Points North: Law of the Lands…

Points North

By James Fife

I mentioned some time back that my life has been lived in two distinct phases or spheres. At one point, everything steered toward an academic career in theoretical linguistics. But at a very late stage, things hit a brick wall: it was the 1980s and the major funding cuts that were part of Thatcherism/Reaganomics resulted in my missing the boat of the once-expanding field of linguistics. I had to abandon my profession and take up a trade. And that trade happened to be law.

I took the practical course of getting a paralegal certificate. But after about 15 years of working for others, I bit the bullet and did what I said I’d never do: become a lawyer.

Unlike some of my classmates, I enjoyed the law school experience very much. So, I came out swinging after four years, passed the bar exam, and went right to work in the area of law I had known from paralegal days was my keenest interest: criminal law. I started with a public defender organization in San Diego and was even lucky enough to be assigned to my favorite area of practice—appeals. It all worked out better than could be planned.

That was some 15 years back now. Although I have enjoyed this second phase of my life, it’s once again time to move on. The third change involves the more comprehensive step of a permanent move to Victoria, which I’ve been sharing here the past many months. And it strikes me now that just as linguistics will always be a part of me, so will law. It will not be not just a part of my past, but also of my future, as I made initial steps in becoming acquainted with Canadian law.

This was partly due to my natural interest in such subjects, but it also supports an option to continue legal activities in Canada. My education assessed by folks in Ottawa, I got a list of courses I need to ‘catch up’ on Canadian law. I started to do that long-distance, taking online law studies through UBC. It quickly became another concrete area I can compare Home North and Home South. And it confirmed again my general impression about how Canada and the U.S. can be strikingly alike in major ways, but so different at the level of details.

I take for reference the area of law I am most familiar with: criminal law. I have been reassured—and confirm with my own study—that the substance of the two countries’ criminal law is the same. Not surprisingly. We both have inherited roughly the same types and definitions of crimes from the common law of Great Britain. So generally, burglary is burglary, North and South.

Where I see stark differences, though, is in the details of procedures. The court structures for example are very different, since criminal law is primarily a federal matter in Canada, where it is (in theory) the concern of individual states down south. That gives the U.S. two rather separate layers of courts dealing with criminal law, one state and one federal, whereas in Canada, federally appointed judges apply federal law in every province—except lower-level cases that would be handled by a state ‘municipal’ court in the U.S. Big differences also exist, I found, in the use and function of preliminary hearings (changing the way I thought about them in the U.S.) and even in that venerable feature of the common law: the jury. In the U.S., jury selection is something plastered over with procedures and laws to ensure that juries are balanced geo- and demographically and there are weighty objections if that balance is not maintained. In Canada, a more ‘casual’ attitude seems to prevail toward jury composition. I realized this when I read how, if a court runs out of potential jurors for a trial, a judge can just send a sheriff out into the street and press-gang passers-by into jury duty. That just would not happen in the U.S.

One substantive difference involves the general attitudes about the seriousness of certain crimes and consequently the level of punishment given them. The U.S. is infamous as an ‘incarceration nation’: we imprison a greater proportion of our population than any other democracy. And for much longer. I am sometimes amazed at reports of sentences handed down in Canadian courts compared to what I would see one of my own clients get. An average Canadian meth dealer gets a sentence a third or less of an American defendant’s. And let’s not even get started on capital punishment. I recently read about a challenge to B.C.’s process to have Punky, a dangerous dog, put down. It sounded like B.C. accords far more due process to Punky than some states give to a human being. Even factoring in the Wet Coast attitude toward animals generally, that is still a reflection of a far less punitive attitude I’ve observed in Canadian law overall.

On the other hand, some offenses are treated much more seriously in Canada. Impaired driving is one instance; official corruption is another; privacy breaches a third. These are all things that most Americans seem to treat as bad form or even just oversensitivity on some people’s part. Compare all the umbrage attached to the SNC-Lavalin affair and the sangfroid so many Americans have toward a president who’s had a dozen close advisors resign in disgrace, get indicted, and plead guilty to felonies. At the same time, I’d place Canada as giving greater respect to Indigenous peoples’ laws and institutions than in the U.S., and the trend up North seems to acknowledge them even more. Sovereignty in the U.S is largely limited to being allowed to open mega-casinos on tribal lands, not real autonomy.

I still don’t know that I will really go ahead and try for my license in B.C. After all, the point is I’m retiring to Victoria. But I know me: I’ll still be fascinated with those differences, big and little, that I find cropping up as we make our adjustment to our new life under a new law of the land in James Bay.

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