This ad campaign…

Makes me chuckle. Don’t we all think–nay, *know*–how awesome our pets are?

It’s a contest run by a radio station–you’re supposed to write to them and explain in what way your pet is amazing. I don’t know what kind of prize they’re offering, but it looks pretty cute.

Sent from my mobile, so please pardon any typos!

The Living Tree

One of the core metaphors of Constitutional Interpretation here in Canada is that of the living tree. The idea is that we should read the Constitution in such a way as to leave room for future growth and change, while still respecting that there must be connection with past. In other words: we don’t want to freeze things in place by looking only at ideas the authors (aka “framers”) would have had at the time it was formulated–thus limiting and boxing in our rights. But we also don’t want to jump out into left field by radically departing from previous precedents. It is meant to be connected (like branches and offshoots), incremental and unified by a core set of ideas (a trunk, as it were). So, we often call the constitution a living tree, which is a lovely image.

I have, accordingly, christened the tree in front of Flavelle, between the two buildings of the law school, “the living tree”. It seemed appropriate.

Sent from my mobile, so please pardon any typos!

RIP, Nina Courtepatte

Nina Courtepatte

This little girl–13–was brutally violated and murdered. It was one of the cases we read for Criminal law and it upset me deeply. It horrifies me to imagine a young person dying in pain and fear like this. One of the first cases we read was about a young boy who was violated and killed. After he got raped by his 17-year-old attacker, he said he was going to tell his mom. And so the attacker hesitated for a few moments, then killed the little boy.

It breaks my heart to think of that little boy. He was still young enough to think that in this horrible situation, alone with this older person, he would have recourse to his mother and to the protection that would provide him.

And this girl, Nina. She was just at an age where she was wanting to try new things, take some new risks. And she took the wrong one, with the wrong people.

While I was studying for my Crim final, I kept thinking of her, lying there, afraid and not understanding, amid all the pain and the fear, why this was happening to her. They left her at the scene–a golf course, closed for the night–not knowing whether she was alive or not. She might have been there some time, in the silence and the darkness, bleeding to death, before it all ended. The thought of young people, children, dying in pain and fear, with every illusion about trust and safety and goodness in the world, lying in tatters around them, is one that I cannot get away from. I keep thinking of them and grieving for them, and for the fear and pain they must have experienced.

This haunts me. This is why I could never do criminal–though part of me wants to bear witness to such tragedies, to acknowledge this girl’s suffering. I can’t do anything to alleviate it, but can take time, to remember and to pay homage to the final moments of this girl I never knew. I had to pause during my studies, and look her up. I wanted to see her face and acknowledge her pain and her humanity, outside of the bare facts of the case and the complex turns of the reasoning in the judgment.

I hope you are at peace, Nina Courtepatte. What happened to you should never have to happen to anyone. It is incomprehensible, tragic, horrifying.

CBC News – Canada – New trial ordered in Courtepatte killing.

Tort Law Part III: The Fundamental Question

This is part III of the series on tort law. For parts I (context and background) and II (basic ideas of Tort law, the Weinrib edition), please scroll down to read the earlier posts in order.

As an undercurrent to the specific questions relating to the mechanics of working out the nature of the wrong and the wrongdoer, there has been another consideration that has provided an ongoing subtext of continuity through this past year of classes. This is the issue of the purpose behind torts itself. Why do we allow for the victim to be compensated in this way at all?

Weinrib says, we allow for recovery because a right has been breached by someone else, who had a duty, as part of society, to avoid breaching the rights of others. In other words, with a tort, someone has been wronged in a way that speaks to their fundamental rights, and therefore should be compensated by the person who committed the wrong. It is about the relationship between te parties and trying to restore the wronged plaintiff to the position he or she would have been in had the tort never occurred.

But others do not agree. Others see torts (and other areas of law) as an extension of the regulatory state. They see it as another way of promoting deterrence for certain behaviours, or of promoting other kinds of caution. Some see it as an extension of punitive sanctions, in the context of private law and compensation, rather than criminal law. Others still see it as presenting a series of puzzles about who is best situated to shoulder the burden of paying for a given act of negligence–such that it’s not just about guilt and compensation but also about who can afford to pay out, or who is better insured to do so.

These additional perspectives add further uncertainty and instability to the law itself. While the outcome of any case is never a sure thing, when you add in questions of deterrence, regulation of behaviour and other considerations to the process of decision-making that a judge undertakes, it becomes even more uncertain. Because if those are all factors that must be added to the decision, you have additional layers of variables that must be considered as influences on which way things will end.

For instance.

In the rights-based approach, tort law has a particular function and role. It is not about larger issues. It is about the relationship between the wrongdoer and the person who has been wronged, and it is about trying to provide recompense for that wrong. There is a certain analysis that needs to be undertaken. The outcome might not be assured–it will depend on a number of different facts that different decision-makers will interpret differently, and which will determine whether or not that relationship of wrongdoer and wronged can be established. In the careless driving case, what one judge might find to be careless driving–barely–another judge might find to be just barely within the scope of legitimate driving. But, once the careless driving is established, then it’s simply a matter of moving to the next step in the analysis. Ultimately, if a right is found to have been breached, then compensation is awarded. This can be a harsh standard, sometimes, and can feel wrong of unfair, because it feels like other factors should come into play.

With approaches that look to other factors, it’s not just about different interpretations of the facts and how a judge might read those facts and determine whether there was a wrong–though the reading of the facts will still be a factor. But it will be the first of several.

There will also be the question of what the judge considers to be the role of tort law–and indeed, of the common law and the courts in general. If he wants to deter careless driving, and feels that tort law is a good place to do it, then he might be more likely to have a strict standard for what comprises careless driving. If he feels that torts are about who is best positioned to compensate the wrongs, he might look to who has the better insurance policy–the victim or the driver (it may sound like a peculiar perspective, and yet there’s a case by the Supreme Court–not about driving, but rather on more complex issues that weren’t necessarily cut-and-dried–in which the outcome seemed to hinge in large part on who was best positioned to pay for the loss). Even if the driver was careless, perhaps a finding that will allow the victim to get a higher payout from his own insurance will be construed as the more just outcome, because the victim would be better compensated.

Of course, that would wreak hell with the precedent, but might allow for what is ultimately an outcome that is kinder to the plaintiff. In other cases, policy issues and considerations allow for an outcome that “feels” fairer. So, how does this work?

An example (from Miller v. Jackson, an English case):

A woman moves in beside a cricket field so that she has a lovely green space to look out over from her back yard. The problem (not unforseeable): cricket balls sometimes fall onto her property. The cricket club always repairs any damage, but she feels she can no longer enjoy her garden. So, she files suit and asks for an injunction to stop them from playing cricket there–even though she chose to move there because it was beside the cricket field, and even though they have been playing cricket there for 150 years. What would be a just result?

A policy-based approach might bring into play factors like what might happen to the sense of community, if the cricket club were shut down. What would the young men do, without this harmless way to blow off steam? Is it fair that this woman can move in, knowing and planning to benefit from a certain byproduct of the cricket club, while refusing to put up with another, less welcome byproduct? Should she, given that, be allowed to shut down the club?

The rights-based approach is rather different. It says, Mrs. Miller has the right to the use and enjoyment of her property. The cricket club has the same right. But they do not have the right to interfere with Mrs. Miller’s use and enjoyment of her property. So long as they can contrive to keep the cricket balls on their own property, they can play. But if this is impossible, then they are impinging Mrs. Miller’s right. The only way to prevent that is to stop playing there (shut down or move). Simple as that. Seems unfair in one way, and yet, is one property owner more important than another, such that he can take away the right of his neighbor?

If you answered “yes” then you’re probably in the purposive/policy-based camp. You may be thinking along the lines of larger benefits (if the many benefit, then maybe taking away Mrs. Miller’s right is justified in favour of the greater good). If you answered “no” then you’re a rights-based thinker.

Next up: a brief discussion of Canadian Constitutional law, and some of its core tensions and issues.

My likely-not-legally-binding-but-what-do-I-know? disclaimer.

Tort Law Part II: Some Basic Ideas

To get the background on this post, please scroll down to Part I.

Ernest Weinrib has a beautiful, elegant system to apply to tort law, which allows the analyst/lawyer to extract key elements and come to a finding. There are still ambiguities, of course, but these are often relating to the evidence–not to the question of what to do with that evidence, once it is available (other schools of thought would debate that question, as a separate issue). Before elaborating on the system, I should mention that this is, of course, my own imperfect understanding of his view–and may be filled with my own misconstructions of his theory. So if you’re really curious about Weinrib’s torts, be sure to go to the source: his book, The Idea of Private Law, which I haven’t actually read in its entirety (too busy with classes, school and assigned readings!).

The main idea that he advances is that we all have rights. The right to our own physical integrity. The right to the use and enjoyment of our property. And so on. A tort comes into existence when one of those rights is breached by someone else (Weinrib’s more technical way of putting it would be along the lines of “When the tortfeasor breaches the duty that is correlative to the right of the person who has been wronged.”). So, figuring out whether a wrong has happened–whether there was negligence, for instance, rather than just an unfortunate accident for which no-one is responsible–is a matter of working through the elements of the relationship between the potential tortfeasor (who may have been negligent, or who may have been helpless to prevent the wrong) and the injured person.

This process (in Weinrib’s system–not that of others!) basically involves looking to see if the potential wrongdoer creates an unreasonable risk (e.g. driving recklessly). It then involves an analysis of who would be put at risk as a result of the negligent act (others in the car, others on the road, potential pedestrians), and an analysis of what the likely harm or outcome would be if that risk were to manifest as a harm (the vehicle getting into an accident and causing injury to any of the people listed). The final step is to see whether the actual harm (and you have to have actual harm in tort–you can’t sue someone for just being careless, if you didn’t end up getting hurt by that carelessness) manifested within the scope of the risk that was created.

So, with the above scenario, if someone is driving carelessly and gets in an accident, injuring the occupants of another vehicle involved in the accident, that’s a tort. The injured occupants can sue–and will likely win compensation (though much of this is now regulated by insurance–but for the purposes of this example, let’s pretend we’re in a world where there isn’t insurance, heaven forbid).

BUT, if someone is driving carelessly, and as a result, something that he didn’t even know was in his back seat were dislodged and flew out of his window, hit another car and caused it to get into an accident, recovery might not be as likely–because you can argue that the kind of risk generated by careless driving isn’t that something will fly out of your window and hit someone else, causing an accident. So this second scenario would be open for debate.

The third scenario is at a further remove. What if that dislodged item–say, some kind of firecracker that the driver knew nothing about–were to somehow be ignited as a result of his careless driving, fly out of his open window, and hit a statue a block away, which then fell and injured someone (law students will recognise some elements of Palsgraf, a landmark tort law case, in this scenario)? It is even less likely that the injured person would be able to recover. Why? Not only is this something that is well beyond the normal scope of risk created through careless driving, but as well, the person put at risk is outside of the scope of those to whom the careless driver could ever imagine would be endangered by his acts. The people whom you can reasonably imagine would be endangered by reckless driving are those in the vicinity of the vehicle–and does not include someone a block away, and completely outside of the driver’s contemplation.

So this is the idea of torts. Of course, it’s often not as straightforward as any of that–for instance, there can be multiple careless drivers, all of whom are negligent to some degree, who cause an accident and injure someone. With many people contributing to the wrong, who can the injured person claim compensation from? These–among many–are the questions raised by torts.

To be continued in Part III, tomorrow, when I will turn to one of the fundamental questions raised by the concept of tort law itself–namely, what is its underlying purpose?

My likely-not-legally-binding-but-what-do-I-know? disclaimer.

Tort Law Part I: The Weinrib Edition

At University of Toronto, the first year program isn’t all dauntingly vast classes, with the instructor standing up at the front, frowning at seating charts, choosing random students to be called upon through the year and otherwise delivering pithy and acerbic insights from the podium, a la “Paperchase”. Indeed, it should be said that even in those classes, it’s not super daunting, and there’s a lot of openness to participation, questions and discussion during lectures.

At any rate, at the uni, one of the six core classes that the first years get is actually in a small group setting. Different people are in different small groups for different subjects. I was lucky enough to be in Ernest Weinrib’s torts for mine. It has been amazing, and I’m genuinely sad that this class has come to an end.

Twice a week, we have met in a room in the elegantly dilapidated old house that comprises one of the two buildings of the law school. We have sat around a heavy, carved table in dark wood, on heavy, dark wood chairs that are a mishmash of styles. High ceilings, accented by carved cornices, above, and an elaborate fireplace at one end of the room. From where I sat, I could see one of the trees just outside the house, in what would have been the side yard, years ago, when this was still a dwelling. In September, the morning sun slanted through the green, nodding leaves which mellowed into autumnal shades as the year advanced. For the last months, the sun has been largely unencumbered and bright, slanting through bare branches, which are just now starting to grow nubby with buds. The room itself has been retrofitted with heaters that can be absurdly warm, or shiveringly inadequate, because the settings can’t be adjusted per room, but must serve for the entire house. It’s an idyllic, old school setting, and a wonderful backdrop for learning the basic tenets of a legal system that has offered recourse to litigants for hundreds upon hundreds of years–an apparatus belonging to one of the foundational cornerstones of our civilization: justice.

Ernest Weinrib himself, is an amazing instructor, and extraordinarily kind to us students, who often come forward with flawed and flailing arguments. Make no mistake–he will dissect that argument with a surgeon’s precision, and leave its organs scattered across the table by the end of his analysis. He does not spare the arguments. But he does it in a way that doesn’t embarrass, demean or denigrate the student.

So that was the classroom experience for me and 15 or so other 1L students this year–as well as countless others no doubt, in previous years.

One of the best things about Weinrib’s torts is that he has a paradigm through which they make some kind of sense. It is a controversial one, and one that has not been adopted by many–including the Supreme Court of Canada. But it means that as a student, tackling a daunting subject, there’s something to help parse through the messiness of the topic.

So, what are torts? If you know French, the word itself gives you a hint: they’re wrongs, visited upon each other. Those who have been wronged sometimes choose to seek compensation for their injuries, through the justice system. The instrument for seeking that compensation is tort law.

When someone slips on a patch of ice in your driveway, which you hadn’t cleared away, that’s a tort. It’s a private lawsuit, between private parties–rather than something like a criminal trial, which doesn’t provide compensation for the victim, but instead just metes out punishment to the wrongdoer.

They can also be extraordinarily complicated and messy–because life is messy. There isn’t always one wrongdoer–sometimes there are several. So torts deals with how to approach and pick apart that complexity, in order to decide who committed the wrong–or at least, the wrong that is big enough to require compensation.

To be continued tomorrow, with an introduction to some of the basic ideas behind tort law: the Weinrib Edition.

My likely-not-legally-binding-but-what-do-I-know? disclaimer.

Three exams down…

Three to go. This past week has been hellish busy and frantic and stressful. No question. The exams have been difficult and every student (except the top one or two) has left the exam hall, alternately complaining about how much they missed on it, and how much they spotted but just didn’t have time to work on and develop.

I ended half–possibly 3/4s–of my answers in point form, because I just didn’t have time to touch on everything in the questions and fact patterns.

And I have no way of knowing how I did. I know I missed a lot. I know my analyses were flawed or not as methodical as they could have been in many cases. I know many of the points where they fell short and have a strong sense that there are many other points where they fell short that I cannot even guess at. But what I don’t know is how this stands up to the analyses of my classmates (who, in turn, see their own shortcomings, but those might have been far less significant–or far more significant–than mine).  I also don’t know to what standard I will be marked, by the profs. How kind will they be, in giving me points for the ideas that I did cover, and the analyses I did do? How harsh will they be in docking me for stuff I missed?

And so, I have no idea how I did.

But what I do know, and actually have loved about this process–flawed and frustrating though it can be–is that stuff clicked. Sometimes the night before. Sometimes the morning of the exam. And sometimes right during the exam itself. Pieces started assembling and coming together and a sense of the larger picture of how things fit together began to emerge. And that is the true reward of the exams. And so, I’m taking a few minutes to talk about that now, while it’s still fresh in my mind. And also, I’m choosing to post this now because in a few weeks, when the marks come in, if I do badly, I might forget about this particular reward of exams. I might just be overwhelmed by disappointment in my relative performance in them to remember.

Over the next couple of days, my posts will be about the three subjects I wrote on this past week: Torts, Constitutional and Admin law. In the days after that, as I have the time, I’ll try to do similar posts on Contracts, Property and Criminal law. This is to remind me, should the memory fade, of what those insights were, regarding each of these subjects. Stay tuned….