Month: January 2013

The Decline of the English Language

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Forgive me if you will the fact that I will start this article with words that would have caused me to roll my eyes had they been uttered when I was a young student-at-law a 22 years ago by my boss or my father (which may explain the eye rolling of my children and my current student-at-law when I begin conversations this way), but “back when I was your age..”. The older I get the more I catch myself beginning my rants with these words. One recent such diatribe was caused by a week of being frustrated at people around me continually using incorrect grammar and not understanding what I meant because of my choice of words- words which are obvious to me, that I knew when I was in high school, that my teenager uses in regular conversation, so I’m not just referring to some arcane legal terminology. Words most educated adults should know but too many don’t. Usually this is an issue when I am dealing with younger lawyers and staff, those in their 20s and early 30s. These are for the most part highly educated individuals, all born and educated in Canada. The fault lies with the decline of standards in our educational system; our lowest common denominator infotainment culture; and one of the few downsides to modern technological advances, namely tweet and text-based conversational shorthand.

While I concede some of the issue may be my own prickliness when it comes to language, grammar and vocabulary, the cold, hard fact is that the English language is devolving at a pace faster than reality television if that is possible. And yes, television and popular culture are certainly to blame. As is the educational philosophy I have seen in my kids’ schools over the years where they were not penalized with reduced marks for spelling or grammar (in courses other than English) as long as the substantive thoughts and answers underlying the poor writing were understandable. This decline is also a result of the lazy, abbreviated writing of text messages, tweets, Facebook posts, and email. And don’t get me started on the cocoon of self-entitlement in which that generation was raised, always being told they were great and never being dealt with honestly when they were wrong. But it is no longer, as it was just several years ago just Generation Y. The abuse of the language has now fanned upward to affect all ages. I regularly receive emails from another lawyer in their 40s or 50s (a letter which in the prehistoric days before email would have been typed and sent by regular mail on firm letterhead) that is written so flippantly that it avoids any pretense of properly using capitalization, punctuation, spelling, grammar and formality.

We now live in an age where intelligence is considered a liability, erudition is considered a vice, and the president of the United States is mocked by his critics for being an intellectual snob who can’t relate to the common folk. We live in an age where the Honey Boo Boos are lionized and celebrated, where for a politician to achieve popularity she has to dumb herself down to be “one of us”, where a book which sells 10,000 units is now considered a best seller, and where the summer’s most widely read fiction was most notable not for its erotic nature but for its semiliterate writing.

The one station in society where I would expect that language standards would be upheld is in my profession. As lawyers, we are generally paid not just for our knowledge (which anyone with the inclination can obtain) but for our ability to communicate our clients’ ideas, thoughts, positions, stories and legal arguments, better than they can, whether orally or in writing. What sets a great litigator apart from a good litigator is the ability to persuade, and persuasion is at its core about mastering the art of communication.

I still recall the days on the metaphorical knee of my mentor, the late Doug Stewart, listening to him dictate a letter, reading briefs of law he so meticulously drafted, or watching him deliver an oral argument in court. He exercised the English language as a sword to advance his clients’ interests, while simultaneously using it as a shield to protect those same clients. To him, as to the other fine lawyers of his generation, the language was a tool not just to communicate, but to communicate more effectively than others.

The greatest writers use the art of the wordsmith not just to tell a story but to have that story move us emotionally to laugh and/or cry, or to develop pictures in our heads more vivid than any celluloid screen can possibly illustrate. Language is the reason a great many voracious readers are almost always disappointed by the movie version of a book they loved.

So to end this article where I started, forgive me for sounding like some old, retired English teacher or crotchety old man, but those of my generation who teach children in our schools, mentor the younger generations in our respective professions, and all of us as parents, have an obligation to understand that the new ways are not examples of language evolving but rather devolving, and we must band together to protect our language before all of our children talk like the illiterate morons on reality television. Sadly, like it or not, our thoughts and ultimately our actions, are put in place only by the words in our heads. If the verbiage of our society is at an elementary school level, how can the thoughts and actions that follow possibly be any loftier?

What Ya Gonna do When They Come for You?

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The January 4, 2013 sentencing of 5 former Toronto drug squad cops to 45 days of house arrest with not a day in jail is something that should concern us all. These five rogue cops were convicted when “jurors accepted that the defendants conducted a search of Ho Bing Pang’s Scarborough apartment in February 1998, without a warrant, then “did wilfully attempt to obstruct, pervert or defeat the course of justice, by practising deception, including by making a false or misleading account of events in their memo books, and/or by lying to the court in their testimony” to conceal what they’d done” (Toronto Star January 5, 2013 http://www.thestar.com/news/gta/article/1310868–dimanno-measly-justice-for-dirty-cops).

Even the conviction, already under appeal, seems light when all the facts are considered. There were originally many more charges stemming from multiple incidents with this particular squad. In order to secure the conviction, the Crown dropped numerous other charges, focusing on a single episode and as such the jury didn’t even hear evidence of similar unpunished actions by these officers. This fact and the leniency of the sentence simply send the wrong message to the police, not to mention to the notions of fundamental justice and fair treatment under the law, hallmarks of our legal system. My colleagues and I all have stories of officers who frequently lie by falsifying evidence, conspire with their colleagues to ensure their notes reflect the same sequence of events, steal confiscated property (including drugs), and mete out their own brand of frontier justice in the backseat of a scout car or an interrogation room with a “faulty” camera. And then there are those who are more or less honest but just plain lazy and will happily cut corners to secure a conviction rather than put in the necessary time and effort. As any criminal lawyer in the city can tell you, this sort of behaviour is so common place that it rarely raises eyebrows amongst the defence Bar any longer except as a means to secure an acquittal or negotiate a better plea for an accused client.
 
The truest measure of a just society is by how it treats its most vulnerable citizens. Another is by the extent of police powers. Canada is a beacon of fairness in this regard and the Charter of Rights and Freedoms guarantees that all citizens, and particularly those accused of a crime, are entitled without qualification to fair treatment at the hands of the state. While such mistreatment at the hands of the police is nothing new, nor is the concept of police lying under oath, we are recently starting to see much more judicial and media awareness. Note a recent case from Brampton, home to the busiest criminal court in Canada. In R. v Dinh, (http://www.canlii.org/en/on/onsc/doc/2011/2011onsc5644/2011onsc5644.html) Justice Deena Baltman found as a fact that Peel police had used excessive force against the accused during a drug sting. The accused alleged he was beaten in a hotel by the police.The judge also found that the police had refused the defendant’s right to counsel, and exceeded the authority of their search warrant.  More recently, I was recently retained on a case where the police sought to execute a search warrant against my client’s business. The warrant explicitly stated the police could search and seize all hard copy business and banking documents, but could not seize or even search computer hard drives and cell phones. Notwithstanding the clear wording of the warrant, the police took screen captures of the cell phone and carted several computers out the door right under the nose of another lawyer present at the scene warning them not to do so.

 

These sorts of goings on are par for the course. A review of the Toronto Star archive just for the last year reveals dozens of articles about individual instances of police misconduct ranging from officers lying under oath, improperly detaining prisoners and denying them the right to counsel, exceeding the boundaries of search warrants, personal use of illicit drugs, sexual harassment of those in their command, and assaulting suspects. These are just the cases that make it to light. Hundreds more dealt with  by the police in this manner every year refuse to make complaints once their cases are tossed out of court, wanting understandably to be done with the police for good. And what of the ones that somehow get shoved under the rug, when the Crown withdraws the charges, thus ensuring there could be no adverse finding against the police? And of the many harassed in some of our poorest neighbourhoods who, having not actually been arrested, feel too powerless or afraid to speak out?
 
The five Toronto drug squad officers and their supporters would say that the fact they lost their jobs is penalty enough. They, and sadly many law abiding citizens will suggest that such shortcuts are a necessary evil to get dangerous criminals off the streets because it is so difficult to obtain a conviction and keep offenders in prison long term. We hear talk of the revolving door justice system and are constantly being told our streets are unsafe, that pedophiles, drug dealers, muggers and rapists lurk around every corner. And if the police need to break some rules in order to keep the real rule breakers off the streets we will be better off for it. That, sadly, is the thinking of too many law abiding citizens.

 

Let me digress from my screed briefly to say that the vast majority of my interactions with the RCMP, OPP,  and municipal and regional police forces in Southwestern Ontario over the my 20 years as a lawyer have resulted in professional dealings with honest, decent hardworking individuals whose job is far more difficult and dangerous than mine. I have counted many fine men and women in blue among my clients over the years (for non-police related matters) and some I am proud to call friends. They chose policing for noble reasons and go about their job by the rules, accepting the inevitable flaws in the system that make their work at times seem like a Sisyphean challenge. But there remain those with a Boss Hogg mentality and such reprehensible conduct must be punished to the full extent of the law.
 
“Why should I care”, you ask? “I’m a law abiding citizen and I want to feel safe in my own neighbourhood”, you say. “I don’t want drug dealers and rapists on the street. And if I’m not doing anything wrong the police have no reason to mistreat me”, you have convinced yourself. Well, you would be wrong in those thoughts. The Association in Defence of the Wrongfully Convicted (http://aidwyc.org/) has spent 20 years trying to free wrongfully convicted in Canada. Their clients know first hand how an innocent man or woman ends up behind bars for years.The fact is you can be in the wrong place at the wrong time; look like someone else; have a nasty breakup where your ex levels allegations of spousal abuse or child molestation (and any family lawyer can tell you this happens less rarely than you might think); or be targeted by police due to people in your social or business circles doing things about which you have no idea. We cannot draw a line and say good citizens or “lesser criminals” deserve protections under the law while those “known to police” or who commit more heinous crimes are somehow less deserving. 

 

Our Charter guarantees fair treatment under the law and the assurance that our police not only must uphold and enforce the law but abide by it. Absolute power corrupts absolutely and we should all be concerned about the lenient sentence these officers received, a sentence that they would certainly not be satisfied with were they the arresting officers on crimes with such blatant disregard for human dignity. A slap on the wrist for these officers is a slap in the face to all Canadians who willingly from childhood accept what are taught about putting our faith and trust in the police. That trust has been sadly tainted yet again by the lack of jail time in this case.