, was supported by the now Chief Justice McLachlin.   At the end of the 1990s, it was clear that not only was the objective standard here to stay, it had reached constitutional status. Thus, the standardization of crime came into being.

This penchant for objectiveness also began to permeate the defences available to the accused. Certainly, the assessment of defences on a reasonable or objective standard was not new as seen in the assessment of the common law defences of justifications (self-defence) and excuses (duress and necessity). However, the objective assessment was always tempered with a subjective inquiry to ensure that this accused’s actions in face of a subjectively perceived threat were taken into account. However, I would argue that with the passing of the new defence of the person section in the Criminal Code, the objective requirement is forefront and again, the subjective assessment is left to a factual analysis, devoid of any personal viewpoints. See a previous blog I have done on this very issue. As argued by George Fletcher in an essay on the defences, The Individualization of Excusing Conditions, by turning the focus away from the accused, we are imposing an artificiality into the criminal law process wherein we sacrifice the individual in favour of the rule of law. Thus, we forget that defences, such as excuses, are “an expression of compassion for one of our kind caught in a maelstrom of circumstance.”

In the next posting, I will review the past year of SCC cases on the objective/subjective debate to determine if the Supreme Court of Canada has gone too far into the objective territory.


Criminal Law and the Science of Prediction

It was a devastating earthquake on many levels: loss of life as over three hundred people died, loss of property as buildings crumbled, and loss of history as an ancient medieval fortress town came tumbling down. All it took was seconds as the earth shook on April 6,2009 in the tiny hilltop village of L’Aquila, Italy. Yet, behind the disaster were years of earthquake readiness and scientific predictions. Behind the devastation was months of tremors; warning signs that something was not quite right. Yet, disasters happen and this one certainly did.

But was there someone to blame? The government thought so when they charged six scientists and one government official with manslaughter. Finally, after a lengthy trial, on October 22, 2012, Judge Marco Billi found them guilty of manslaughter and sentenced them to six years imprisonment. Those convicted included the head of the Serious Risks Commission, the Director of the National Earthquake Centre, and a physicist. The prosecutor built a case of mismanagement, inaccuracy, and the withholding of crucial information, which could have saved lives. The defence emphasized the unpredictability of earthquake prediction and the “chill effect” such a verdict would bring. Indeed after the verdict, a number of Italian scientists quit government posts as scientists across the globe warned of the harmful effects the verdict would have on future research efforts.

There are clearly two sides to the issue but, when looked at more closely, the two sides are not in opposition. The prosecutor is correct in characterizing erroneous or even untimely information as an act or omission, which can and should ground a criminal charge. In Canada, manslaughter requires an underlying unlawful act, which can be viewed as objectively dangerous in nature, which then causes the death of a human being.  Here, the allegation the scientists knowingly mislead the people of L’Aquila, may be a basis for such a manslaughter charge.

However, a mere failure to accurately predict a major disaster is not, in itself, a basis for a manslaughter charge. If it were, the defence’s concern that such prosecution would curtail scientific innovation would be correct. Such a prosecution would be the antithesis of the scientific method. A scientific hypothesis must be first tested before accepted. If the experiment does not produce the results expected, then the hypothesis is modified: such trial and error is needed to produce a final result. Without the ability to make mistakes with impunity, many medical treatments would not be developed.

There is also the difficulty with predictions, whether under the rubric of science or not as seen by the successes and failures of polls and the pollsters who interpret them. As Nate Silver, predictor extraordinaire, explains in his new book "The Signal and the Noise," although some outcomes are predictable if we crunch enough numbers and gather enough data, some, like earthquake prediction, is not possible at this time. How then can we expect a standard of behaviour in an area that is impossibly non-standard?

There is also, a “half-way” opinion between the two: that certain failures or breaches of rules should stay in the regulatory arena and sanctioning should be through the controlling regulatory scheme as opposed to the criminal law.

All of the above is, of course based, on the facts and the level of liability would be commensurate with those facts. In the Italian case, if the findings of the trial Judge were as submitted by the prosecutor, then not unlike the Walkerton, Ontario tainted water incident, the criminal law is properly engaged. However this case is viewed the decision has caused much debate. To sample the various viewpoints, read this, this, this, and this. To read more about public disasters that attract the intervention of criminal law, please read my posting from January 15, 2012 on Public Disasters and the Criminal Law and my posting from February 25, 2012 entitled Safety First: Laboratory Safety and the Criminal Code.



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.

Thirty Day Review

Under s. 525 of the Criminal Code, there is provision for an automatic bail review for those accused who have been detained in custody pending trial. If the matter is a more serious indictable offence, the review occurs within ninety days. If it is a less serious summary conviction matter, the review is within thirty days.

This review acts as a procedural safeguard by keeping track of those in custody. It is also an important aspect of the presumption of innocence as the judge determines whether the further restriction of liberty of those merely accused of a crime is justified. Additionally, the review reinforces the Charter right to reasonable bail.

Borrowing the nomenclature of the Criminal Code, but not the analogy, this is ideablawg's thirty day review. Ideablawg has been in operation since October 10 and the weekend postings will offer updates on the issues discussed. As part of this thirty day review, I invite you to send me an email with your favourite post or even with ideas for future posts. As the creative thinker Steven Johnson said:

We are often better served by connecting ideas than we are by protecting them... Environments that build walls around good ideas tend to be less innovative in the long run than more open-ended environments. Good ideas may not want to be free, but they want to connect, fuse, and recombine... They want to complete each other as much as they want to compete.

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.