QUID NOVI
Vol 44 No 07 22 Nov 2022
NCDH 305 - 3644 Peel Montréal, Québec H2A 1X1
quid.law@mcgill.ca @quidnovi.mcgill
McGill University Faculty of Law Faculté de droit de l’Université McGill
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EDITOR-IN-CHIEF RÉDACTRICE EN CHEF Anna McAllister ART DIRECTOR DIRECTRICE ARTISTIQUE Hanna Rioseco LAYOUT EDITOR ÉDITEUR DE MISE EN PAGE Ezequiel Indriago Perez COPY EDITORS SECRÉTAIRES DE RÉDACTION Roxanda Mirzac Thomas Power Marie-Ève Ouellet COLUMNISTS CHRONIQUEURES ET CHRONIQUEUSES Meg Beattie Alanna Molzhan Pablo Mhanna-Sandoval CONTRIBUTORS TO THIS ISSUE COLLABORATEURS ET COLLABORATRICES David Nyarko, Nywani Albert, Rachel McKenzie, Nicolas Kamran, Song-Ly Tran Special thanks to Prairie Koo for designing the layout. ~ The Quid Novi is published weekly by the students of the Faculty of Law at McGill University. Production is made possible through the direct support of students. All contents copyright © 2022 Quid Novi.
Les opinions exprimées sont propres aux auteurs et ne réflètent pas nécessairement celles de l’équipe du Quid Novi. The content of this publication does not necessarily reflect the views of the McGill Law Students’ Association or of McGill University. Envoyez vos commentaires ou articles avant jeudi 17h00 à quid.law@mcgill.ca. Toute contribution doit indiquer le nom de l’auteur, son année d’étude ainsi qu’un titre et un sous -titre pour l’article. Les images doivent être soumises séparément. L’article ne sera publié qu’à la discrétion du comité de rédaction, qui basera sa décision sur la politique de rédaction disponible sur notre Facebook @quidnovi.mcgill.
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QUID NOVI
CETTE SEMAINE...
INSIGHTS
COMMUNAUTÉ
2 | LETTER FROM THE
3 | BLAST FROM THE PAST
2 | MEET THE TEAM
8 | QUIZ: WHAT SHOULD YOU DO ON YOUR NEXT STUDY BREAK?
4 | SAVING THE POLICE BLSAM RESPONSE
9 | SIGNS YOU SHOULD TAKE A QUICK BREAK FROM STUDYING FOR EXAMS
EDITOR
Roxanda Mirzac, Copy Editor
6 | LETTER TO THE EDITOR On “Saving the Police”
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Vol 44 No 07 22 Nov 2022
7 | IN RESPONSE TO SAVING THE POLICE 9 | CTRL F 11 | MISCHIEVOUS AND MERITORIOUS
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Vol 44 ● No 07
LETTER FROM THE EDITOR
MEET THE TEAM Copy Editor Roxanda Mirzac
Dear Swifties, It may not have been a Cruel Summer, but it is certainly turning into a cruel fall. As I am sure you’ve heard, the public sale of Taylor Swift’s historically anticipated Eras Tour has been canceled due to overwhelming demand. Ticketmaster, a company that’s sole purpose is to sell tickets, was unable to keep up with the 2.4 million + swifties who were starving for tickets this week. Those who were able to get tickets reported waiting online for hours and being confronted by Treacherous ticket markup prices. It felt like a Hoax. The situation was so dire that American politicians felt compelled to Speak Now and draw attention to Ticketmaster’s extraordinary monopoly that has left artists with seemingly no other choice than to sell through their service. Why do I bring this up you may ask? For two reasons. First, This Is Me Trying to get this bad news out there at the top of this week’s Quid so that we can move on and enjoy the incredible articles our colleagues have prepared. Second, I want to highlight that if Taylor Swift’s actions provoke American politicians to react, my ongoing commentary on Taylor Swift that I have peppered throughout the Quid for the last year is certainly newsworthy - even if it’s Nothing New. While we may not have been the Lucky Ones this time around, I am sure that once the calendar turns Back to December we will have dreams of Christmas Tree Farms that will distract us from our plight. Tis The Damn Season after all, and these are but Champagne Problems as much as I hate to Tolerate It.
QUID NOVI • 22 NOV 2022
So it Goes… Yours in swfitie solidarity, Anna P.S. If any of you is a Mastermind who discovers a Glitch to get tickets, please let me know.
OVERHEARDS 3L: “What is up with 2Ls and going to karaoke?” In the atrium from a table of 1Ls: “All I have to say is that they made the Grinch a morally gray character.”
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Quel était ton cours préféré avant de commencer à la faculté de droit? Au cégep, mes cours préférés étaient les cours de psychologie, d’histoire et de philosophie. C’est alors que je me suis trouvé une passion pour les études interdisciplinaires. Vous remarquerez que ces sujets se retrouvent encore aujourd’hui dans mes réflexions, même celles juridiques. Was law school a dream come true or a happy accident? Do you want to be a lawyer? Étudier le droit a été mon rêve de jeune fille quoiqu’en grandissant je ne croyais pas que j’y serais destinée. À vrai dire, lorsque je me suis finalement inscrite en droit, je n’étais toujours pas certaine de savoir ce qu’était le droit. Par contre, avoir suivi mon intuition s’est avéré gagnant; j’adore les études en droit! Qu’aimes-tu faire quand tu n’étudies pas? Je me réserve quelques heures à chaque fin de semaine pour faire de la randonnée. Également, je ne peux finir ma journée sans m’être abandonnée au moins quelques minutes à un bon roman. N’hésitez pas si vous cherchez des recommandations de lecture ou de randonnée!
BLAST FROM THE PAST What do the stars have in store for you? Check out this submission from 2000 to find out! Side note, where do I get 49 cent pizza?
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Vol 44 ● No 07
SAVING THE POLICE – RESPONSE BLSAM David Nyarko ,1L | with research and editorial contributions from Nywani Albert, 2L | Rachel McKenzie, 2L
In the last issue of Quid Novi, an article written by a member of the 1L cohort was published titled “Saving the Police.” Several members of Black Law Students Association of McGill, with collaboration from allies at the Radical Law Student Collective, feel compelled to issue the following response. 1. The presentation of Abolitionism is flawed. Abolitionism is neither about crime prevention nor is it rooted in particularism, two false assertions the article makes. Abolitionism was a political movement born out of anti-slavery initiatives in the 18th and 19th centuries. Penal abolitionism, which focuses on mass incarceration and state-sanctioned violence against Black people, is a subset of the movement pioneered by Angela Davis, Ruth Wilson Gilmore, and others, in the late 20th century. While there are certainly connections between slavery in the Americas, the rise of modern policing, and the prison industrial complex, they are reductively misrepresented in the article. Defunding the police is a call to action that emerged as a response to the police violence and unsanctioned killing of unarmed Black citizens in the U.S. The movement to divest our communities from the police exists along a spectrum, with most demands centering around reallocating police budgets that have been drastically inflated with little corresponding crime reduction.
QUID NOVI • 22 NOV 2022
Conflating abolition and defund-the-police, two distinct concepts and calls to action leads to incoherence. 2. The article attributes a rise in violence (particularly murder rates) to policy decisions that were enacted to reduce police funding. What the article fails to take note of is that the recent rise in violent crime has been largely a function of the pandemic. According to the Brennan Center for Justice, an independent, nonpartisan law, and policy organization, rising crime rates are predominantly attributable to: a record increase in gun sales in the United States, unemployment (particularly in the service industry and gig economy), post-pandemic recession, trauma, mental health issues exacerbated by the pandemic (including inequality in accessing community resources and public health resources), and a decrease in adequate physical infrastructures 4
like green spaces, parks, public pools, and community spaces, which are all environments linked to public health and safety. Furthermore, statistics actually indicate that violent crime rates are decreasing. The post-pandemic surge in violence is a unique phenomenon when considered in the context of crime rates over the last sixty years. This cannot simply be explained away as a result of “de-funding” policies. It is also worth noting that despite increased police budgets in major Canadian cities, including Montreal, violent crime rates have not significantly decreased. Thus, linking police defunding to a spike in violent crimes, namely homicide, or linking falling crime rates to larger police budgets, is a complete misrepresentation of the facts that lacks any legitimate causal link (see Koenig’s 1991 publication for the US Department of Justice: “Findings suggest that increased levels of per capita police strength precede increased crime rates, rather than being a response to increased crime rates”). 3. The article presumptively and inaccurately links violent crime to the absence of police presence. Economic, social, and institutional factors are the primary predictors of crime. Contributing factors include wealth inequality along with a social control model of crime reduction that chooses to deal more punitively with crimes of the poor rather than those of the rich (National Council of Welfare, 2002). A complex mosaic of indicators predicts crime – not just poverty, as the article suggests. Admittedly, the discussion of poverty seems to be a conscious effort by the author to contextualise his claims about crime; yet, these explanations fail to consider the structural inequalities that characterise extreme poverty. The federal government of Canada has acknowledged systemic racism within law enforcement agencies at all levels (for example a 2021 report by the House of Commons Standing Committee on Public Safety and National Security). To argue that the SPVM does not over-police certain segments of the population when their own reports establish a 4-to-5-fold higher rate of police interventions (Armony-Hassaoui-Mulone report, 2019) among Black and Indigenous peoples is unfounded. Increased police presence is not determinative of
safer communities; rather, it is determinative of an increase of Black and Brown bodies in the carceral system for low-level crimes. Crimes for which white offenders do not receive the same consequences when ostensible “discretion” is used by the police. “Higher police surveillance, it is maintained, renders Black offenders more vulnerable to detection and arrest than White offenders who engage in exactly the same activities.” (Wortely and Jung, Ontario Human Rights Commission, 2020). Indigenous and Black people are overrepresented in our criminal justice system not only because of systemic discrimination limited to the criminal justice system, but also because of similar systemic discrimination permeating healthcare, education, housing, and employment (Department of Justice, 2022; Canadian Civil Liberties Association, 2021). These factors are interlocking and reinforcing. The author ’s suggested quick fix to “improve education and tackle poverty” dismisses the opaque and complex nature of existing structural inequalities. It simply cannot be considered a credible or substantive strategy. Further, the argument attributing an increased likelihood of criminality among racialized individuals to ‘poverty’ is flawed. In multiple instances, the author mentions organized crime to prime a discussion about racialized individuals and prison overrepresentation. However, in the Quebec context, it is simply the case that the overwhelming majority of organized crime is not committed by racialized Quebecers. The most notorious organized crime syndicates with the most blood on their hands are the Italian Mafia, the Irish Gang-West End Gang, and QC Motorcycle Gangs (Schneider, 2009). These crime groups have the resources to bribe police officers and traffick weapons/drugs across US-Canadian borders (for more info see: Quebec Biker War, Carcajou squad and Operation SharQc). To link organized crime to poverty in racialized communities is to tell a misguided and limited story. And it fails to acknowledge that while people from all levels of society commit crime, crime enforcement services and surveillance are concentrated in certain neighbourhoods more than others. 4. Lastly, we take issue with the article characterising police officers’ primary duty as one of community protection. To say this is to ignore the perspective of Canada’s Indigenous peoples, Black Canadians, visible minorities, and the unhoused. In reality, the police were not designed for that purpose. It is more accurate to characterise their purpose as enforcing the law, apprehend-
ing criminals, and intervening as first responders. The police are a social control mechanism with a monopoly on violence and punishment to maintain ‘order’. Their very inception in Canada was meant to control the movement of Indigenous peoples so that European settlers could benefit from freedom of movement using railroad infrastructure built by Chinese migrants (Monchalin, 2016; Wong and Bates, 2020). Countless historical facts attest to this, not the least of which is the RCMP’s origins as colonial agents facilitating Western expansion (a fact acknowledged by the RCMP’s own historical timeline on the government of Canada website). The article states that “it would also be irresponsible to proclaim that the Montreal police force is “over-policing” ethnically-diverse neighbourhoods. Organizationally, it does not allocate resources according to a “color” lens: it supplies officers proportionally to population density.” This statement is an affront to the notion of substantive equality, and misunderstands the reality of the situation. The words and policies of the police are not the only litmus test to evaluate their effects in the community. No publicly-funded institution is immune from critique. Knowing that the SPVM’s own aforementioned reports indicate increased police interactions with Black and Indigenous Montrealers and considering how these institutions have historically worked to perpetuate systemic oppression, it is important to look beyond “colour-blind” policies to see how these policies affect the communities police ostensibly serve. “Population density” is a shortcut for legitimising the over-policing of racialized peoples. Turning to the U.S., the history of welfare spending speaks volumes. In the post-war era, social spending, programs and fair housing policies were used to increase the white upper-middle class (for more information, see President Hoover and President Roosevelt’s policies on housing and wealth building for the middle-class, G.I Bills, and VA Benefits, all of which largely excluded Blacks and other visible minorities). Shortly after, spending on law enforcement increased, primarily to target black communities under the guise of a war on drugs when employment was at an all-time low. As a result, the prison population (which in the 1930s consisted of 70% Whites) became 70% Blacks and Latinos in the 1990s. Communities that were excluded from receiving social benefits, redlined, and forced into ghettos became hotspot crime areas by design. Should the author wish to make any reference to over-incarceration, these historical facts must be understood. The author speaks about poverty but completely disregards the process of 5
Vol 44 ● No 07 poverty creation in settler colonial states. In light of the aforementioned statements, the opinion article titled ‘Saving the Police’, simply lacks any sensible, credible, or reasonable discussions about crime, policing, and criminal justice policy. The article states: “In academia, I feel a profound discomfort when, in search of the truth, we are provided with only one viewpoint and not its opposite. Criminal justice classes are a perfect example.” However, as several fellow students in the author ’s criminal justice class have pointed out, this class does not in fact push a defund or abolition agenda. The following is a translated quote from the syllabus:
QUID NOVI • 22 NOV 2022
“This course will introduce principal notions of substance, procedure, evidence and sentence in criminal law, paying particular attention to the complex concept of criminal responsibility and to the formal and informal sources of law, including the exercise of police discretion [...] Ultimately, this course will analyse the social impact of criminal justice, with particular attention to the influence of race, socioeconomics, gender, indigenous peoples, ethnicity, and power in the exercise and administration of criminal justice.” Merely engaging in nuanced critical pedagogy, as the course purports to do, does not equate to pushing a dominant abolitionist agenda. Furthermore, McGill Law students are already familiar with the status-quo justifications for the police. There are countless outlets for this perspective. Criminal Justice courses are an opportunity to amplify the voices of those who question the way policing has disproportionately impacted certain communities. Creating space for these perspectives serves to correct an imbalance in the discourse that has persisted for centuries in our settler-society. Finally, the article concludes with: “In our ivory tower, it is also our duty to thank the public servants who work day and night to protect us, make our streets safe, and respond to injustice.” It is surely not the duty of students and academics to thank the police – it is our duty to interrogate systems and institutions beyond merely their stated goals and, in turn, hold them accountable. *****
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LETTER TO THE EDITOR On “Saving the Police” Nicolas Kamran
Was anyone under the impression that the devil needed more advocates? I understand the temptation towards provocation, and there are certainly worse things to spark than debate. However, it has been my experience that law students tend to loathe those who insist on raising controversial ideas for the mere sake of argument. This is especially true when students treat sensitive topics, which may have real and painful implications for those in class, as an opportunity to demonstrate self-assured argumentative prowess over their interlocutors. I tend to share this generalised irritation with devil’s advocacy, and I think that much of what initially bothered me about last issue’s “Saving the Police” flowed from this visceral feeling. But I do not think this piece was an attempt to play devil’s advocate—though there is certainly a tone of this over being taught “one viewpoint and not its opposite.” My real issue with this article is its sore mischaracterisation of “abolitionist theory.” I do not want to take up any further space in this comment, but I have a proposal for the author: Next Quid hangout, let’s talk. You seem to value free inquiry into the truth—but I think that you are perhaps receiving faulty information regarding the topics on which you write. I was a Criminal Justice group assistant last year, and it would be my genuine pleasure to cover these issues with you in greater detail. I would also hope that you could go to your professor with your concerns about the class and more general questions about the purpose and practices of policing in Montreal. Naturally, I propose you this while disagreeing with nearly everything you said. I hope that you will not mind conversing with one of those abolitionists.
Yours in solidarity, Nicolas Kamran
IN RESPONSE TO “SAVING THE POLICE” Alanna Molzahn | 2L
An article published in last week’s edition of the Quid criticized academia for not being nuanced enough in its discussion of criminal justice. According to the author, there is too much focus placed on abolitionism, and not enough focus on the so-called importance of the police. I, personally, am a big fan of nuance, but I am also a fan of accurately presenting information. Abolitionism, as it pertains to the police and the carceral system, is a recurring topic in criminal justice discourse because many view it as the only means to dismantle a system of oppression that is predominant. We criticize the police because they are complicit in white supremacy. Quite simply, it is irresponsible to advocate for “saving the police” without first understanding how crime and policing work. Crime is a complex social phenomenon that is not accurately represented in the media, leading to misunderstandings about the nature, frequency, and severity in crime. It is important to first understand that there is a “dark figure of crime,” meaning crimes that go unreported. Reported crime depends on which crimes get attention. The John Howard society provides the example of a 700% increase in child pornography crimes since 2008. These numbers are most likely the result of increased police attention, rather than a huge increase in crime. Homicides rates are generally accurate, as it’s generally noticeable when someone disappears. Sooner or later a body turns up. However, it is misleading to compare homicide rates between 2021 and 2020 in an attempt to support defunding the Austin, Texas police increased crime. There is a much better explanation for the difference, and that is COVID-19 lockdown, and the subsequent lifting of restrictions. Crime is also socially constructed, and it is possible to change societal conceptions of what is and is not a crime. For instance, in 2018, the government legalized the production, distribution, and legalization of marijuana. We are also seeing a push to decriminalize possession of other drugs. Possession accounts for 55% of all adults charged with drug offences, so decriminalizing possession would drastically change who is and who is not considered a criminal. Finally, it is frankly incorrect to say most violent crime is committed by organized criminals. First, definitions of organized crime vary, but I have a sneaking suspicion the author was referring specifically to gang violence (because he then goes on to make claims about gangs that aren’t entirely current). Second, while there were over 2 million police-reported Criminal Code incidents (excluding traffic violations) in 2021, 10,227 were linked to organized crime (includes violent and non-violent
crime, and 139 traffic violations). It is worth noting Statistics Canada did not define organized crime. And now to the police. The police in America originated from Slave Patrols; in Canada, the RCMP originated from Indian Agents. Since its outset, policing in North America has been intrinsically linked to white supremacy. As Angela Davis said in an interview with Al-Jazeera, “you can’t study the history of the police without studying the history of racism.” The police play a key role in producing and reproducing racism, often by discriminatorily exercising their discretion when deciding whether to stop, arrest, or criminally charge someone. It is also very possible that police are unconsciously applying their bias, but regardless of intention, the result is the same. I also could not write this article without mentioning the police propensity to murder Black people – there are simply too many victims to list all their names. In case Canadians are feeling superior, let me remind you of “Starlight Tours,” in which police officers would arrest Indigenous people (usually men), drive them to the outskirts of the city in winter, and leave them to freeze to death. To those who insist we need police to maintain the safety of our communities, whose safety are you really concerned with? Angela Davis frames defunding the police as “a call to imagine new ways to guarantee the safety and security of our communities.” Reallocating resources to other institutions to address the root causes of crime and lessen economic and social inequality would do more for community safety than the police ever have. Abolition is a process, and we will learn on the way what works and what doesn’t. However, law enforcement, as it stands, is clearly something that is not working for our society. I am not even mentioning prison abolition, which is also something we need to work towards (to learn more about the problem with our carceral system, I recommend Michelle Alexander’s The New Jim Crow). It is important to think critically about our institutions, and in doing so, we will often reach conclusions such as “we need to defund the police’’ and “prisons do more harm than good, maybe we should get rid of them too.” Anti-policing discourses also aren’t inherent to academia. In fact, the academization of revolutionary discourses may actually hinder social change, as the thinkers and ideologies may become trapped in their ivory towers (that is not to say researching a phenomenon is bad, but social change also needs to engage people who often don’t have access to academia). Sometimes there are correct and incorrect conclusions, and it is simply incorrect to say that we should save the police. 7
Vol 44 ● No 07
QUIZ: WHAT SHOULD YOU DO ON YOUR NEXT STUDY BREAK? Meg Beattie | 3L
QUID NOVI • 22 NOV 2022
Tally your score and get your results on the last page!
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SIGNS YOU SHOULD TAKE A QUICK BREAK FROM STUDYING FOR EXAMS Pablo Mhanna-Sandoval | 1L
As exam season approaches, some law students may experience seemingly random thoughts and feelings inadequately explained by astrology or the Quebec Civil Code. While I’m no psychologist, it’s uncontroversial to say that underlying and unaddressed emotions often manifest indirectly in our day-to-day. This is doubly true for law students, who are short on free time to sit with their feelings. For the Quid readership’s convenience, I’ve put together a brief compilation of signs that you should toss another fifteen-minute break into your study schedule as a preventative measure. You may be having a rough time preparing for exams if you’ve googled “how to become an actor” three times this week. Bonus points if you’ve searched for lead roles in legal dramas. If you’ve asked a friend if there’s a job out there that’s just walking around with friends while drinking coffee—“like a professional café hopper?”—it’s time to take a break from studying. Maybe go for a coffee break with a friend!
CTRL F anonymous
Les examens arrivent à toute vitesse, La bibliothèque ne désemplit plus, Rares sont ceux qui ne tombent pas dans le stress, Tristement, beaucoup de textes n’ont pas été lus. La première neige apparaît à la fenêtre, Mais la saison de Noël paraît lointaine. Il faudra d’abord lire la doctrine jusqu’à la dernière lettre, Avant d’attraper les skis et d’enfiler les mitaines. Malgré leur nervosité et leur solitude, Les étudiants de droits ont un ami à leur côté. Sans lui leur effort serait d’une toute autre magnitude, Et l’importance de cet ami fait l’unanimité. Ce camarade que nous ne remercions pas assez, Que nous appelons à l’aide quand nous sommes mal pris, Et qui jamais nous laisse tomber, Je parle de la commande « Ctrl F », vous l’avez compris.
If you’ve gone for a coffee break four times in one morning, consider switching out the subject you’re studying for and leaving it for another day. If it’s late November and you’re dreaming of the holidays, put on some Christmas music while you walk to Chancellor Day Hall. Michael Bublé and Mariah Carey certainly add magic to a snowy commute. If it’s mid-December and you’re dreaming of the holidays, stay away from Christmas music, put your head down, and cram. You’re too short on time for daydreaming. If you find yourself drinking before noon on the weekend with friends, stop it. The legal profession may have a disproportionate substance abuse rate, but you only earn the right to contribute to this statistic once you pass the bar. This is far from an exhaustive list of signs you may need to take an extra long break from studying for exams. Whatever your approach, be sure to reach out to colleagues and loved ones to check in on how they’re doing. It’s a stressful time of year, but it can be made more manageable by looking out for those around us. Try it. Share this column with a friend and encourage them to follow my Twitter account—you should follow it, too. lawjournal.mcgill.ca/podcasts Just an idea off the top of my head, just something to try out. Happy studying. 9
Vol 44 ● No 07
MISCHIEVOUS AND MERITORIOUS MEDDLING Song-Ly Tran | 2L
QUID NOVI • 22 NOV 2022
It is the instinct of some and a temptation for many to meddle, prod, butt in, stir and stick our noses into the affairs of others. While these practices may be frowned upon and reprimanded in social settings, the law has, in a certain capacity, punished perpetrators of these acts since the medieval times. As opined by Pratt, C.J. over two hundred years ago, “there is nothing in nature but may be an instrument of mischief.” 1 Indeed, an infinite variety of torts may be birthed and morphed by the changing circumstances of life. Endless intrigue! So, when a professor of mine invoked a trio of somewhat obscure torts grounded in abuse of process and findings of improper motive styled as “officious intermeddling” or “stirring up strife,” 2 I was inspired to assemble a few highlights from their joint evolution. These are the torts of maintenance, champerty, and barratry of which I shall primarily discuss the first two. This is certainly not the beginning but here I shall begin. In 1305, the Statutum de Conspiratoribus (the Statute Concerning Conspirators), was enacted under King Edward I (‘Longshanks’) of England wherein “all pleaders, apprentices, attornies, stewards of great men, bailiffs, and any other of the realm, who shall be attained of taking for maintenance or the like bargain any suit or plea against another, shall be imprisoned for three years and make 1 Chapman v. Pickersgrill, [1799] 95 ER 734. 2 McIntyre Estate v. Ontario (AG), [2002] CanLII 45046 ONCA at para 27.
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fine at the King’s pleasure…” 3 thus providing criminal and civil remedies for maintenance, defined as “a taking in hand, bearing up or upholding of quarrels and sides, to the disturbance or hindrance of common right.” 4 Essentially, the maintainer, motivated by an improper motive described one way as wanton intermeddling, involves himself in disputes or dispenses assistance to one party without justification or excuse. 5 By the same token, the champertor is he who, necessarily conspiring with another, receives a share of the proceeds borne from a fruitful collaboration. 6 Barratry is a more egregious form of champerty where harm to a third party is intended. 7 At the time, wealthy and influential persons were assigned dubious or outright fraudulent claims in hopes of playing to the court’s favor. With the success of these greed-driven endeavors, the practice became rather prevalent. 8 The statute was thus instituted to guard the purity of justice. However, not only did the “invertebrate administration of the law [make] it little more than a dead letter,” 9 those charged with enforcement were typically the worst offenders or caught in the mix as enablers whether it be members of Parliament, judges, 3 Percy H. Winfield, The History of Maintenance and Champerty (1919) 35 Law Q. Rev. 50 at 146. 4 Ibid at 131. 5 Supra note 2 at para 26. 6 Supra note 3. 7 McIntyre Estate v. Ontario (AG), 2001 CanLII 7972 (ON CA) at para 23. 8 Supra note 2 at para 19. 9 Supra note 3 at 151.
sheriffs, Justices of the Peace, clergymen, or the King himself. 10Ultimately, whether these writs were widely issued under the “Statutum” remains unclear. 11 Fast forward to around the year 1600. The law of maintenance is being leveraged to bolster the Bar’s reputation by demeaning the poor disliked solicitor as opposed to his educated and honorable counterpart, the barrister. 12 The former were depicted as “lying knaves” 13 and “vermin of the law” 14 who “like the grasshoppers of Egypt, devour the whole land” 15 by needlessly prolonging suits and launching illegitimate ones. Along with this commonly held perception was the idea that, although the inns held an increasing population of qualified lawyers, the number of calls should be limited because more would be worse and because more would mean making opportunity for social mobility overly accessible. 16 Thus, in attempts to repress what was considered an excess of pettifogging solicitors, frivolous claims, and disproportionate or utterly fictitious fees which all together burdened subjects and slandered the profession and its “juste and honest” 17 members, 10 Ibid at 154. 11 Ibid at 147. 12 J. H. Baker, Solicitors and the Law of Maintenance 1590–1640 (1973) 32:1 The Cambridge Law Journal 56 at 75. 13 William Shakespeare, Much Ado About Nothing, (1612) Act V, sc. i. 14 Supra note 12 at 56. 15 Supra note 12 at 56. 16 Ibid at 67. 17 Ibid at 74.
Parliament enacted an onslaught of statutes culminating in the 1606 Acte to reforme the Multitudes and Misdemeanours of Attorneys and Sollicitors at Lawe rendering maintenance a criminal offense and an actionable wrong. 18 However, while legislators and playgoers alike might have chortled at the phrase: “O’er lawyers’ fingers, who straight dream on fees.” 19 This statute meant to degrade the solicitor effectively granted him and his practice legal recognition for the very first time. 20 In 1897, the Ontario legislature enacted An Act Respecting Champerty. Composed of but two sections, the Act first defines champertors with words extracted from the Statutum de Conspiratoribus and, secondly, forbids and declares invalid all champertous agreements. 21 The Canadian Parliament later abolished all common law crimes in 1954. Nevertheless, one may still find an audience in the province of Ontario for claims of champerty and maintenance in tort. 22 Such was the case of McIntyre Estate v. Ontario (Attorney General) which, on account of an action to dismiss a contingency fee agreement, explains how these longstanding torts figure in today’s legal landscape. Indeed, costs of litigation have been on the rise for years and often outweigh the value of the claim. They are hardly foreseeable due to the system’s adversarial nature where inordinate effort (work) is encouraged and each side possesses the power to influence their opponents’ tab. 23 18 Ibid. 19 William Shakespeare, Romeo and Juliet (1597) Act I, sc. iv. 20 Supra note 12 at 75. 21 An Act Respecting Champerty, R.S.O. 1897, c. 327. 22 Supra note 2 at para 25. 23 Lord Woolf, Access to Justice – Interim Report to the Lord Chancellor on the
Contingency fee arrangements aim to lower the threshold of deterrence towards commencing judicial proceedings for vulnerable or middle-class litigants by shifting a significant portion of the risk to the lawyer. 24 Chiefly, under these agreements, a lawyer’s fees are only imposed on the client if the litigation is successful. O’Connor A.C.J.O. raised two concerns: (1) that a lawyer might employ unethical maneuvers to secure a win, and (2) that the client’s best interests might figure less prominently in the mind of a lawyer preoccupied with his own. 25 However, he noted that no evidence points to standards of practice having suffered from actors entering into these arrangements.26 Historically, courts would have deemed them per se champertous. Today, such a presumption would both obstruct access to justice and repress individuals or groups undertaking to have their rights defended. In NAACP v. Button, the United States Supreme Court held that the legislation passed by the state of Virginia in view of regulating barratry, maintenance and champerty did not justify prohibiting the National Association for the Advancement of Colored People from supporting litigation alleging civil rights abuses. The legislation could not justify qualifying the exercise of First Amendment rights as maliciously intended. 27 Indeed, considering the circumstances and current requirements for the administration of justice, O’Connor held that contingency fee agreements could not be held per se champertous.28 Whether legislaCivil Justice System in England and Wales (London: Lord Chancellor’s Dept., 1995) at para 22. 24 Supra note 2 at para 63. 25 Ibid at paras 51—52. 26 Ibid at para 53. 27 Supra note 7 at para 27. 28 Supra note 2 at para 70.
tion has been enacted to permit and regulate contingency fee agreements therein29 – like Ontario’s Solicitors Act 30–, whether the fee structure’s nature is reasonable and fair, and whether the motive is genuine or improper operate to “readily separate abusive practices from those that are justified or even beneficial.”31 In many instances, it may be considered a vice to meddle, prod, butt in, stir and stick our noses into the affairs of others. And while these practices may be frowned upon and reprimanded, the good and honorable kind of meddling is valuable to our justice system. On a wider scale, they give way to issues like public interest standing – whether someone who is better placed than the rights holder(s) or the substitute decision maker(s) (in terms of funds, knowledge, expertise, time, or other) should be allowed to bring a claim. Many of the same or similar considerations apply: whether the case raises a serious and justiciable issue, whether the party bringing the action has a genuine interest in the cause, whether the proposed suit is a reasonable and effective way of bringing the case to court, and whether the reasons for expanding public interest standing outweigh those for reducing it. 32 The nitty gritty of this topic is reserved for another day. For now, it appears undeniable that “the relation of the rules of practice to the work of justice is intended to be that of handmaid rather than mistress.” 33 29 Koliniotis v. Tri Level Claims Consultants Ltd., 2005 CanLII 28417(ON CA). 30 Solicitors Act, R.S.O. 1990, c.S.15. 31 Supra note 2 at para 47. 32 British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27. 33 J.A. Jolowicz, On the Nature and Purpose of Civil Procedural Law in On Civil Procedure (Cambridge: Cambridge University Press, 2000)
at 59.
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Vol 44 ● No 07
RESULTS: WHAT SHOULD YOU DO ON YOUR NEXT STUDY BREAK? Meg Beattie | 3L 14-18 pts – Take a Real Break, for Maybe the First Time in Your Life
4-8 pts – Self Care. But not too much; you can’t afford to waste too much time.
You are doing so much. SO MUCH. I don’t know who told you that the entire world will collapse if you take a break, but it won’t. You definitely can (and should) take a break. A real one. Here are some ideas that you can pencil into your agenda:
Far be it from me to judge, but you seem to be floundering a bit. Look, November is hard, and there are lots of us who are behind. It’ll all be okay, I promise. In the meantime, you probably shouldn’t neglect your own well-being, and a little break to take care of you may be just what you need. I’m sure you don’t need them, but here are some ideas:
• • •
Read a book. Ideally something intense, like Moby Dick. I’m still stuck on chapter 3, so please tell me how it goes. Take a nap. Did you know sleep debt never goes away? It’s almost exam time, it would be good to catch up. Plus, naps are amazing. Binge a show. Pick something trashy. I hear Love is Blind has a season 3 and it’s the worst one yet… I mean what more could you ask for? Alternately watch House of the Dragon and see what all the fuss is about.
10-13 pts – Do Something Relaxing, yet Edifying.
QUID NOVI • 22 NOV 2022
You are inspiring. Despite all the challenges of November in law school, you’re managing. I salute you. Still, a break is good every once in a while. You seem like the sort of person who wants to really get the most out of your time, though, so these suggestions are a little less on the time-wasting side: • •
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Put on a podcast and go for a walk. If you haven’t tried podcasts yet, now is the time to start. An audiobook is also a great idea. Clean your apartment. Or make it messier by cooking a delicious meal. Bake something! It’s winter now in Montreal; it’s time for cozy indoor activities (holiday music optional). Go to Thomson House and pretend to study. You won’t actually study (who ever does?) but it will be nice to grab a drink and stare at the same paragraph for half an hour.
• • •
Order food. Enough said. Take a bath. When was the last time you actually had a bath? They’re so underrated. And SO relaxing. Go online shopping. I was told not to suggest this because it’s perpetuating consumer culture, but it’s just so nice…
0-3 pts – DO NOT. You have taken enough breaks. You really need to get to work. This time I am judging. And wow. I don’t know how anyone even gets this result, but here you are. You are not to take any breaks until exams are done, you really, really need to get some things done. Urgently. Put the Quid down right now and get to work.
*****
9 points – Build a snowman army. Did you think skipping 9 was an oversight? It wasn’t. We need more snowmen on the lawn. Consider yourself recruited.
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QUID NOVI • 22 NOV 2022
Vol 44 ● No 07
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