Let's Talk About: The Word "Crime"

What's in a name? A name is a label or a representation of an object, which through usage and custom, is accepted by society and then becomes identified with the object. The name gives us a familiar reference point which we can then use in discussing the object with others. A name becomes the short form of the object. Instead of describing and re-describing in detail the properties of an object when refering to it in conversation, we simply provide the given name and we have instant recognition and understanding.

Etymology is the study of the history of names: from where the word came and at what period in our history the use of the word began. This history of a word is intriguing. Much like a puzzle, the history of a word can reveal a secret past, which may provide an unexpected connection. Thus, the original intent of the name, which may have transformed through time and usage, is retrieved to provide knowledge to those who desire it.

The word "crime" is defined as "an act punishable by law, usually considered an evil act." In a later posting, we will look at differing definitions, when we discuss what is a crime in the context of law generally and criminal law specifically. But for our purposes today, the definition given is the one we will accept. The first known usage of the word "crime" was in the High Middle Ages around 1250. Within this time, the Medieval period, or "Age of Faith," was drawing to an end as Marco Polo explored and returned laden with spices and stories. The Renaissance was not too far behind.

The etymology of "crime" is from the Old French crimne, which came from the Latin crimen meaning accusation and the Latin root cerno meaning "I decide. I give judgment." However, Rabbi Ernest Klein, a Romanian-born Canadian linguist, in his Comprehensive Etymological Dictionary of the English Language, suggests that crimen is actually derived from the phrase, "cry of distress." The Latin was derived from the Ancient Greek word krima, which means a judicial sentence or condemnation.

The history of the word does reveal shades of today`s meaning but embues the word with much more colour than the dictionary meaning we used at the beginning of this posting. Crime also now speaks to the concept of accusation, which in turn speaks to the presumption of innocence as the accused has yet to be found guilty. Or the idea of justice or judgment as in the Latin and Greek root of the word. Finally, crime speaks of a cry of distress, an individual who has lost his or her way in life and looks to society to not condemn or judge but to lend guidance.

In this historical word play, crime has taken on different shades of meaning and caused us to think of the word in different way.

Music, Noise, And Expression

Yesterday evening I attended Impromptu, a collaborative concert showcasing avant-garde or experimental musicians sponsored by New Works Calgary. Although, I had heard the music played on the CJSW's Noise radio program, to actually be present when the musicians compose and play in such a contemporaneous fashion, is truly wonderful. But being the lawyer that I am, I began to wonder about the expressive content of music, and particularly, the expressive content of noise.

The City of Calgary's noise bylaw or Community Standards Bylaw which prohibits continuous and non-continuous annoying or disturbing noise, including music. Whether or not the sound is "objectionable" according to the bylaw, is a question of fact for a Court to determine. Yet, what may be music to one person's ears may be noise to another person. What is objectionable to one may not be objectionable to another. Community standards shift and change over time, over place, and over age and temperament of the listener. 

In terms of Charter protection, section 2(b), freedom of expression, protects the expressive content of an individual. Certainly, in some circumstances, sounds can have expressive content and thereby be worthy of protection. In the Supreme Court of Canada decision in City of Montreal, both the majority and dissenting justice found noise can have an expressive content. However, in the majority's view "while all expressive content is worthy of protection, the method or location of the expression may not be". Thus an amplification of music onto a public street may be protected as long as it does not impede the public's use of the area for passage or communication. In the end the final determinant is whether the "free expression in a given place undermines the values underlying" the Charter right of freedom of expression. To determine this the historical function of the public area must be reviewed as well determining whether or not the expression undermines free "democratic discourse, truth finding, and self-fulfilment." The majority upheld the municipal bylaw as a valid justifiable restriction.

Justice Binnie, writing the dissent, disagreed the bylaw was benign and justified. His comments on expressive content is interesting. Based on the Larousse definition of noise or bruit in French, is not intrinsically a nuisance. Binnie's concern over the wide breadth of the bylaw included the scenario of a McGill student listening to Mozart with the window open or Stephen Hawking amplifying his voice through his voice assistance device. He found the legislation unjustifiable. 

Expressive content as a signifier of Charter rights under s.2(b) in the end is not the full expression of what s.2(b) protects. Shifting society values is ultimately what gives our Charter meaning. But values do shift. Once Beethoven's Fifth Symphony was considered "noise" and even, according to Goethe, "a threat to civilisation." So what is noise today may very well be the music of the future.

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.

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.

 

Bodily Substance Warrants Under s. 487.05

Some criminal law fun!

In my criminal procedure and evidence class at MRU, we discussed warrants to take bodily substances for DNA analysis under s. 487.05 of the Criminal Code. Such samples must be taken in accordance with the investigative procedures as set out in s. 487.06, which include taking samples by the plucking hairs, by the taking of buccal swabs, or by the taking of blood by "pricking the skin surface with a sterile lancet." A peace officer, who "by virtue of training or experience" may be authorized under the warrant to take these samples.

Okay. I was a little concerned with this. Potentially a non-medical person can be authorized to take a sample of blood based on "experience" only? In the words of my teenage daughter: OMG. Calm down you say - under s. 487.06 this procedure is done by "pricking the skin surface with a sterile lancet." Sounds easy doesn't it? Well, take a look at the WHO Guidelines for Drawing Blood and it doesn't look so easy or, quite frankly, so safe. This is a medical procedure and there are possible medical outcomes.

In contrast, take a look at the blood sample warrant authorization for imparied/over 80 offences involving death or bodily harm under s. 256. Such samples must be taken by a qualified medical practitioner "who is satisfied that taking the samples would not endanger the person's life or health." This is what we want! We want medical procedures to be done by qualified people. We want samples to be taken only if the benfits outweigh the harm. Why are we not providing the same protection for taking bodily samples for DNA purposes?

Yes, s. 256 authorizes the taking of blood samples, which is more invasive than a skin prick by lancet. Agreed. But there are still potential health risks whenever blood is taken. Particularly when the person taking the sample may be doing it "by virtue" of experience and not necessarily training. 

Answer? We need some safeguards albeit not the high level of safety mandated by s.256. Otherwise, such authorization may be contrary to Charter rights and values. But I will leave that discussion to you.