A Compelling Collection of Criminal Law Scholarship: Book Review of Manitoba Law Journal, (2018) 41:
At times, it seems as though law is a heavily polarized field. On one side, there are the practising lawyers; the practical, front-line people who deal with the realities of our legal system on a day-to-day basis. On the other, there are the academics; the people who chart and explain the progression of our legal system, and who explore the implications of decisions and debate the good and the bad of what our system has been, what it is, and of the direction that it may take in the future. Too often, I think, we put the practising side of law on a pedestal. We students are especially guilty of this. What practising lawyers do is important. They enable the functioning of the legal system, help people to realize their rights. The arguments that they put forward shape the common law and create the framework within which judges render their decisions. In light of this, it is easy to view the academic side of law as unimportant: a side show which, while interesting, is often too far removed from the reality of law to be relevant.
However, such a view misses the great value that academic pursuits add to the legal field. Academia provides perspective. Since academics are not limited by a particular position and the pursuit of a particular outcome, they are free to undertake more expansive and holistic analyses which can consider issues from all angles. Academia builds understanding and legal discourse, which is itself a cornerstone of a healthy legal system. The comments of academics can often be just as persuasive as any case law, if used skillfully, and many a judge has referred with approval to such secondary sources.
Of course, the lifeblood of academic expression is the journal. This blawg reviews the Criminal Law Edition of the Manitoba Law Journal, (2018) 41:3. The present issue collects papers covering a wide range of topics, from developing jurisprudence and issues of evidence, to challenges faced by Indigenous persons in the justice system, to issues of the law and sex work, and more. Some present the outcomes of studies conducted by the authors, while others construct legal arguments. Below, I discuss some of the salient qualities of the Journal, as well as highlighting a few of the papers therein which particularly captured my own interest.
Before doing so, however, there is a preliminary matter to deal with. As stated above, publications like the Manitoba Law Journal are extremely important to the legal field, as they provide a forum for academic expression. They are also quite a chore to put together. Thus, before going any further, I think that it is crucially important to acknowledge the great amounts of time and effort that went into the making of the present volume. I have had the privilege of getting to know virtually everyone on the editing team, whether as instructors of courses that I have taken, through work on campus, or simply through sharing a class. All are very busy and involved individuals and, knowing how much they already had on their plates, I frankly have no clue how they found time to put this together. Behind every hour of time that the reader spends on the material contained in the Journal are many hours of work. So, to the editorial team, to the folks at Emond Publishing, and to the authors of the pieces themselves, thank you for your superb efforts.
On now, to the fruits of those efforts. I admit, it can be difficult to get excited about reading a law journal. Doing research over the summer, I read portions of a lot of law journals, mostly dealing with international law topics. While the contents are often interesting, they are not, generally, page-turners. However, in this regard the present issue of the Manitoba Law Journal surprised me. As I made my way through it, I found myself engrossed by the papers that I was reading; I quite enjoyed it. I think that this is a reflection of two aspects of the Journal that are very well done: the topic variation and the accessibility of the language.
The variety of topics and types of papers included in the Journal aids its readability. The Journal is divided into four substantive sections. The first looks at issues of evidence and emerging legal tests. The second examines issues faced by Indigenous persons, particularly in corrections. The third looks at issues of youth and the law. The final section includes two papers on sex work. Within these sections, the nature of the papers varies as well. Some detail studies done by the authors. Here, the focus is on explaining the hypothesis and methodology of the study, and then presenting and interpreting the results. Other papers present very focused arguments toward a specific end, such as the one by Scott Mair, which asserts the unconstitutionality of Canada’s infanticide provisions under s 233 of the Criminal Code.2 Others still, take more of a descriptive approach, highlighting the present state of affairs and the related issues. An example of this is the piece by Leah Combs on the underutilization of provisions in the Corrections and Conditional Release Act which are supposed to promote more effective corrections programming for aboriginal persons. The collective effect of this diversity is that the Journal avoids presenting the reader with similar concepts in a similar format repeatedly. This makes it easier to read because it does not feel repetitive. Many of the papers go in very different directions, making each section feel new and fresh, and avoiding monotony.
Building on the readability established by the diverse contents of the Journal, is the accessibility of the language. Choice of words is important in conveying a point, be it simple or complex. Using simple, direct, plain language can often make even difficult and abstract concepts much easier to understand. Conversely, use of rambling, technical language and an excess of unnecessary words can render the most basic idea arcane and impenetrable. Unfortunately, it has been my own experience that too many academics subscribe to the latter style. Luckily for all of us, none of these individuals have been included in the present volume of the Journal.
I found that the papers in the Journal were quite easy to follow. Even some of the more technical ones, such John Burchill’s piece on alibi evidence and disclosure issues, is eminently readable.2 This paper is a great example, as I have had no prior experience with alibi defences and the relating disclosure rules, yet the information was presented in such a way that I had little trouble following Burchill’s argument. The Journal reads clearly like this throughout. Once again, this makes the entire publication both easier and more enjoyable to read. Readers should not have to feel like Columbus, sailing off in a general direction and hoping to find an author’s point somewhere along the way. The present volume of the Journal imparts no such feeling: at all times while reading it, you know exactly where it is going.
Before concluding, I wanted to highlight some of the pieces that I found to be particularly compelling in this volume of the Journal. First up is, conveniently, the first paper of the journal: Examining How Lineup Practices of Canadian and US Police Officers Adhere to their National Best Practice Recommendations.3 The paper summarizes the authors’ findings in a study that compared the degree to which Canadian and American police follow the Best Practice recommendations handed down to them by their respective governments. I found it interesting because it sheds light on the implementation side of developing the legal system. Where police are not implementing the best practices they have been given, it raises important questions about why: are the officers themselves resisting the change, or are there unforeseen practical issues raised by the recommended practices? These are important questions that need to be followed up in order build a better legal system.
The second piece that I would like to highlight is R v Jarvis: An Argument for a Single Reasonable Expectation of Privacy Framework.4 I was a bit biased on this one, as I read and briefed Jarvis over the summer. The case, involving a teacher who was secretly filming females’ chests with a hidden camera while talking to them in the halls, just did not sit right with me. At both the trial and appeal levels, Jarvis was acquitted, for reasons that were just absurd on my own view. I enjoyed reading Ryan Mullins’ arguments for an assessment of reasonable expectation of privacy which considers the totality of the circumstances. The case is on its way through the Supreme Court now. It shall be interesting to see how they decide to approach the reasonable expectation of privacy issue. Given modern technology, especially the ease with which we can be recorded, this case could set an important precedent for the future.
The final paper in the Journal that stood out to me is Healing Ourselves: Interrogating the Underutilisation of Sections 81 & 84 of the Corrections and Conditional Release Act.5 The provisions in question were designed and implemented to help reduce Indigenous over-representation in the Canadian justice system. This paper indicates that these provisions have not been used nearly as much as they could be, and explores why. Given that Indigenous over-representation is one of Canada’s biggest criminal law issues, I think it would have been inappropriate to publish a criminal law journal without including material addressing this issue. It is difficult, it is politically loaded, but it cannot be ignored. The findings made by Leah Combs in this paper are also important because they indicate that Corrections is not just resistant to implementing ss 81 and 84, but that they are actively siphoning funds earmarked for initiatives under these provisions into other parts of their budget.6 That is a serious problem and, whether you support the content of the provisions or not, should not be allowed to continue.
Thus, we come to the end of this book review for the present volume of the Manitoba Law Journal. What this journal, and all journals, do is important to the legal field. This volume in particular is well-written, interesting and diverse; it is clearly the product of much care and effort on the part of all involved in its production. I found my interest thoroughly engaged by its contents, which address issues of significance and relevance to the criminal law realm today. To readers and researchers wondering whether to dive into this volume, I would say you cannot go wrong by doing so.
1 Scott Mair, “Challenging Infanticide: Why Section 233 of Canada’s Criminal Code is Unconstitutional”, (2018) 41:3 Man LJ 241.
2 John Burchill, “Alibi Evidence: Responsibility for Disclosure and Investigation”, (2018) 41:3 Man LJ 99.
3Michelle I Bertrand et al, “Examining How Lineup Practices of Canadian and US Police Officers Adhere to their National Best Practice Recommendations”, (2018) 41:3 Man LJ 1.
4 Ryan Mullins, “R v Jarvis: An Argument for a Single Reasonable Expectation of Privacy Framework”, (2018) 41:3 Man LJ 77.
5 Leah Combs, “Healing Ourselves: Interrogating the Underutilisation of Sections 81 & 84 of the Corrections and Conditional Release Act”, (2018) 41:3 Man LJ 163.
6 Ibid at 163.