Thursday, January 28, 2010

This Is Old City Hall, Day 8

I learned several things about Justice K----- [pictured above] while watching him preside over drug plea court today:
  • He keeps the courtroom humming like a beehive, by scaring the bejesus out of everyone with the misfortune to be there -- Crown, defence, accused, clerks, court police.
  • He doesn't believe in conditional sentences (see below).
  • He doesn't suffer fools.
  • He may have a soft spot for troubled youths.
About conditional sentences, I don't know if I agree with His Honour. He suggests it's hypocritical to sentence an offender to a term in prison and then not to send them to prison. If the crime is one for which a term in jail is warranted, so be it; if not, he either awards an absolute discharge, or imposes a term of probation whereby the accused must be responsible for his own life, not babysat in his home.

Maybe conditional sentences are hypocritical -- but maybe it's just pragmatic to have an intermediate sentencing option when supervised release is too lenient and imprisonment too strict. Who in the justice system is prepared to defend the proposition that jail really leads to rehabilitation? Use of the conditional sentence regime tacitly acknowledges that imprisonment only begets further crime and imprisonment, and that it is therefore in the public's interest that some sentences be served in the comfort of the offender's own home rather than where a single crime might will turn into a life of crime. However, that tacit acknowledgment is what makes the conditional sentence a philosophical danger zone: diverting offenders from prison because prison is too toxic for them is obviously not a viable long-term solution, nor one the public is likely to find to its taste.

This Is Old City Hall, Day 7

As part of Osgoode's Intensive Program in Criminal Law, I'm spending my final term of law school at Old City Hall. Go to the first day.

There was one matter to be dealt with in Courtroom 126 this morning [Wednesday, January 27th]. It went exactly thus:
Crown: "In light of the fact that there is no reasonable prospect of conviction, the Crown requests that the charges be withdrawn."

His Honour: "Any comments, Counsel?"

Defence: "No comments, Your Honour."

His Honour: [Rolls up an information and raps it on the bench in lieu of a gavel.] "The matter is withdrawn. [To the clerk:] Is that it?"

Madam Clerk: "That's it, Your Honour."

His Honour: "Let's go home."

We didn't go home, of course. Instead His Honour recommended I attend another courtroom to "watch justice [or a facsimile thereof] being done". In the other courtroom, a woman was being charged with Impaired. Her counsel was presenting a Charter s. 9 argument in which I, in my boundless wisdom and experience, saw no merit at all.

The accused was slight, with black hair streaked with blonde. She had orange skin that camouflaged her age; she could have been 38 or 48. (I recognize that it's unfair but I can't help but suspect she would have been wearing Lululemon if she were anywhere but before a judge.) She was pulled over after running two red lights. The arresting officer observed that her speech was slurred and she had wine on her lips. The lone observer in the body of the court (besides me) was a man in his late fifties or early sixties. Can you feel the urge to give in to stereotype and judge prematurely?

After counsel had made his submissions, the Crown shambled to the podium. When he started talking, one got the impression that he was shambling then too. He referred to cases but didn't have any materials prepared. Court was adjourned early so that the Crown could get it together. At this point it was 11:00 a.m. so I went in search of His Honour again.

H.H. was on hold with Via Preference for the duration of the morning recess. I thought that was amusing. One doesn't think of judges being subjected to the inconveniences suffered by lesser mortals.

Many other matters were dealt with, none of them of much gravity, though there was one exchange in plea court that I thought stupid enough to record:
His Honour [to the accused, upon sentencing him to a term of probation]: "Anything you'd like to say to the court?"

The accused: "I would request [a less onerous term of probation] because I'm looking for a second job."

His Honour: "No."

The accused: "Okay."

His Honour: "Why did you drink when you were released nine days earlier with a condition [to abstain from the purchase/possession/consumption of alcohol]?"

The accused: "It was a friend's birthday."

His Honour: [Repeats his question, less temperately.]

The accused: "I was forced to drink, against my will."

At this point my notes read: UH-OH, which turned out to be a good prediction.

Finally, there was a matter I will call The Rooming House Incident. A resident of such a facility was charged with uttering threats. According to the police report, he banged on the walls and told one of his fellow residents that he was going to "fuck him up". Complainant and accused were known to each other and had had prior confrontations that had resulted in charges being laid. At court, the accused acknowledged having uttered the threat and was prepared to accept the consequences. He was a small man in his forties. He came to Canada from India in 1985; as a result of the charges against him, he was facing a deportation order. Defence counsel said the accused had some "suspected cognitive impairment" due to long-term alcohol abuse (over more than twenty years).

I found the facts unremarkable until I turned around and saw the complainant, who attended the sentencing. He was wearing a black T-shirt with skeletons, skulls and dollar signs on it. He was, with no exaggeration, at least twice the size and mass of the accused. The little old man pleading guilty before the court could not have "fuck[ed] him up" with four arms, three baseball bats and a gun.

Two additional facts were entered, stupendous enough to warrant bullets of their own:
  1. the argument that prompted the uttering of threats was over the whereabouts of the TV remote; and
  2. the accused was the one who called the police, in order to enlist their aid in getting back said remote.
His Honour must have come to the same conclusion that I did, because he prefaced his judgment with a speech about his obligations in equity as well as in law before entering a discharge that rendered void the pending deportation order.

  • Neck tattoos today: none, but there was a defence lawyer who resembled Noah Wyle if Noah Wyle got lost in Appalachia for three weeks. But unruly facial hair does not a lawyer unmake, and he was a great enunciator, a trait His Honour values highly.
  • Also, one of the clerks had a Padawan rattail [at right].
  • The heating system in Old City Hall possibly dates from 1889 when the building was founded. One wonders if there's a boiler room in the basement full of logs from old growth forests that no longer exist. The hot water radiators sound like biplanes facing off in WWI: they rattle up and up and up until there's a sound like an explosion.
  • At one point during counsel's submissions, the head Crown swept into the courtroom and just stood in the middle of it until counsel faltered and stopped talking. Then she boomed, "Thank you, Counsel" and had all her matters traversed to another court. She was a lesson in command of a room -- she sounded like a judge herself. She'll probably be one in due course.
  • His Honour has the Ontario Reports, 1969-1973, in bound volumes in his office. Why this period only? Maybe when he practised criminal defence he had a lot of cases reported in that time. Maybe he just thinks it was the Golden Age of criminal jurisprudence.

Tuesday, January 26, 2010

This Is Old City Hall, Day 6

When I got to Justice K-----'s office this morning, he was listening to the news on and old fashioned radio. The signal only came in clearly if he kept his hand on it, so he was doubled over in front of it. A news report was saying that the French are instituting a ban on the Muslim headscarf that covers a woman's entire face.

His Honour asked me what I thought of that. I figured he was testing me. I told him that it was in keeping with what little I knew about France's assimilation policies but that I didn't think it would jibe with Canada's immigration philosophy. I tried to call the word 'integration' to mind but failed and instead mumbled something about 'mosaic theory' as if that were a real term of art. As it turned out, our views did not correspond.

"I'm an immigrant," began His Honour. "And my feeling is, this country is doing me a favour." I felt every inch the sheltered, smug, white, liberal Torontonian. But without any sheltered, smug, white, liberal Torontonians, the criminal defence bar would be substantially reduced, wouldn't it?

After that exchange, I spent the morning watching K----- J. preside over a s. 11(b) Charter argument in Impaired court. It was a good fight: the public has a strong interest in seeing drunk driving offences prosecuted, but the delay was egregious -- seven months for the Crown to disclose its standard toxicology report to the defence, with no explanation offered -- and the prejudice to the accused rather extreme.

K----- J. was sharp in court. I assume he's always sharp. This morning he was airdropped into this courtroom because another judge called in sick, but he needed no refresher on the case law governing s. 11(b), and in fact he rebuffed counsel's every attempt to bring cases to his attention. Instead he attacked every position taken by either Crown or defence, like a Velociraptor testing all the fences in Jurassic Park. His judicial philosophy might be that he is doing his job if Crown and defence are eviscerated in equal measure.

Defence counsel took some time to adapt to His Honour's fast-and-dirty approach. The lawyer (whom I recognized as one of the adjunct professors of Trial Advocacy at Osgoode Hall) wanted badly to rely on the cases he had prepared, and it wasn't until after the morning recess that he resigned himself to letting them slide. The Crown had the benefit of seeing the defence raked over the coals first, and so was more prepared to state the facts and his position relative to them. Nevertheless, His Honour darted and jabbed at Mr. Crown until he was turned inside out and could barely keep straight his initial position.

At the end of submissions, K----- J. stated the case back to the parties, off the top of his head, for thirty minutes. He included the parties' respective positions and where they differed, and concluded with a criticism of the delay on the part of the police and Crown. The case was thrown out. Back in the office, we discussed the gravity of throwing out a case of that nature after more than a year of wasting the court's time and the public's money. We discussed the fact that the Crown who appeared in court doubtless hadn't had carriage of the file for more than a week, and very likely had nothing to do with the series of delays that gave rise to the s. 11(b) motion. We discussed the futility of that remedy, which comes as a slap on the wrist of the laggard justice system long after anyone responsible for the mess has lost track of it and moved on to a thousand more pressing files. We discussed what kind of lawyer I ought to be and we concluded that it would surely be a different kind.

  • I really must look into this famous Askov decision everyone is so juiced about.
  • During our discussion I told His Honour that he reminded me of a velociraptor in court. I think he was quite pleased.
  • Neck tattoos today: none. I must have been sitting on the wrong side of the court.

This Is Old City Hall, Day 5

Justice K----- is my principal for the week. Before sending me out into the courthouse, His Honour issues the following directive: "Forget the law. Focus on the people." He assumes I knew the law in the first place.

My assignment for the week: hit as many courts as possible and observe, per K----- J.'s instructions, "how slowly the system works". The first stop in my tour is in Federal sentencing court, where drug matters are resolved. A couple sentences are handed out, but mostly matters are put over, one after the other, until another day. So far His Honour's cynicism is not misplaced. I abandon this court in short order. In another courtroom a motion is being argued for exclusion of evidence under s. 24(2) of the Charter. I get there just in time for an early morning recess, so I move on for the second time. Next door is Domestic court.

Domestic court is a funny bit of Newspeak: it rolls off the tongue better than Domestic Violence court, but it's sure not as descriptive.

My conception of domestic violence is probably coloured by Law & Order. I enter the court expecting to find a swarthy drunk on the stand and a mousy, downcast woman in the front row. Yes, there is a man on the stand, and yes, he could be described as swarthy -- but the woman in the front row is the opposite of mousy or downcast. Her eyes, her posture and the set of her jaw suggest she is carved out of rock. The man's testimony indicates that she is a crack cocaine user and a prostitute. Even so, it takes me twenty minutes before I realize that he is the complainant and she the accused.

The complainant evidently had an arrangement with this woman whereby she shared his home in exchange for payment -- like Pretty Woman but without any attractive people and with more crack cocaine. At some point the money stopped flowing. Words were exchanged. A glass was hurled at the complainant. The basement tenant was alerted. (He testifies next.) Police were summoned.

The complainant wouldn't qualify his relationship with the accused as a sexual one. Defence counsel inquires whether he has ever heard of Bill Clinton. This is what passes for humour around here. The Crown inquires as to the relevance of this comment. It's not really an objection worth making, but I empathize with her: it would be hard to be a young female Crown in a courtroom full of dirty old men telling sub-Jay Leno-calibre jokes.

I don't come back after the noon recess. The wheels of justice are turning well enough here, but maybe in another courtroom they're going in the right direction.

  • Defence counsel in the domestic matter was ancient: 75 if he was a day. Why is this man still practising? Lawyers joke about dropping in the saddle, but is this racket really that bad?
  • Many defence lawyers, especially senior ones, have ponytails. Why on earth? Maybe it's a reaction to the prevailing Crown style of shaved heads. Maybe where the shaved head is the ageing Crown's meagre token of individualism, the ponytail denotes the Toronto defence bar's hippie communal pretensions. There' s a joke to be made here about time stopping in the courts -- but I don't know that there was ever an era when this was an acceptable aesthetic choice for a legal practitioner.
  • Neck tattoos today: 2.
  • Hypothetically: You're arrested for shoplifting at a grocery store. You explain to the court that you are a recovering heroin and cocaine addict, clean for nine years; however, you continue to use marijuana, and this increases your appetite, potentially leading to shoplifting. Is this an aggravating or a mitigating factor?

Saturday, January 23, 2010

New Life Goal

Some day, I will complete the Great Lakes NHL Arena Tour, which I have just invented.
This will complement my only other existing life goal (ACC season tickets), and is probably more attainable.

  • Complete the road trip in 8 days, starting on a Saturday night at Joe Louis Arena, and ending on a Saturday night at the ACC. During the intervening week attend games in Chicago, Columbus, Pittsburgh, and Buffalo. This will require an unlikely confluence of conveniently scheduled home games, cooperating weather, and the ability to take a week off at exactly the right time. But it's possible!
  • The tour may be completed in the reverse order, starting on a Saturday night at the ACC, and ending at Joe Louis Arena.
Varying Difficulty Levels:
  • Eat a hotdog and drink a beer in every arena.
  • Take a photo in front of every arena.
  • Obtain seats no worse than "gold" at the ACC, and the equivalent in the other arenas.
  • Obtain signatures from a player in each game -- six signatures over the course of the Tour.
  • Complete the Tour during the first round of the NHL playoffs.
  • Obtain signatures from at least one player from each team in each game -- twelve signatures over the Course of the Tour.
Statistically Improbable:
  • Complete the Tour during the second round of the NHL playoffs.
  • Only attend games which the home team will win.
  • Be mentioned on Coach's Corner on the final night of the Tour.

Friday, January 22, 2010

This Is Old City Hall, Day 4

As part of Osgoode's Intensive Program in Criminal Law, I'm spending my final term of law school at Old City Hall. Go to the first day.

Yesterday I observed the trial of two individuals for attempted robbery and forcible confinement of a cab driver. It wasn't as thrilling as that sounds; there was a major identification issue, the forcible confinement charge arose from a matter of seconds in which the accused held the cabbie's door shut, and nobody even came close to robbing or getting robbed. The judge whom I was to shadow for the day was likewise underwhelmed by the proceedings, and recommended I go to the courtroom next door to watch the cross-examination of a police officer.

I did so in the afternoon, but fared little better there: the cross-examination had been underway for some time and it was impossible to pick up the thread. The Crown seemed to take issue with the accused officer's account of an arrest, during which the officer allegedly traversed a coffee table in the course of tackling a suspect. I say traversed because much was made of the semantic distinction between jumping, leaping and diving over the coffee table. In whatever manner the officer moved over the coffee table, though, the suspect was tackled to the floor and a nearby TV was knocked over, so it seems likely that the officer didn't move with grace and poise.

A sampling of my handwritten notes, taken while sitting in hallways and courtrooms throughout the day:
  • Who knew trials about violent crimes could be so boring?
  • [a caricature of the first accused]
  • This sucks so hard.
  • Reminder: reapply Polysporin when you get home.
  • I'm a complete idiot for not signing up for a defence lawyer [for my Intensive placement].
  • Why the %$@#! don't I think about taking responsibility for myself and my life?
  • This Crown kind of sucks. She's old enough to know better.
  • DIEU ET MON DROIT [in block letters]
  • Reminder: get/make a floor plan for the courthouse.
  • [an illustration of one stick figure holding another stick figure at gunpoint, robbing him of a sack marked $$$]
  • Reminder: you need socks ...
  • ... and you need to get your house in order [unclear whether this was meant literally or as a reference to my deplorable lifestyle and uncertain future]
  • [an illustration of a six-eyed, horned alien]
  • [an illustration of Scrabble tiles spelling out the F word, with the third tile knocked over, rendering the word completely indecipherable]
  • I should NOT become a police officer. I DON'T LIKE CONFLICT.
  • %$@#! [in block letters]

Your Parents are Responsible for the Demise of "The Tonight Show with Conan O'Brien"

NBC's Tonight Show debacle is extremely frustrating. Everyone joining an "I'm with Coco" group or tweeting about #teamconan is fully aware that the man is funnier on an off day than shambling, dead-eyed Leno is at his best. Amid all of the ink being spilled over the Late Night Wars, there really isn't much of a public dispute taking place regarding the comedic talents of the parties involved. Fact is fact. The best thing that could be said of The Tonight Show with Jay Leno was that sometimes it would be on while Letterman went to commercial, to pass the time. The less said about The Jay Leno Show, the better. (Forget seeing if it makes you laugh--just count how many times a Leno joke even makes you crack a smile.) His most famous bits involve reading newspapers, and talking to random stupid people. Conan's most famous bit just might be the Masturbating Bear. Or maybe the delightfully nonsensical look at the future, "In the Year 2000" (tragically dumbed down to 3000 for the Tonight crowd). Even the house band bears no comparison. Has no one pointed out to Kevin Eubanks that his painfully fake laughter only highlights how devoid of mirth Jay's jokes are? Frankly, he doesn't even look like he likes Jay. He, like the viewer, is just putting in time before he goes to bed every night. Max Weinberg, meanwhile, along with being a famous musician in his own right, can hold his own in the comedy department. La Bamba is a hilarious one-man festival of the bizarre.

Yet Conan undeniably lost this battle.

The problem is that there is a very real silent majority that just doesn't get it. Baby Boomers. They're your parents, and they, not Jay or NBC, are the real villains here. Because they're getting old, and they like the comfort of the familiar. (Some aren't even that old, and some might be funny people in their own right--but they're not part of the Conan generation. And among those for whom actual laughter is an important part of a comedy show, well, they were watching Letterman all along.) Here, "I'm with Coco" and #teamconan are meaningless noise. They are useless preaching to the converted, because the old heathens aren't on the facebooks and all they know about tweets is that CNN thinks they're somehow important.

The Boomers' appreciation of comedy has grown stale, and they're not receptive to any message which might set them straight, 'cause ultimately they don't really care. The world revolves around them. They have the big money. They're the ones buying Cialis and cruise vacations, so they're the ones at whom all the expensive ads are aimed. But they can't get their heads around Conan O'Brien's inherent weirdness, because his jokes aren't lazy and obvious like Leno's, so the ads for mutual fund companies and Cadillacs aren't being seen by enough eyes to warrant the spending. Ratings drop, then ad revenue drops, and then a funny guy loses the job he clearly dreamed of having his whole life.

Sure, NBC probably wishes it could let creative people do funny things all night, but when the money only flows from the mediocrity, what are they to do? The peacock network is a massive corporation, owned by an even more massive corporation that needs to see results, or somewhere down the line people will lose their jobs. There's no time to slowly nurture the network's flagship show back into healthy numbers, as it deserves. Unbearably, but reliably, Leno puts old-person-asses in seats. The man can sell a GE lightbulb. And sometimes to keep your 30 Rocks afloat, you have to suck it up and make a Biggest Loser.

Certainly, NBC and Leno are not devoid of blame. Far from it. Seven months was obviously not enough time for Conan to get into the groove of a show that he could probably have hosted for over a decade. Further, leading in to the news with the dreadful Jay Leno Show was rightfully complained-about by NBC affiliates across the country, and was a solid way to make sure that everybody wandered away at 10:00 to do the dishes and play Scrabble. But it's not like everybody was watching ER back in the old days. The news was still on at 11:00, and the Tonight Show followed. Conan had that format to work with, but the Boomers and their wallets just weren't there any more. Ultimately, your parents' failure to recognize comedic brilliance is to blame for the imminent return of Jay Leno to Tonight.

In some ways, Conan will be better off. Likely finding a new home on Fox in September, expectations will be more in line with his comedic sensibilities. But the viewership numbers still won't be stratospheric, and, as Conan has sadly pointed out throughout the week, he won't be part of one of the most respected institutions in television history. He'll be a sad footnote in that institution's story.

EDIT, 15 April 2010 | More proof that Conan was lost on his own generation: try explaining to your dad why Conan-as-Dick-Van-Dyke-as-Thom-Yorke is funny and cool.

Wednesday, January 20, 2010

This Is Old City Hall, Day 3

As part of Osgoode's Intensive Program in Criminal Law, I'm spending my final term of law school at Old City Hall. Go to the first day.

The judge I was to follow today is ill, so I have the day off to start my seminar on wiretap procedure and finish reading Old City Hall. In the book, the Leafs are on a Stanley Cup run. Who would've guessed: magic realism in a crime novel.

Last night I had a nightmare that my fall-term marks came out and they were horrible: Cs, Ds and one G, which I construed as bad intuitively. In waking life, grades don't much trouble me -- they've been bad for the last four semesters, there's no reason they should improve now -- but evidently they still trouble my unconscious.

Tuesday, January 19, 2010

This Is Old City Hall, Day 2

As part of Osgoode's Intensive Program in Criminal Law, I'm spending my final term of law school at Old City Hall. Below are the events of my second day there. Go to the first day.

Today was a short day but a notable one: I observed my first judicial pretrial discussion. The discussion was in relation to two individuals accused of trafficking narcotics -- my bread and butter! I wasn't privy to the specifics (nor could I share them if I were) -- suffice to say that negligible amounts of narcotic were trafficked on a series of occasions.

Present at the pretrial were two defence lawyers, a federal Crown prosecutor, a police officer, Her Honour and myself. There wasn't room for all of us in the office sitting area, so Her Honour sat on the couch with the professionals and I occupied Her desk. Comments were made about my youthful appearance; this is a common occurrence for me and one I am assured I will relish in years to come. Drunk with the power that emanates from a judge's desk, I paid the jokes no heed.

It struck me during the discussion that the Crown is afforded a great deal, almost a quasi-judicial amount of deference. He delineated the facts, the case's strengths and weaknesses, the backgrounds of the accused and Her Majesty's expectations for sentencing. Presumably his assessments were fair, because defence counsel made no comment for their duration. They seemed more or less happy to let the Fed tell the story.

This is not to say that counsel weren't fearless advocates for their clients: the tone of the discussion was cordial but combative, the respective positions of the parties firm and well-articulated but open to debate. To wit --
DEFENCE COUNSEL: "I know what you're thinking, Your Honour: 'Thank God for conditional sentences', isn't that right?"
HER HONOUR: [sarcastic] "First thing that entered my mind."
FEDERAL CROWN: "... Oddly enough, not mine."
Har, har.

There is an element of social work to the profession of criminal law that is paid little attention by the public. Those embroiled in the justice system have no chance of emerging rehabilitated without the assistance of professionals on both sides of the bar, and those professionals, Crown and defence, take that obligation seriously. Defence counsel was frank -- almost too frank -- about his client's efforts to honour the conditions of his 'release' (under house arrest): "I like all my clients," he said, "but [this one] is frustrating. But he tries."

I was cut loose shortly after the pretrial. I might have spent the free time preparing an essay proposal, or readying my class seminar on wiretaps. Instead I strolled back across the street to Starbucks, where I got a coffee, took up a stool and read Robert Rotenberg's Old City Hall, in view of the building itself. The book rewarded me with a description of the building that might have been penned from the very spot where I was sitting:
The Hall covered a whole city block. Five stories high, it was a massive stone structure, asymmetrical in design, filled with curling cornices, rounded pillars, marble walls, smiling cherubs, overhanging gargoyles, and the big clock tower to the left side of the main entrance, which topped it off like a gigantic misplaced birthday candle. Above the arched front entryway, the words MUNICIPAL BUILDINGS hidden among a swirling band of curlicues and bows, denoted its initial use.

Observations, Day 2
  • Taped to the computer monitor on her desk, Her Honour has an inventory of items she must remember to ferry between home and the courtroom: pen, highlighter, computer, keys, pad, trial book, Code, glasses, BlackBerry (with a reminder to keep it set to vibrate -- it doesn't do to have one's phone go off in court, especially when one is the judge), iPod. The tools of the legal professional's trade. And an iPod.
  • Sometimes I picture the commission of the offences I'm reading about, and wonder whether I could have pulled them off where the accused persons failed. (They've always failed; that's why they're in court.) This happened often when I worked for the Feds in the summer, and even when I read cases in first year Crim, or Evidence, or Crim Pro, and it happens at Old City Hall. I wonder if other students and practitioners do this or if there's something the matter with me.

Monday, January 18, 2010

This Is Old City Hall, Day 1

As one of twenty students admitted to Osgoode's Intensive Program in Criminal Law in spring 2010, I'm spending my final term of law school at the placement of my choice: Old City Hall, one of Ontario's busiest provincial courts. I will spend four days a week there for the next ten weeks, shadowing judges, observing all manner of proceedings, assisting the judiciary where possible, and recording my experience.

Below are the events of my first day. In detail.

8:58 am. At the outset of any new undertaking, I always plan to arrive half an hour early, to get my bearings. Inevitably I fail and today is no exception. I left my house at 8:37 and reached the office of the court clerk 21 minutes later. She directs me to the judges' secretaries office.

9:02 am. A secretary informs me that Justice C------- will arrive at 9:45, so I should feel free to go get some coffee. I comply.

9:15 am. At Starbucks, across the road from Old City Hall, a boozy old man is addressing the baristas: "Did you hear about this Edward Greenspan? He got 'em all off! All of 'em! Edward Greenspan got 'em all off!" He repeats words to this effect all the way out the door. I wonder if he is paid to do this at a coffee shop frequented by court patrons or if he's just a genuine proponent of Team Edward.

10:00 am. Justice C------- collects me from the secretaries' pool and directs me to her office. Like the rest of the courthouse, it is well-appointed and lived-in. There are Renaissance paintings on the walls, but the place of honour above the couch belongs to a more modern piece: a bonfire, orange-on-black, painted by C------- J.'s middle child. During our conversation we discover that we're both graduates of the History and English faculties at Huron University College.

Somewhere in the building, a courtroom is being kept waiting while we become acquainted.

10:32 am. In a large courtroom with bad acoustics: C------- J. is presiding over a sentencing hearing for an individual who has pleaded guilty to possession of child pornography. Out the window you can see the weather beacon on top of the Canada Life Building. Either the temperature or the barometric pressure in the city is going up; who can read that thing.

An officer is giving evidence to the effect that there are six categories of naughty picture:
  1. child pornography;
  2. child nudity;
  3. child other [depicting children not in a state of undress];
  4. adult pornography;
  5. obscenity [the officer giving testimony cites bestiality as an example -- not to make these proceedings more distasteful or anything]; and
  6. other.
All six categories are represented on the accused's hard drive. The officer was thoughtful enough to bring examples of each, seized from the computer of the accused. Her Honour and counsel for the accused are viewing the pictures over the officer's shoulder while he describes their contents in monotone. He doesn't have an enviable job.

These days, possession of child porn carries a mandatory minimum sentence of 45 days' imprisonment. (Whatever one's feelings about mandatory minimums, this one would have been difficult to oppose, politically-speaking.) The Crown is looking for six months, followed by probation.

[This particular Crown prosecutor fits an archetype that I've noted in this courthouse and others: the Maverick. He may represent Her Majesty by day, but he's no government stooge -- he has a goatee and an earring, see? So he's more like a government stooge from 1994.]

The Crown offers a sort of "market" argument to the effect that possession of this kind of material begets its production. I can't help but wonder if this is accurate, given that the accused downloaded all the photos from LimeWire and no money changed hands -- but then, what incentive is there to disseminate this stuff? To paraphrase the Shadow, who knows what logic lurks in the minds of child pornographers?

A more cogent argument for strong denunciation: child pornography creates "cognitive distortion" about norms of sexual behaviour in those who view. The point may be applied to pornography in general: no less scholarly a source than Details Magazine says that the ubiquity of internet porn has turned the bedrooms of North America into dens of bukkake and other terms best left un-Googled.

11:45 am. Morning recess. C------- J. makes calls and consults the annotated Criminal Code. (Just because you've been on the bench for five years doesn't mean you have it memorized. It's comforting that she is so diligent.) Meanwhile I peruse her office reading material -- The Origins of Reasonable Doubt, an examination of the modern legal principle's conception as a theological maxim. It's more interesting than its name suggests.
Did you know: in bygone eras, in jurisdictions where firing squads were employed, one member of the firing squad would be issued a blank bullet. However, none of the squad members knew which of them had the blank. When a shooter pulled the trigger, therefore, he could never be certain whether he had fired a killing shot. In this way the shooters' consciences remained clean but the condemned man got shot just the same.
To understand how that relates to the modern common law concept of reasonable doubt, you'll have to purchase the book.

12:15 am. Defence submissions. Counsel takes care not to minimize the seriousness of the offence to which his client has pleaded. The accused has been under house arrest for perhaps a year already. He has an undiagnosed learning disability and he has been severely depressed. He accepts responsibility for his actions, a "curiosity that got wildly out of hand".

Counsel argues that a computer ban is unduly restrictive "in this day and age" and advocates that severe restrictions on use of the device be imposed instead. C------- J. seems receptive to this submission.

The accused is prohibited from attending parks, pools, community centres and other public places where children might be found, though he has no history of interference or assault.

1:00 pm. Her Honour asks the accused if he would like to make any statement. Having been weeping for the duration of proceedings, he bursts into sobs. He struggles to speak but he's incoherent. One word that emerges is "hospital". Counsel informs the court that his client looks forward to undergoing treatment and getting better.

2:45 pm. Back in the courtroom, awaiting Her Honour, who spent her lunch hour composing her decision. Crown, defence and accused are sitting together awkwardly. The lawyers are reviewing precedents, probably whatever was closest to hand.

I already know the judge's decision, which is strange and something I expect will never be repeated in my career.

2:49 pm. I wonder if the accused will be able to keep it together when his sentence is read. I know I couldn't, whichever way the wind blew.

2:51 pm. A court services officer just came in. He doesn't remove his hat in the courtroom, which distracts me. It takes me some time to figure out he's there to escort the accused out following his sentencing. Police have depressing jobs around here.

3:10 pm. Four months' jail, followed by probation, with stringent provisions regarding contact with children and computers, and entry onto the Sex Offender Registry. The accused is admirably composed. My first day at Old City Hall is over.

Observations, Day 1
  • I spent the day wrestling with how to address C------- J. when in the privacy of her own chambers. Occasionally I caught myself using the familiar "you/your" rather than "Your Honour/Your Honour's", but I rectified the missteps by the end of the day. Notably, Her Honour does not use her own honorific when she answers her phone; she uses her first name.
  • Her Honour is exactly twice my age and has been a judge for five years. If I haven't grown disenchanted and quit nineteen years from now, maybe I'll put my name in.
  • These posts are going to be pretty text-intensive. Pictures are not permitted during court hours.

Sunday, January 10, 2010

Canary in a Coal Mine, or Any Excuse to Cry Foul?

[A response to Airport Security: Trading Liberty for the Illusion of Safety by Rob Evans, Jan. 09, 2010.]

Your Michael Jordan introduction is clever, but it feels like you came up with it first and then looked for an argument to shoehorn it into. You say that North American governments are playing a "similar game" but make no attempt to identify the similarity. Are you the terrorists? Is Michael Jordan the government? So, the government wins if terrorists quit making attempts to blow stuff up and the terrorists win whenever they succeed once? Or is it that the terrorists win if the government stops trying to stop them, and the government wins if they stop even one? What are you even advocating with this paragraph? That governments stop trying to weed out terrorists?

"The gun is visible enough, but what of the white stuff around the body? Is that just thick underwear or a plastic explosive? The gun would have been detected by conventional screening anyway, so what we're gaining here is a big fat nothing."
Your conclusion does not follow from the premise. The gun would be found through less intrusive means. Fine. So we should stop when we find the gun? And if somebody has a plastic explosive, they get a pass because it rather resembles thick torso-underwear to someone with no training on such a system (ie. you)? How is this "a big fat nothing"? The image quite clearly shows a lot more than just a gun, and you seem to be pretending there's nothing else there because it serves your argument to do so.

You've provided no support for the statement that "subjecting millions of our own travelers to these machines does not make us safer". Obviously it is difficult to prove a negative, but it seems fairly evident to me that full body imaging cannot fail to be more effective than mere metal detectors and random pat-downs.

"We have been losing bits of liberty, step by step, each time a terrorist attempts to attack a plane." Maybe so. But what precisely are you advocating with this paragraph? That we blithely assume that once a terrorist tries one method, they will move on? That once a weakness has been exploited, we should ignore it instead of addressing the risk? Fool me once, as they say, shame on you. Fool me twice, shame on me. Certainly it is better to be proactive, but there's no reason not to be reactive as well. Terrorists don't win when they put some people through some minor inconvenience on their way to enjoy the miracle of flight, they win when they blow up those flights.

"Anal cavity searches are coming"? Doubtful. There's no actual violation of the physical person here. It's an image, not a probe. You must realize that slippery-slope arguments are logical fallacies, unless you also believe that gay marriage leads to bestiality and polygamy. Rhetoric about being bent over is merely colourful.

Statistics. Generally inadmissible in the courtroom, as dear Prof. Maveal taught us, and just as useless here. Planes versus cars is apples versus oranges. The difference in the numbers is a reflection of a number of factors, none of which support the argument that we should stop looking for terrorists in airports. If anything, you're now arguing that we should be sacrificing a little more liberty to have our cars crash less often.

We control our cars. We use them all the goddamn time. We use them individually, and when we crash, it is the fault of an individual, not an ideology. In such instances the government can not be said to have failed to protect us. Regardless, governments expend a great deal of money and effort trying to curb crashes. That they occur anyway is not to suggest that we should fear them more than attacks by terrorists, but rather that we should drive carefully.

We don't control planes, and we generally don't use them all that often. They are piloted by strangers, and indeed are a pseudo-governmental service, when you consider their subsidization. When a plane crashes, it may be nothing more than pilot error or mechanical malfunction. These things happen very rarely, as a result of the massive regulatory systems in place governing flights. But, when a terrorist hijacks or blows up a plane, the government has failed to protect us. For this reason, we sacrifice some of our convenience (I won't say liberty here, 'cause I don't define the word so callously as to assume it means "ten extra minutes waiting in a line" or "a picture of me naked, but as an alien"). We cannot "afford to lose a few more planes," because it means a very different thing. A plane crash is a victory for an ideology which sees it as acceptable to blow up a couple hundred innocents for no reason. A car crash means nothing to anyone besides those involved. In short, we have security checkpoints in airports because they are targets. You know this, of course, so the inclusion of the statistics does nothing but obscure the liberty issue.

Afghanistan and Iraq. About security? Partly, I suppose, but that is a gross oversimplification. But I'm not about to start defending those particular endeavours.

I'm not afraid of heights, and I'm not afraid of flying. I love flying, actually. But I have no desire to see anyone blown up just because the government ignored viable security techniques that imposed a minimal inconvenience. Hell, done right it seems like full body scans could actually speed things up. I mean, "done right" is probably a prohibitively big stretch for airlines and governments, but I can dream.

To conclude, terror is not a choice, it is an imposition. And you cannot confuse liberty with convenience. Liberty can never be overvalued, while convenience is not worth the sacrifice of even one life.