bob tarantino

"vitriol, anger and ad hominem sentiment"

Everybody's a critic...

Neil Boyd and I debate the morality and practicality of the faint hope clause over at The Mark.  Mr. Boyd is, shall we say, something less than a fan of your intrepid correspondent.

Don't Call It a Comeback

JJ McCullogh and I had a long discussion about the Supreme Court of Canada, judging and politics - read it here.

Neil Boyd wrote something at The Mark about the elimination of the faint hope clause - something which I felt merited a response, a response which the good folks at The Mark published here.

"One man's debauchery..."

Imagine a really bad, and really serious, version of Footloose – but instead of Kevin Bacon and his pals triumphing over the closed minds of small-town authoritarians, it involves a decades-long campaign using the resources of the federal government to suppress cultural activities, including throwing people in jail for up to a month.

That was one of the passages which didn't make the cut in a new op-ed of mine published in today's National Post, but I think it provides a decent precis of the piece for purposes of this post.  Here, as well, is the original version of the concluding paragraph - I think the bolded portion is important:

Are you a conservative sick of hearing about what has been done to our aboriginal communities?  Fine.  But in addition to forgoing the inherent value of learning more about our national history, in addition to missing the chance to gain a deeper understanding of our fellow citizens and develop common ground for the pursuit of further solidarity, think of what else is being overlooked.  In a political era which promises an increasingly active, robust and interventionist government, our past provides us with excellent examples of the dangers inherent in such an approach.  We had a government so hell-bent on molding its subjects to its will and its view of what was “best” for them that it literally threw them in jail because they danced.  In a search for stories about the peril of overweening government, one could certainly do worse.

"some skepticism"

If you're looking for a decent explanation of why the newspaper industry is in such bad shape, you could do much worse than reading this lengthy piece in Maclean's about the Globe and Mail - it is an account of a group of people with an astoundingly solipsistic approach to their task, nattering on (and on and on) about "platforms" and "real change" and "brands" and "affluent demographics".  Then, near the end, you get a single anecdote, a perfect encapsulation of why so many people are unwilling to pay a single cent for the product, of why so many are so very deeply cynical about and contemptuous of the ability of the news media to perform its most basic roles:

Last week, a senior official in the PMO marvelled that a Globe reporter called to check a fact, noting: “That has never happened before.”

Great Moments in Canadian Sentencing 07.09.09

Another data point for assessment of the Greenspan-Gardner Hypothesis:

A three-time killer is facing not only a lengthy prison term [sic - ed.], but an order that will ensure authorities keep a close eye on him for a decade after his release.

... he was sentenced Thursday to a further 11 years in prison for his third manslaughter conviction - a penalty jointly recommended by the Crown and defence.

...Raphael stabbed Cadreau four times in the chest and twice in the back. The lethal wound was to the heart.

... Cadreau's death came just six months after Raphael had walked out of court a free man after receiving time served for his second manslaughter. One of two men charged in the crime, he pleaded guilty for his role in the death of a 33-year-old Regina man who was beaten with a beach umbrella. Because Raphael had already spent three years on remand, he was set free after the June 18, 2005, sentencing.

Twenty years earlier, Raphael was sentenced to four years for his first manslaughter. He had stabbed his victim in a bar fight in Edmonton.

It is just so strange how this guy's knives and, er, beach umbrellas keep slipping and hitting other people, innit?

At least (whatever marginal comfort that provides) this one is getting appealed (here):

Bird, 21, was sentenced to 12 years after being convicted of manslaughter, aggravated sexual assault and kidnapping for her role in the killing on April 3, 2005.  Ross found Bird knew of the plan to kidnap and kill a victim, had helped carry out the kidnapping, was armed, had hit Nina with a wrench and had held Nina’s hands down while she was being raped.

(h/t Dawg)

Great Moments in Canadian Sentencing 07.07.09

Maybe when he gets convicted for an eighth time he'll actually be punished?

"The Parliamentary intent is to address ... serious violent offences that involve maximum penalties of 10 years or more and are indictable," Brown ruled as she sentenced Francisco Amaya to nine months house arrest and two years probation.

Amaya, who has prior convictions for seven similar incidents, grabbed a stranger's buttocks inside a grocery store on in February of last year.

Read the story and you'll learn that the judge didn't like the express wording of the statute and decided to divine legislative intent by references to what the Minister of Justice said in some press conferences (presumably - all we know is "Brown said the wording flies in the face of comments made by federal Justice Minister Rob Nicholson when changes to conditional sentence legislation were introduced" - in any event, regardless of when and where the comments were made that's a fairly radical innovation in statutory interpretation).  What is it with judges in this country just willfully ignoring the wording of laws they don't like?

"a bit of a joke"

The execrable Jeffrey Simpson demonstrates again why his paper is the worst in Canada:

Similarly, the ending of “faint hope” clause appeals for murderers and the like is eyewash, since only a handful of such appeals are made every year, and they are invariably turned down.

It's astounding to see a single sentence be so wrong from start to finish.  The "faint hope" clause is Section 745.6 of the Criminal Code of Canada.  It does not apply to "murderers and the like" - it only applies to murderers (well, and those convicted of high treason - of which there have been, so far as I know, two in Canadian history).  The notion that "faint hope" clause appeals are "invariably turned down" is further evidence that Simpson is either a liar, incapable of performing simple mathematical operations or singularly uninformed on the topic about which he is writing.  National Parole Board statistics (see the answer to item 15 here) show that, as of April 30, 2009, of the 174 applications made for "faint hope" early release, early parole was granted in 131 cases.  That's a seventy-five percent (75%) success rate.  How Simpson (and his editors) manage to translate that into such applications being "invariably turned down" is testament to the raw stupidity which informs so much op-ed writing.  Simpson also manages to avoid engaging the question of why the families of murder victims should be put through the agony of the "faint hope" process despite the fact that the criminal has already been convicted and sentenced to life imprisonment.  But such ripples on the pond of serenity don't much trouble the Olympian heights (or is it Stygian depths?) of the scribes at the Globe and Mail.

Most brilliant of all, though, is Simpson's dismissal of proposals like the Conservative's recently announced crime policies because "[a]s almost every criminologist in Canada would attest, the Conservatives' crime policies are mostly illusory".  In other words, bereft of any actual arguments that he himself could wield, Simpson relies on the authority of the technocrats who are in large part responsible for the trend of our violent crime rate looking like this:

Great Moments in Canadian Sentencing 06.25.09

So, let's say, f'rinstance, that tomorrow night you decide, completely out of the blue, to get on the subway and start, stay with me here, randomly stabbing another passenger, until he dies.  What do you think the courts will do to you?  I'm willing to bet you don't think they're going to sentence you to six years in jail:

Ontario Superior Court Justice Eugene Ewaschuk called the slaying a random, unprovoked attack on an unarmed stranger "peacefully riding a TTC subway train, minding his own business."

But in sentencing John Paul Vallon to 10 years – less four years and four months for pre-trial credit – the judge noted that he has no criminal record and a good work history.

Right.  He didn't have a criminal record, but oddly now he does - perhaps the latter fact should trump the former?  Or am I just being wacky again?

I like this part:

In the early hours of April 13, 2007, Vallon, then 26, cut and stabbed Brown more than 14 times as they rode an almost empty eastbound subway car. He exited at Victoria Park station, leaving the 21-year-old victim bleeding on the floor of the subway car.

Brown suffered a fractured skull and breastbone in the attack. But it was a cut to his left thigh that proved fatal, causing him to bleed to death.

The judge blamed Vallon's "stupidity" in carrying a knife. "That's what brought it all on. He got the knife and he was looking for trouble."

Ah.  "Stupidity".  It was merely "stupidity" which caused him to, I don't know - accidentally?, stab someone "more than 14 times".  Not maliciousness, not depravity, nothing so verboten as simply being evil - just "stupidity".  What were the immortal words of Eddie Greenspan?

I am frequently told Canada is soft on crime. I think that is a myth.

Canada is tougher on crime than most people believe, and getting tougher by the day.

Indeed.

"political grandstanding time again"

Eddie Greenspan has taken another opportunity to offer up a hodgepodge of terrible arguments and fatuous reasoning, this time in support of... being more lenient on criminals.  But then you probably could have guessed that last part.

Greenspan is flummoxed by the government's plan to limit the circumstances under which judges can hand out conditional sentences (known in the real world as "house arrest", although even that is a misnomer, because people generally aren't actually restricted to their residence - they can leave to attend work or school). 

As we've seen before, one of Greenspan's stylistic quirks is argument by misdirection: he simply mischaracterizes the point he's arguing against in order to make his own argument appear stronger.  Honesty and good faith are the first requirements for a good debate, and Greenspan elects not to treat with either.  Here's Greenspan on the government's proposal [emphasis added]:

This season's version is Justice Minister Rob Nicholson's proposed legislation that would terminate the use of conditional sentences in many cases.

... The Conservatives' proposal would remove sentencing judges' discretion to impose a conditional sentence, even though the judge -- not Parliament -- is in the best position to determine the proper sentence on a case by case basis.

Those are just flat-out lies (the second more flagrant than the first): the government's proposal ends conditional sentencing for a limited selection of serious crimes: crimes that the Criminal Code prescribes a maximum punishment of 14 years, or crimes for which the maximum punishment is 10 years and involves bodily harm or the use of a weapon.  As an example, the list would include crimes "such as theft over $5,000, auto theft (proposed by Bill C-26 currently before Parliament), breaking and entering and arson are included on the list of indictable offences that will be ineligible for a conditional sentence."  It's telling that Greenspan frames his argument in the abstract, instead of telling us why he thinks people convicted of aggravated assault, or assault causing bodily harm or arson should be able to hang out at home as "punishment".

Let's turn to Greenspan's positive arguments in favour of conditional sentencing.

In fact, a conditional sentence may be as onerous as, or perhaps even more onerous than a jail term, particularly where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.

That's the sort of statement that could only make sense to someone in the blind thrall of ideology.  Getting to hang out at home ("under conditions") is tough!  But let's even accept it as correct - let's say that hanging out at home really is "even more onerous than a jail term".  Can we at least now admit, if being in your own home and going to work and school is rougher than being in prison, that maybe our prisons have become a little more soft, a little more thug-huggy, a little more cushy, than they ought otherwise be? No? Oh. That's a surprise.  Because the little bit of jiu jitsu that Greenspan attempts is all part of the rhetorical stupidity that goes on in criminal justice thinking: prison is just so awful and inhumane and degrading that we should never send anyone there, except that "keeping" them "at home" under conditional sentencing is potentially even worse, and, suddenly, then, you're at the point where both punishing someone (by putting them in jail) is inhumane and not punishing someone (by letting them hang out at home) is (even more) inhumane, and so, really, why not just drop the whole "punishment" thing and we'll just have them write essays expressing how sorry they are, except if they don't want to then they don't have to?

How is it possible for a conditional sentence to be more onerous than being confined to prison?  It's not, but it's the kind of delusion to which one needs to subscribe in order for most things in the Canadian criminal justice system to make sense.  We keep being told that the criminal justice system in Canada is just one long nightmare of punishment and pain, and yet now we find out that it's actually not so bad, being sent home (well, when you're not busy not being home) is even worse.  And it is worth recalling that what Greenspan is arguing in favour of is conditional sentencing for violent criminals.  We're not talking about people who have stolen a comic book, but people who have committed aggravated assaults and burned down people's homes.  Which alludes to the matter at the heart of it all, and which, of course, Greenspan conveniently ignores: society's just entitlement in punishing, denouncing and exacting retribution on those who commit crime.  Like most of the commentariat when talking about sentencing in Canada, Greenspan prefers to frame the issue in purely instrumental terms: if Criminal A gets a conditional sentence and never commits another crime, then the system has "worked" - which overlooks the fact that Criminal A has never received his desert for the original crime he committed.  Discussions led by the likes of Greenspan have sidelined the issue of what people, particularly violent criminals, deserve when being sentenced.  Paul Tuns did a nice job of articulating the point a few weeks back:

People do not -- or at least should not -- want tougher sentences because they deter crime or otherwise affect the crime rate. They want tougher sentences because criminals should pay a price for their law-breaking, especially for violent crimes. The popular saying among regular folks who don't read editorials in the large dailies is "you do the crime, you do the time." That isn't incarcerating Paul to stop Peter from robbing a store or beating up someone on the street. It means putting Paul behind bars because that is what Paul deserves. It's called just desserts. That is why the crime rate is not a relevant consideration to what a just punishment is; there is no correlation between how many crimes are committed and what a criminal deserves. To take the Ottawa Citizen argument to an extreme, let's say there was zero crime in Canada and out of the blue a person kills his neighbour. Would that killer deserve just a few days in jail? No, that is ludicrous -- he would still deserve a long time in jail (or death) because that is what murderers deserve.

Indeed.  I harp on this point a lot, but only because too many commentators on the matter insist on ignoring it: deterrence is simply one of the reasons for which we punish.

But, of all the pathetic arguments in favour of conditional sentencing, the "it's just so hard on the criminals!" line isn't even the worst one.  This one is:

To the contrary, it is known that offenders who serve their sentences without prison have a much better chance of rehabilitation and reintegration into society.

Read that again.  Slowly.  Okay, read it again.  Has your brain turned to mush yet?  It should.  You know why "offenders who serve their sentences without prison have a much better chance of rehabilitation and reintegration into society"?  Because they've never been separated from society.  There's nothing for the them to reintegrate into - they've been integrated all along.  But that, folks, is the best argument which the pro-lenient sentencing side has.

Next, Greenspan offers up this bit:

Concerns about releasing offenders into society are overblown and exaggerated. There is no denying that some offenders under conditional sentences have committed crimes. But an offender on a conditional sentence is no more likely to re-offend than someone who has served his or her time in jail. To the contrary, it is known that offenders who serve their sentences without prison have a much better chance of rehabilitation and reintegration into society.

Odd.  Nobody has produced any studies which demonstrate what Greenspan is asserting.  In 2006, the Canadian Criminal Justice Association, in its submission to Parliament arguing in favour of increasing the use of conditional sentences, stated "To date, there is no known recidivism data available to evaluate the impact of conditional sentencing."  Nothing that I've been able to find subsequently indicates anything to the contrary.  So, where is Greenspan getting his information from, such that he is able to make those definitive statements quoted?

And here, evidently realizing that he doesn't have any actual arguments to wield, he falls back on a bit of sophistry which amounts to effective arguing in the courtroom, but elsewhere is regarded as feeble.  I'll call it the "but Billy said it" form of reasoning.  When losing a debate, the last refuge of incompetence is not patriotism, but relying on external assertion - "but Billy said it!".  In legal reasoning, because of its institutional nature, arguing by reference to authority is considered not just acceptable, but the most effective form of argument - it's actually acceptable in legal argumentation to say "but these guys over there said this, therefore this is correct".  It's usually gussied up as an appeal to precedent, in the form "the Supreme Court of Canada said X, therefore X is correct and the law of the land".  It's a puerile form of argument, but within the confines of the courtroom, and within the four corners of a judgment, it's necessary and understandable.  As a form of reasoning absent those particular circumstances, it's nonsensical.  Rationality requires examining the substance of the argument, not its source.  But that's all Greenspan has, so he starts waving his hands:

Because I am a criminal defence lawyer, people will think I'm just trying to protect my clients. If you don't want to hear it from me, then at least listen to the Supreme Court of Canada, which has repeatedly upheld the use of conditional sentences and explained their value: "Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence."

It is too simplistic to dismiss conditional sentences as getting off easy. Again, the Supreme Court has said it best: "The stigma of a conditional sentence with house arrest should not be underestimated. Living in the community under strict conditions where fellow residents are well aware of the offender's criminal misconduct can provide ample denunciation in many cases. In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison."

Right.  Shorter Eddie Greenspan: not only am I soft on crime - so is the Supreme Court of Canada!  But then we knew that already.

But, fine.  If we're just going to accept, like babies being fed pabulum, the words of the Supreme Court of Canada about conditional sentencing, we should at least take time to look at everything they've said about it.

The quotes which Greenspan provides are taken from a case called R v Proulx.  Let's see what else the Court in Proulx had to say about conditional sentences:

Although a conditional sentence is by statutory definition a sentence of imprisonment, this Court, in R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 21, recognized that there "is a very significant difference between being behind bars and functioning within society while on conditional release". See also Cunningham v. Canada, [1993] 2 S.C.R. 143, at p. 150, per McLachlin J. These comments are equally applicable to the conditional sentence. Indeed, offenders serving a conditional sentence in the community are only partially deprived of their freedom. Even if their liberty is restricted by the conditions attached to their sentence, they are not confined to an institution and they can continue to attend to their normal employment or educational endeavours. They are not deprived of their private life to the same extent. Nor are they subject to a regimented schedule or an institutional diet.

Heck, since we're playing this fun game, howzabout we take a look at who precisely wrote those words?  Let's, in other words, since we're on the merry-go-round of "but Billy said it!", see what Billy actually said.  So - who was the author of the judgment in Proulx? Ah, former Chief Justice Lamer, one of the softest of the soft touches when it came to criminals.  Just for fun, let's take a look at what Lamer was saying a few years later:

in an interview in his Ottawa apartment, [former Chief Justice of Canada Antonio] Lamer said he thinks some judges these days are too lenient and some prisoners, such as drug traffickers, are up for parole too early. "I will candidly say I have been looking at some sentences and I have found they are not what they should be. They should be more severe," said Mr. Lamer. "These words coming from me might surprise some people, but I mean them." To that end, Mr. Lamer said, he agrees with some of the Harper government's tough-on-crime initiatives. [emphasis added]

So, if we're going to indulge in "argument via source", let's really indulge in argument via source.  Odd that Greenspan elected to leave all that stuff out, innit?

One final thing to note about what both Greenspan and the Supreme Court yammer on about when talking about conditional sentencing.  Let's look again at what the Court (and Greenspan) have said:

Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender.

That sounds nice. Regrettably, as we've previously seen, when some members of the judiciary are confronted with a law which runs counter to their instinct to treat criminals leniently, they just, you know, ignore the law.  So, no one should be suprised to learn that the rhetoric about conditional sentences providing an opportunity for "reparation" to be made to the victim and for the criminal to accept responsibility for the conduct are simply that - empty rhetoric.  As the Department of Justice's 2004 report on conditional sentences found, judges (surprisingly!) have little interest in making criminals take responsibility for their crimes in any meaningful way: "Very few reported cases contained conditions that provided acknowledgment of and reparation for the harm done to the victim".  Even better, imposing conditional sentences in crimes of serious violence has the consequence of "increas[ing] the suffering of the crime victim, whatever the benefits for the offender", because victims see their offenders not being punished in any meaningful way, even to the point of having to endure criminals entertaining friends at home while being "punished".  Strange, again, that Greenspan elected not to mention any of these empirical reports about the uselessness (and in some cases positive misfeasance) of conditional sentencing in his little jeremiad.

What we see in Greenspan's column, in the Supreme Court's decisions on the matter (and even, as yesterday, in judicial pronouncements when talking about sentencing, when letting someone out of jail was emphatically described as not letting them out of jail), is the embedding in the very heart of our discourse on crime and sentencing the cancer of a radical untruth: that not punishing is the same as punishing, that being soft is the same (even worse!) as being hard, that things which have not been shown to work actually do work, that up is down, wet is dry, right is wrong.  Worse than the implicit degradation of the suffering of innocent victims which is implicit in the entire conditional sentencing regime is the fact that the soft on crime agenda debases not just language but the ability to engage in rational debate.  Even worse than that is the fact that it undermines public confidence in the system: people aren't so stupid that they don't know when they're being lied to, and the fervent assertions of judges, academics, pundits and criminal defence lawyers that giving someone a slap on the wrist is just as bad, just as effective, just as meaningful, as actually punishing them by putting them in jail, are lies of a profound and debilitating order.

Great Moments in Canadian Sentencing 06.22.09

The Greenspan-Gardner Hypothesis suffers another cruel blow:

A 23-year-old Mississauga woman is getting released from prison just three years into her 10-year sentence for murdering her mother.

I know this isn't a funny story, but this is really just too hysterical for words:

Duncan said to keep the "gifted and intelligent woman with superior intelligence" in prison would be "little more than warehousing" her, something Canada's youth laws oppose.

True.  Or it might be "little more" than punishing her, but I understand that's something that "Canada's youth laws oppose" as well.

She has been accepted at the University of Waterloo for programs in science and engineering with a scholarship for the fall term. For now, she will take courses online using the halfway house computer.

Nice.

The woman, whose identity remains protected by Canada's youth laws, smiled when she heard Duncan's decision.

I'll bet she did, the charmer.

She was the driving force behind their mother's murder and held her head under the bathtub water for four minutes.

True, but she is also a "gifted and intelligent woman with superior intelligence", so she's, I guess, intelligent-squared.  And, really, who are we as a society to hold a "gifted and intelligent woman with superior intelligence" in jail just because one night she happened to, say, kill her mother by drowning her in the bathtub?

This is the best part, though:

But it's important for society to understand she will not be "let out," Duncan said.

No, no, god forbid we misconstrue what's happening as her being "let out" - her freedom to attend university is entirely not a characteristic of somebody who has been "let out".

"She will be under a different form of custody," he said.

Yes, the "not in custody" form of custody.

"She has completed every available program (in prison)," Duncan said. "In respect of her rehabilitation, there is little or nothing left for her and by extension for society."

Right.  What about, say, punishment?  Is there "little or nothing left for her and by extension for society" in that?

She will be going from a cottage-style living environment in prison to a halfway house where she will be under the restrictions of the home but with greater opportunities for rehabilitation and re-integration into society, he said.

Oh, now I get it: she's not being "let out", because she wasn't ever really "in" to begin with - she was hanging out in a "cottage-style living environment".

But the good news never ends!

They will be eligible to apply for full federal parole Oct. 29, 2009 with their mandatory release after serving two-thirds of her sentence on March 11, 2013.

Yay!

Great Moments in Canadian Sentencing 06.15.09

Another blow to the Greenspan-Gardner thesis that Canada is just so darn tough (and getting tougher!) on convicted criminals: a convicted murderer has walked away from "imprisonment" which is so laughably soft-touch that not even the guards can figure out why he bothered to escape.

He slept in a bedroom, not a cell, and the ground outside his prison was free of walls and guard towers – in fact, there wasn't even a fence.

So why would Andrew John Wood, convicted of murder in the execution-style shooting death of a Toronto man in 1989, want to escape?

... A Frontenac employee who asked not to be named said the reason for the escape was not obvious to her.

"I really don't know why he left."

Sotomayor and the Canadian Judiciary

The good folks at the National Post were nice enough to publish an op-ed by me today entitled "Face It: Judging is Political".  Hopefully it highlights one of the more oblique lessons to be learned by Canadians from the nomination of Sonia Sotomayor to the United States Supreme Court.

UPDATE: Also available at the Post's Full Comment blog under the slightly more bracing title "Lessons for Canada in the Sotomayor Brawl".

The Mark 05.27.09

New piece up over at The Mark.  It's more interesting (I think) than the title ("Corrections" Sections in the Digital Age) would indicate.  This bit captures the flavour:

Perhaps Bold! New! Initiatives! like www.globeandmail.com have calmed the jitters among the fourth estate. But technological razzle will do little to stanch the bleeding at the core of the news media, because they do nothing to address a critical issue – the erosion of trust in the accuracy of the news.

Passing By 05.25.09

Matriculation ceremony attendees, Merton Street, October 2009.

Oxford Castle Tower

 

Magdalen College.

Gorilla gorilla skeleton.  Yep.

Passing By 05.21.09

More of Oxford, in and around Christ Church College.

 

 

 

Passing By 05.20.09

Lacking the time to blog in any serious manner, I've decided to flay those who occasion this outlet with pictures.  It's astounding the sheer number which one can accumulate given a 2GB memory card and the inveterate need to roam.  So:

 

The Radcliffe Camera.  A surprisingly dull building on the inside.

 

Oxford colleges are surprisingly big on sundials.  All Souls represents with one of the largest.

 

All other institutions of higher learning (except for The Other Place) have it backwards: you're supposed to wear the mortarboard when you start your studies, not when you finish them.

 

New College Chapel.

 

Round here, the Natural History Museum resembles nothing so much as a cathedral.  With dinosaurs.

The Mark

You know one thing I didn't miss about law school?  Studying for 100% finals.  Ah.  Memories.  So, being stuck in the middle of preparing for exams, I've been neglecting a few matters.  Like, f'rinstance, mentioning the (beta) launch of The Mark, which is, pace Michael Geist, a new Canadian news/opinion site with "a Huffington Post feel".  They've collected an impressive gaggle of contributors and they've done an admirable job of finding people from all over the political map - check it out.  Somehow, they fell for the notion that I'd have something to contribute as well, so stick around long enough and you'll see my big potato head popping up; a Mr. A. Wherry and his readers are reserving judgment on my value.

"simply do not buy it"

I have to admit I'm becoming a keen anticipator of Edward Greenspan's columns written for the Sun chain of newspapers.  Because they're so good, you ask?  No, because they are so painfully bad (his installment discussing the finer points of this newfangled thinger called "the internet" is for the ages).  His latest column, soaringly entitled "Let criminals write" is absolutely glorious in its awfulness.  The arguments presented are so poor he actually manages to refute every single one of his own arguments by the time he gets to the end of the column.  It is, and I speak with no hyperbole whatsoever, a masterwork.

I am frequently told Canada is soft on crime. I think that is a myth.

Canada is tougher on crime than most people believe, and getting tougher by the day. Just consider the response to the news that convicted murderer Colin Thatcher is planning to publish a book later this year about his infamous case.

Tougher and tougher (by the day no less)!  One has to admire the sheer gall of writing the phrases "Canada is tougher on crime than most people believe" and "Colin Thatcher" within a couple of sentences of each other.  Colin Thatcher, you might recall, was convicted of the first-degree murder of his ex-wife.  Bear that in mind: first-degree murder, supposedly the worst of the worst crimes that can be committed under our legal system, nominally resulting in an automatic "life sentence" with no possibility of parole for a minimum of twenty-five years.  So, as I was saying, Colin Thatcher gets convicted of first-degree murder, and what does the "tougher and tougher" Canadian sado-state do to him?  It houses him in Ferndale, a "prison" complex which accords Thatcher residence in a duplex-style house with a room of his own, a nine-hole golf course on the grounds to sate any desire to swing at little white balls, and room for him to board his pony (seriously.)  I've never committed a crime in my life, and the government doesn't pay for me to play golf every day with my pony nearby; it's an outrage, I tells ya.  Oh, and then Thatcher was given full parole (after previously being accorded day parole) after twenty-two years.  With malicious, gratuitous punishment like that, it's a wonder people have any faith left in the government whatsoever.  But them's were the olden days! you might cry - we're really tough on criminals now.  We sure is!  Like, say, this guy, who was convicted in 2000 of raping an 11-year old girl (after being on statutory release for a previous sexual assault conviction), and who has "a history of violence against 'people he perceives that he has a grievance' as well as those he comes into contact with during the commission of other crimes, such as robberies".  What did the "tougher and tougher" Canadian prison-industrial gulag-complex do to him?  Paroled him the other day.  I digress...

On to the topic at hand, Greenspan's arguments against Saskatchewan's Profits of Criminal Notoriety Act (text of bill can be found here - Download Saskatchewan Bill 94).

Greenspan argument against, the first:

Several provinces already make it illegal to profit from writing or selling the story of a crime, but Morgan said he will consider new legislation "not just with regard to specific items but with regard to all sources of revenue."  Apparently Saskatchewan may want to prohibit convicted criminals from ever having a cent of revenue for the rest of their lives. I am sure many readers would have no problem with that.

Oh ho!  Little bit of misdirection there - "apparently Saskatchewan may want to prohibit convicted criminals from ever having a cent of revenue for the rest of their lives".  Well, no - as anyone who is familiar with similar "Son of Sam"-type legislation in force in other provinces, or anyone who read the Saskatchewan government's press release, or anyone who has read the draft bill, or anyone who understands basic English, could have told you, the Saskatchewan justice minister was referring to all sources of revenue arising from the crime or the recounting of it, such as the sale of memorabilia or the sale of movie rights in the book.  But yes, if it makes your argument easier to make, Mr Greenspan, let's assume the government of Saskatchewan is going to introduce legislation which will prevent convicted criminals from ever earning a dollar in their lives from any source of income whatsoever.  So, first argument against fails due to acute strawman-itis.

Greenspan argument against, the second:

Saskatchewan should not fall for the same mob mentality other provinces have. The publication of accounts of crime should be unfettered in a democratic society that respects freedoms of expression, press and other media communication.

Indeed they should be, and the proposed legislation does absolutely nothing to inhibit any of "freedoms of expression, press and other media communication".  It contains no language whatsoever which prevents anyone, at any time, from writing and/or publishing accounts of crime.  It merely prohibits payment to a convicted (or accused - more on that later) criminal on account of the recounting of their crime.  So, second argument against fails due to... I don't know, sheer obtuseness.

Greenspan argument against, the third:

History has repeatedly demonstrated there are invaluable insights to be gained from the writings of convicted criminals.

Following that sentence, Greenspan provides... no examples whatsoever.  Maybe they're out there.  Mr Greenspan couldn't be bothered to enumerate them.  Third argument fails due to lack of evidence.

Greenspan argument against, the fourth:

And in an era where wrongful convictions are prevalent, we should not discourage people who believe they are innocent from trying to raise funds to plead their case. There would be a major chilling effect upon the wrongfully convicted.

At first glance, this seems like a compelling argument.  But only at first glance.  The main organizations in Canada which advocate on behalf of the wrongfully convicted (the Osgoode Hall Law School Innocence Project and the Association in Defence of the Wrongfully Convicted (both of which are endeavours which deserve greater financial support from both government and public) are both non-profit volunteer organizations - the ability of an individual contesting their conviction to pay is irrelevant (there is no one to pay).  Might there be situations where an individual who has been wrongfully convicted is rejected by both those organizations and yet still wants to mount a contestation of his or her conviction?  Possibly - but since those will inevitably be marginal cases, we would need to balance such marginality against the purposes of the legislation (about which more later).  We should also note that the proposed legislation (in sections 8 and 9) allows for the possibility of a convicted individual to apply for a court order approving a contract for payment in exchange for recounting a crime - meaning someone who is wrongfully convicted could enter into a contract which provides that payment be made to their lawyer, thereby funding their contestation of their conviction.  So, argument the fourth gets about a third of the way there, then gets harried back to the starting line.

Greenspan argument against, the fifth:

The proposed law and existing ones like it are not even necessary. It is important to recognize there is a difference between the proceeds of crime and the proceeds of writing about crime. Convicts are typically required to return the proceeds of their crimes, such as stolen property.

But crime victims and their families can sue the perpetrators for damages. If the victim receives a judgment, then the victim can seek to collect money from the perpetrator until the judgment is satisfied, regardless of whether the perpetrator's income is from writing fact, fiction or just from plain working.

It is thus an irony of the proposed Saskatchewan law that under the current status quo, victims are now more likely to have a chance of receiving compensation from their attackers than they would be if the law passes and perpetrators lose all financial incentives to tell their tales.

Here is where Greenspan's argument starts getting really wonky.  The argument, as near as one can translate it into plain English, appears to be that the proposed law is "unnecessary".  Not "unnecessary" in the sense that "it serves no purpose", but "unnecessary" in the sense that "it is redundant" - in other words, the purpose is already being served by existing laws - in this case, tort law.  Let's accept that as the case for the moment.  If so, then why isn't Greenspan arguing against the existing doctrines of tort law which have the result he decries?  He doesn't - not even once, not even remotely.  He apparently thinks it is perfectly fine for victims to be able to sue criminals and recover the proceeds of any book advance or royalty or any other revenue stream derived from the "sale" of a recounting of the crime they committed.  And note that the tort law doctrine, which Greenspan does not argue against, actually bears the characteristic which he incorrectly ascribed to the proposed legislation: if you obtain a judgment in tort, it applies against all sources of revenue, regardless of provenance, until the judgment is satisfied.  So now we know that Greenspan is either lying about his objections to the proposed legislation, does not understand the implications of his argument against it, or misunderstands the laws to which he is pointing.  On this account, all that the proposed legislation does is short-circuit the need for victims to sue their victimizers: instead of having to go to court to get a judgment in order to get their hands on the book advance/royalties, the funds are supposed to be paid directly over (well, first they go to the minister of justice, then they go to the victim - still, that's a lot quicker than going through a trial and trying to enforce a judgment).  Since Greenspan evidently has no objection whatsoever to the underlying principle, why is he opposed to victims being given a more efficient way to seize those funds?  His fifth argument therefore fails for lack of internal consistency and coherency.

The final portion of his fifth argument reveals just how confused it is, and I'll repeat it here for the sake of convenience:

It is thus an irony of the proposed Saskatchewan law that under the current status quo, victims are now more likely to have a chance of receiving compensation from their attackers than they would be if the law passes and perpetrators lose all financial incentives to tell their tales.

That makes no sense whatsoever - on both scenarios, whether sued in tort or as a result of the proposed legislation, the "perpetrators lose all financial incentives to tell their tales", since in both cases they would be foregoing the money in favour of the victim.  So, on Greenspan's account, authors never have a financial incentive to tell their tale - under current law, they can be sued in tort, and under the proposed law they are a priori not entitled to receive the funds.  So what's he complaining about?  Which gets us into the question of motivation and incentives.  But before we get there, let's take a look at the remaining arguments which Greenspan proposes, because from this point, they become simply nonsensical.

Greenspan argument against, the sixth:

If the purpose of the law is to ensure victims are compensated, then the law is unnecessary as that is already a remedy available to victims.

Simply a reiteration of the fifth argument, so it remains unnecessary to address it for the reasons outlined above.

Greenspan argument against, the seventh:

If the purpose of the law is to somehow protect victims from having their story told in public, then the law is a violation of the free speech protections of the Charter.

Yeah, that does seem like it woul... hey, wait a second - why are we talking about "the purpose of the law" as "if" we're not quite sure what it is?  The purpose of the law is not at all to "somehow protect victims from having their story told in public" - because then the law would need to cover not just the criminals, but also journalists, court reports, lawyers, hell, even judges - each of them participate in the "telling of a victim's story in public".  So we know that's not the supposed purpose of the law - it would be a deranged purpose, first of all.  So why doesn't Greenspan do the simple thing, and see what the law itself cites as its purpose?  From Section 3 of the proposed legislation:

The purpose of this Act is to prevent persons convicted of, or charged with, a designated crime from financially exploiting the notoriety of their crimes and to: (a) compensate victims of those crimes and their family members; and (b) support victims of crime.

Was that so hard?  To find out what the actual purpose of the law is, rather than concocting absurd "purposes" advanced by absolutely no one, solely in order to buttress an already collapsing argument?

And anyhow, the law would be ineffective in protecting victims from having their story published, since the law would still not prohibit the perpetrator from writing about the crime for no compensation, and would not prohibit journalists or others from writing about it too.

Of course it would be ineffective in "protecting victims from having their story published" - because that's not what the law is trying to accomplish.

Authors can write and profit from the crimes of others with no compensation whatsoever owed to the victims. In Cold Blood, The Executioner's Song, Fatal Vision, and Dead Man Walking all easily come to mind.

It's excellent that those all easily come to mind.  Why, the question arises, though, did the actual purpose of the law not come so "easily to mind"?  The quoted sentence even hints at the underlying philosophy of the law: we don't care so much about other people writing about crime, because they are not involved in the moral grotesquery of committing a crime and then also profiting from its recounting.  You need both elements of that equation in order to fall afoul of the moral and legal sanction.  Oddly, Greenspan does not once, ever, address the very basic moral question at the heart of the matter: does he think it is morally acceptable to profit from a crime you have committed?  It's just possible that he doesn't think it is morally acceptable: as noted above, he's certainly not opposed to people being able to recover a criminal author's monies by means of a tort claim.  But if that's the case, if he agrees that it isn't morally acceptable, then all he's complaining about is the means by which the end is accomplished - and his arguments against the means simply hold no water.

Buried in the heart of his previous argument is the latent fact which undercuts his entire piece:

... the law would still not prohibit the perpetrator from writing about the crime for no compensation...

Exactly.  So, since the law does not prohibit criminals from writing about their exploits, we need not be troubled by any of his first, second, third, fourth, fifth, sixth or seventh arguments against the proposed law - the accounts will still be written (thus ensuring us access to their doubtlessly endless historical value), there will be no censorship of views contra the Charter, there will be no inhibitions on fundraising for appeals, and the actual purpose of the law (not the faux purposes invented out of thin air by Greenspan) is valid and accomplished in a (relatively) limited manner.  But Greenspan isn't done yet: 

Thatcher was convicted and punished. He has served his time.

If you think Colin Thatcher should not profit from his book, simply do not buy it.

Yes, that does seem like an innovative approach.  It would not, however, address the fact that Thatcher has already received an advance from his publisher for his, er, efforts.  And it also does not address the fact that the impulse of criminal prohibition is not that the act in question offends me or you or someone else, but that it offends societal norms - it's all well and good for Thatcher not to get my money, but he will still be getting some money, and therein lies the objectionable act.

And so, at the end, we are left with a limp noodle of a column and argument: Greenspan is objecting to a proposed statute which accomplishes a much more narrow goal than is accomplished by existing law which he implicitly supports.  He is objecting to it on grounds which are so flimsy that they don't even manage to last through to the end of a 700-wrd op-ed column, being refuted by the author's own arguments.

Now, what arguments could be levelled against this proposed legislation?  Overbreadth for one: it applies not just to those convicted of crimes, but those accused of crimes - quite a big difference; it seems unjust to prevent someone who has not yet been convicted of a crime from receiving monies to which they are otherwise lawfully entitled.  We could query whether the mechanisms put in place in the law are as straightforward as they might be (there's a lot of holding onto funds by the government occurring) or put sufficient onus on the government to disburse in a timely manner.  There might be others.  Do we get any hint of them in the column? No.  Do we get even an explanation of how the proposed law would work? No.  Instead, we get hand-waving and mischaracterization.  Not bad work if you can get it, I suppose.

Seriously, Serious Crime

(update: whoops, had some formatting issues with the graphs - should be fixed now)

(update II: okay, is everyone else having trouble seeing the graphs? they show up in my TypePad editor, but don't appear on-screen at the blog itself... hmmm...)

(update III: I'm sure these editorial digressions are fascinating for y'all - all fixed now)

July.  I love July.  Why? Because July is the month in which Statistics Canada usually releases its annual crime rate reports, which sets off a furious round of lies, misdirection and obfuscation from editorial writers, op-ed columnists and "straight news" reporters.  What are they lying, misdirecting and obfuscating about? Violent crime - mostly, they're trying to get you to ignore it or actively attempting to convince you that, in the face of all available evidence, it's really not such a big problem.  Happily, after a couple of weeks of travelling, I arrived back at my temporary homebase to discover that July has arrived a little bit early this year.

New statistics suggest serious criminal offences were on the decline well before the federal Conservative government launched its anti-crime campaign in Parliament.

The figures, reported by Statistics Canada on Tuesday, indicate police-reported crime was less serious overall in 2007, the year after the Tories took office, than it was a decade earlier. The agency says the crime rate had also dropped, but to a lesser degree.

That's a direct quote from a Canadian Press story published by the Toronto Star - which is under the apropos-of-nothing headline "Crime rate hit 30-year low in 2007" (apropos of nothing because (a) that the crime rate hit a 30-year low in 2007 was reported in July 2008 and (b) the StatsCan report on which the news story is based is not about overall crime rates, but about a new ranking called a "crime severity" index).  It all sounds very impressive: "serious" criminal offences declining, crime is "less serious" than before... it's all very soothing.  Heck, they even came up with a fancy graph which resembles a fun little ride on a downhill slope to hunkydory land.  "Serious" crime is down!  What the heck all you knuckle-dragging conservatives so worried about, huh?

How nice things would be if journalists and commentators could manage to make it through to, say, the third friggin' sentence of the StatsCan press release on which they are basing their reports and posts:

However, the seriousness of police-reported violent crime did not follow this downward trend and remained stable.

In other words, the new, arbitrary, entirely-made up category of "serious" crime declined over the last ten years.  Unfortunately, violent crime did not - it stayed stable.

Here's the graph which fits the narrative:

  

Here's the graph you should actually be concerned about (available here):

Here are the numbers which back up the graph you should actually be worried about.

But, as I've said elsewhere, even to diddle about with the intricacies of the "serious" crime rate over the last ten years, or the "severity" index of the last ten years, or even the "violent crime" rate of the last ten years is to be distracted from the more important (indisputable, incontrovertible) fact that our violent crime rate is vastly greater than it was 20, 30, 40 or 50 years ago (source here - see also page 16 of this StatsCan report):

Has the violent crime rate been "stable" over the last ten years?  Kind of.  If you ignore little things like the fact that the most serious assaults have increased over the past ten years by rates of, oh, 32.3% (assault level 2 - involving use of a weapon/bodily harm) or 18.6% (assault level 3 - aggravated), or that forcible confinement/kidnappings have increased more than 100% over the last 10 years.  But that ten year period of "stability" is rather thin gruel when you realize that we're holding "stable" at an insanely high violent crime rate - one which is roughly quadruple what it was when comprehensive statistics began to be maintained.  But the news reports won't mention that, nor will many of the sneering editorials, nor will many of the glib op-ed writers - it will all be about that first, misleading, untruthful, largely irrelevant headline - yes, "crime", a concept massaged, manipulated and interpreted so as to be largely rendered meaningless is "down", but violent crime, the kind that results in you or someone you love being attacked, raped, robbed, murdered, is nowhere near "down" enough.

Polygamy Panjandrum (Tres)

For anyone looking for a detailed legal analysis of the odds of the polygamy prohibition withstanding a Charter challenge, I strongly recommend Beverley Baines' piece in The Lawyers Weekly.  She concludes that Section 293 of the Criminal Code is unlikely to be deemed Chater-compliant, and she also notes that the federal Civil Marriage Act likely precludes any move towards full legalization (as distinct from decriminalization) of polygamous marriage (though I wonder how that might square with the provisions in various provinces which permit recognition of foreign-performed polygamous marriages).  Finally, she notes that the Law Reform Commission of Canada recommended in 1985 that polygamy be decriminalized - which further upends the Steyn/Warren rhetoric that this entire discussion is occurring solely because of teh gayz.

Polygamy Panjandrum (Dos)

Mark Steyn, who I normally have a fair bit of time for, has written his contribution to the latest round of the polygamy brouhaha.  (In case you missed my most recent installment in this series, see here.  If you need a refresher on my views about polygamy, here it is: polygamy is a bad practice, and you shouldn't do it; I don't think there needs to be a criminal law against it; I don't think the Supreme Court of Canada will strike down the anti-polygamy provisions of the Criminal Code of Canada.)

Over at Idea Anaconda, there is this request prompted by Steyn's article:

But, even if one supports gay marriage, it’s important to recognize that its legalization will bring real changes in the culture, polygamy being just one of them, and probably the least of them. The traditionalist opinion may be odious and intolerant to the gay marriage crowd, but the latter will win more credibility if they answer the objections of those like Steyn honestly and without hostility.

Fair enough.  I will hereby try to answer the objections of Steyn honestly and without hostility (not that I think my previous answers to the objections of, say, David Warren, were dishonest and hostile).  Here goes:

...

Well, that didn't work out so well.  Look, I'd really like to respond to Steyn's arguments against polygamy, but I simply can't figure out what they are (Olaf does a marvelous job of pointing this out).  Nowhere in his article does Steyn elaborate on the basis of his opposition to polygamy - presumably thinking that the practice is so obviously odious it requires no elaboration.  Which may well be the case; but that's not really the debate which is taking place - the debate, to the extent it is taking place at all (for all of Warren and Steyn's lamentations, it's a bit unclear quite who the pro-polygamy armies consist of, other than the two shleps who have been charged), is not about whether polygamy is a good or bad idea, but whether there needs to be a criminal prohibition against it.  Even on that count, however, Steyn's argument is, as with David Warren's before it, confused and confusing.

Firstly, Steyn's causal chains seem to be irredeemably broken: he seems to be taking the view that the government launching a prosecution for polygamy is somehow evidence that ... the entire culture is sliding towards a celebration of polygamy.  Which is just bizarre - if everyone was cool with polygamy, wouldn't the government not be laying the charges?  More bizarre still is the notion that the legalization of gay marriage was the catalyst for the sudden open-armed embrace of polygamy.  Here is the chronology:

(1) 1892 to 2005 - no one is getting prosecuted for polygamy in Canada

(2) 2005 - gay marriage becomes legalized in Canada

(3) 2009 - some guys start getting prosecuted for polygamy in Canada

Incredibly, the Warren/Steyn interpretation of the foregoing is the precise opposite of what has actually occurred - they are reduced to celebrating the cultural fortitude of the days when there were no prosecutions for polygamy (even though it was occurring), and denigrating the cultural fortitude of the days when there are prosecutions for polygamy.  It's nonsensical.  More nonsensical still is the fact that everyone acknowledges that polygamy has been practiced, openly, for decades in Bountiful, British Columbia - certainly for decades prior to the legalization of gay marriage, decades, even, prior to the decriminalization of homosexual sex in 1969.  So how is it possible that gay marriage was somehow the causal agent for polygamy?

By the end of Steyn's article, the causal links are simply melted down and cast away:

Madame L’Heureux-Dubé and her fellow progressives think that women’s rights and gay rights are like the internal combustion engine or the jet plane—that once you’ve invented them they can’t be un-invented. Yet tides rise, and then ebb. Forty years ago Nigeria lived under English common law. Now half of it lives under sharia, and the other half’s feeling the heat. Go back to Martha Bailey’s pitch for immigrants: how many highly skilled polygamists and their legions of wives have to emigrate to Canada before “the rising tide of cultural acceptance for gays” begins to ebb?

So... if I've got this straight (punny!), legalized gay marriage (which Steyn doesn't like) leads inexorably to polygamy, which leads inexorably to lots of anti-gay polygamous immigrants, which leads inexorably to gay marriage being frowned upon and possibly being made illegal again.  Right.  So... shouldn't Steyn et al be in favour of encouraging polygamy so as to achieve the desired end of rendering gay marriage unacceptable and/or illegal?  Or am I missing something in the argument?

I think polygamy's a bad idea, for a host of reasons (not least of which is that I imagine it would leave you really tired), but I have no idea why we need it to be prohibited by the criminal law.  I can tell you, definitively, that my views on polygamy are informed not at all by its legal prohibition.  No one, ever, said to me "Bob, polygamy's a really bad idea and if you need any further proof, why it's prohibited in the Criminal Code of Canada" - they didn't need to.  It's like murder, or other "crimes" that the fancy-pants legal philosophy types like to call malum in se - if tomorrow the government decided to repeal the Criminal Code prohibitions on murder, we wouldn't all suddenly go "Oh, so now it's morally okay to kill people".  The criminal law is not morality - nor is morality the criminal law.  It's nice when the two overlap, but if they don't, that's not a critical failing for either.

Take Tom Flanagan's argument, which Steyn references: "If this isn't properly defended, there will be a train of consequences flowing from a loss, which will lead to full-scale normalization of polygamy."  Oh, you have got to be kidding me.  A "full-scale normalization of polygamy"?  This succumbs to what I like to call the "legal determinist" fallacy - that if something isn't expressly prohibited by law, suddenly everyone is going to run out and do it; or, in its a fortiori iteration, that if something was previously illegal, once it becomes legal, everybody will suddenly run out and do it.  Every single Canadian citizen is perfectly free to buy as many Robbie Williams CDs as they want to.  Oddly enough, not many of them do.  Why?  Who the hell knows?  But the fact that something is legal doesn't magically render it fully "normalized" or cause human beings to become automata, unable to prevent themselves from carrying out the action in question.  Our Criminal Code used to make it a criminal offence to attempt suicide - when that provision was repealed in 1972, Canadians didn't suddenly decide to try and off themselves.  When gay marriage was legalized in 2005, millions of heterosexual Canadian males didn't suddenly say to themselves, "f**k it, I'm marrying Steve tomorrow".  (Hell, not even homosexuals were all that fired up about getting married - a point which, bizarrely, the anti-SSM brigades then cited as proof that it should never have been legalized in the first place (bizarre because it contradicted their prior stance that legalizing SSM would result in a cultural tsunami that would bury heterosexual marriage).)  There are centuries of cultural inertia behind our distaste for polygamy - the notion that our cultural aversion to polygamy is buttressed solely by section 293 of the Criminal Code not only does a disservice to our cultural heritage, it seems to completely misunderstand how our society actually functions.

Before leaving Steyn entirely, there is one argument he raises which warrants further consideration:

“Gay marriage, they assure us, is the merest amendment to traditional marriage, and once we’ve done that we’ll pull up the drawbridge.”

Claire L’Heureux-Dubé, the former Supreme Court justice, remains confident the drawbridge is firmly up. “Marriage is a union of two people, period,” she said in Quebec the other day. But it used to be a union of one man and one woman, period. And, if that period got kicked down the page to accommodate a comma and a subordinate clause, why shouldn’t it get kicked again? If the sex of the participants is no longer relevant, why should the number be?

There are the hints of a devastating argument in there: we redefined "marriage" so as to not take account of the gender of the participants, so how can we logically defend a definition of "marriage" which is limited to "two persons"?  As Steyn says, if gender is no longer a limiting agent, why should the number of participants be?  True enough.  It is indeed extremely difficult to construct a logically coherent argument which allows marriage-regardless-of-gender, but draws the line at marriage-regardless-of-numbers.  However, Steyn's argument misapprehends the nature of legal reasoning and quite why laws get struck down or upheld.  In short, "logic" has little to do with it.  We don't require our laws to be logically consistent - we require them only to be reasonable.  If laws required "logic" to be valid, we'd have awfully few laws.  What's the "logical" basis for restricting drivers licenses to those aged 16 years and older?  Why not 14 years?  Why not 32 years?  Yet our courts don't strike down the age-based restrictions on driving, any more than they strike down speed limit laws, or laws prohibiting construction of buildings over certain heights, or laws prohibiting sexual relations with children under certain ages or any other set of laws which contain numerical or other conceptual limitations which cannot be defended on the basis of "logic".  The prohibition against polygamy need only be reasonable: and in light of the relatively well-documented negative social repercussions which follow on from polygamy, my money is on the courts ultimately concluding that a prohibition of polygamy is, indeed, reasonable.

Polygamy Panjandrum

David Warren's latest column, on the inevitability of legalized polygamy, is deeply confused, not to mention confusing.

Warren's argument, near as I can make it out, is that Canadian courts are on the cusp of "inevitably" (Warren's term) making polygamy legal in Canada, which (a) is an illegitimate activity on the part of the courts, and (b) will have dire social consequences.  Neither of those claims stand up to much scrutiny.

As Warren concedes, polygamy has been openly practiced in at least one Canadian community (Bountiful, British Columbia) for going on fifty years (until February of 2009) without a single prosecution being launched under the existing prohibition on polygamy.  That "fifty years" bit is important - if, as Warren seems to think, the Charter is all that is standing in the way of successful prosecutions for polygamy, how to explain the fact that no one was bothering to bring polygamy prosecutions in the decades prior to the Charter's introduction in 1982?  And what does it say about the validity of a law which is openly, wilfully and flagrantly flouted for decades on end without any repercussions?  Does it perhaps say the teeniest thing about the advisability of that law?

Worse, though, is the wilful misrepresentation of the current state of the law:

That the legalization of polygamy will have more immediate practical consequences than same-sex marriage can be easily seen. It will make Canada the first country in the Western world to be compelled to accept the multiple wives of immigrants from such countries as Saudi Arabia, where polygamy is legal; and others, as refugees from where it is not.

Regardless of whether Canada is in the vanguard on this point, Mr Warren should surely be aware that a number of Canadian provinces, including Ontario, already "accept the multiple wives of immigrants from ... countries ... where polgamy is legal" - and they do so not at the end of the whip of the judiciary, but after the considered deliberation of the legislature.  Thus, Section 1(2) of the Family Law Act (Ontario):

In the definition of “spouse”, a reference to marriage includes a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid.

This is not new.  Thus, when Warren goes on to argue that "[Court imposition of legalized polygamy] will have fiscal implications, as polygamous families sue to receive multiples of the benefits now received by common law and other two-adult families ... [and] will create a legal vacuum in which demands will be advanced for everything from public recognition of polygamous marriages to status claims by additional wives and sundry children", he again seems to be entirely unaware of the fact that under the current legal regime in Ontario, as enacted by the legislature, participants in polygamous marriages performed in other jurisdictions are already perfectly entitled to receive public recognition of those marriages and related status claims.  One might be of a mind to try and reconcile the divergent approaches taken by the Criminal Code and the Family Law Act regarding the advisability of polygamy (not hard to do, really - the former prohibits its occurrences in Canada, the latter sanctions it if it occurred in a different legal regime), but no such nuance is present in Warren's column.

Will the courts "inevitably" strike down the polygamy prohibitions of the Criminal Code?  I wouldn't bet the house on it - though it's certainly possible (most informed observers on the matter (see here for example) think it's a pretty close call, but my sense is that striking down polygamy on the basis of infringement of religious freedom will be seen as a step too far by the Court and one which they won't be inclined to take).  For the record, my own position on this issue accords roughly with what Jon Bricker calls "a libertarian stand" - "the state has no more place in the proverbial bedrooms of the nation when it comes to polygamy, than when it comes homosexuality and adultery".  I don't think the state should be encouraging polygamy, but I'm not sure why, absent coercion or fraud, we should be threatening to throw people in jail for it either.  The argument that "Canadian society/culture" has long rejected polygamy has much to recommend it, but one adopts a rather thin view of society/culture if you think that the only way in which a society/culture can express its values is by means of the criminal law.  Put slightly differently, if you need the full penal power of the state to reinforce the abhorrence of polygamy, then maybe the societal/cultural taboo against it is a little weaker than you'd care to admit.  Put even more slightly differently, nobody has bothered to enforce the polygamy prohibition, yet the practice is (and its practitioners are) still shunned by the vast, vast, vast majority of Canadians - so we clearly don't need the threat of the criminal law to undergird the social norm.

But of more concern than any gaps in logic or mistakes of law is this passage:

To ensure self-defeat, [the Harper] government is now mounting its whole case on "Canadian values." As one legal blogger writes, "Canadian values" currently embrace saving puppies, but eating cows. "Canadian values" would have some relevance to the case if Canadians had the right to decide whether they wanted polygamy to be legal; and if, moreover, Canadians were allowed to debate such issues openly, freed from the legal and other intimidations of the politically correct.

But we have lost that right, which has been transferred - thanks chiefly to the Charter, but also to various supporting trends in politics, jurisprudence, bureaucracy, and media - to special-interest activists who can afford lawyers and lobbyists to work the system.

That is such an utterly bizarre collection of assertions that I'm having difficulty separating them out.  (I'll leave aside the contention that the determination of the polygamy issue is being transferred to "special-interest activists who can afford lawyers and lobbyists to work the system" - a cabal which currently, as far as I am able to see, consists of the two men charged with violating the anti-polygamy provisions and their defence counsel.)  To begin, the notion that Canadians are somehow being prevented from "openly" debating the legality of polygamy is manifestly absurd (rendered no less so because Warren is openly debating the matter in a major newspaper in one of Canada's largest cities).  I'm struggling to think of a section of the Criminal Code which has been the subject of as much discussion over the last decade or so as Section 293.  There has been extensive coverage in major Canadian newsweeklies; reports commissioned by provincial governments [.pdf]; reports commissioned by the federal government [.pdf]; more news reports than you can shake a stick at; and more blog posts about it than there are minutes in the day.  The notion that this is an issue which is being obscured by "legal and other intimidations of the politically correct" is, to use the French, delusional.

Moreover, the notion that debate on this issue is being stymied or silenced is itself corrosive to public engagement - if people read Warren's column, not only are they misinformed about the facts, but they are left with the impression that forces are at work which are actively stifling debate, thereby reducing, baselessly, what little confidence people have left in the efficacy of our public discourse.

How Not to Argue in Favour of 2-for-1 (Seis)

The good folks at Canadian Lawyer asked me to write an op-ed about the debate over two-for-one sentencing credits, giving an overview of the arguments.  The result is here.

What Is It With Globe and Mail Op-Ed Writers...

and their bizarre bloodlust?  Last year we had the sad spectacle of Canada's Worst Newspaper publishing Scott Reid's paean to the murdering of Stephen Harper.  Today, we've got Rick Salutin writing this (emphasis, bizarrely, in original):

No matter how often the economy crashes and shatters, [bankers] have no fear of being tried and executed for "economic crimes" - a rare feature of Soviet communism that one can actually feel nostalgic for.

Ah.  Thirty-three million Canadians, and this babbling old fool is the one Eddie Greenspon feels the need to give a column to.

How Not to Argue in Favour of 2-for-1 (Cinco)

This column by Edward Greenspan in favour of two-for-one sentencing credits is little more than a screed against Stephen Harper, so it hardly warrants much attention (and, really, if you aren't going to accept at face value the arguments of criminal defence counsel on matters of the criminal justice system, then you are just far, far too cynical).  Greenspan wanders through the usual rote collection of arguments in favour of sentencing credits: remand is tough, judges need more discretion, Stephen Harper is a big meanie, etc.  Greenspan's argument largely rests on the notion that Stephen Harper is a bad guy, and since Harper's the one who came up with this idea, it must therefore be a bad idea.  Regrettably, Greenspan never mentions that the proposal to eliminate two-for-one sentencing credits didn't fall out of the clear blue sky, nor was it concocted by a cigar-chomping cabal of Reformatory and Rethuglican strategists - it's something that has been repeatedly agreed upon and requested by provincial attorneys general, over a period of years.  Those provincial attorneys general represent parties across the political and ideological spectrum - Conservative, Liberal and NDP.  The measure proposed by the federal Tories has also secured support from the federal Liberals and NDP - something else which somehow manages to escape Greenspan's attention.

But all that is mere throat-clearing for this post.  My favourite moment of Greenspan's column comes about two-thirds of the way through:

Prisoners are given two-for-one credit because pre-trial detention typically involves conditions that are harsh. ... Some plead guilty just so they could be removed from the harsh conditions of a detention centre and be sent to a prison with better conditions. And our prisons aren't spas, believe me.

You're absolutely correct, Mr. Greenspan.  Our prisons are not spas... except when they are:

For nearly seven years, Kuldip Singh Samra has been playing chess, baking cookies, preparing his own meals in his residential-style unit, working in his vegetable garden, taking courses in sociology and jogging on a private track at the minimum security facility that isn't surrounded by a high wall or a barbed-wire fence. Ferndale Institution also boasts a tennis court and weight room.

Or we could talk about the convicted cop-killer who gets to hang out at the minimum security Kwikwexwelhp Healing Village.  Or when first-degree murderers get to board their horses and play golf in prison, or attend football games while on day parole.  I'm on the outside, and I don't even get to tend my vegetable garden or play golf on the government tab - heck, where am I supposed to put my horse?