DOWN AND DIRTY WITH THE CRIMINAL CODE

Justice Defiled: Perverts, Potheads, Serial Killers & Lawyers By Alan Young
Key Porter, 360 pages $36.95

In 1997, Osgoode Hall professor Alan Young became the first lawyer to
challenge Canada's pot prohibition. The law stood, but didn't emerge
unscathed - the trial judge stated that marijuana was non-addictive and
relatively harmless and that striking down pot laws wouldn't lead to
increased consumption. Young declared the prosecution a success, celebrating
on the courthouse steps with other pro-pot activists in a cloud of sweet
smoke. "In court, we had said that at least 2.5 million Canadians smoke
pot," he recounts. "On that day, everyone seemed to be smoking a big doob."

It's clear that Alan Young is no ordinary ivory tower academic; he's a
challenger, a rabble-rouser who wants Big Brother to step back. He's argued
on behalf of clients whose names and causes made headlines, if only for the
requisite 15 minutes, clients such as Terri-Jean Bedford, the "Bondage
Bungalow Dominatrix" of Thornhill, Ont., and bookseller Marc Emery, who
faced obscenity charges after opting to sell the controversial 2 Live Crew
album, As Nasty as They Wanna Be, emerging as a stalwart defender of
Canadian civil liberties.

Apparently not content to challenge individual laws and prohibitions, in
Justice Defiled: Perverts, Potheads, Serial Killers and Lawyers, Young takes
on a monolithic adversary: the entire criminal justice system, including the
"the power-hungry cops, the abusive Crown Attorneys and the uncaring judges"
who function within it. His criticism is both political and personal. "In
the course of one year," he writes, in a passage that reads more like a
victim impact statement than a critique of the system, "I was exposed to the
machinations of an adulterous judge, an emotionally disturbed law student, a
crooked lawyer and a backstabbing colleague." But elsewhere in the book, so
compelling is Young's argument that individual morality is a personal issue,
not to be dictated by police or prosecutors, that I'm confused when he
admonishes us for caring so little about "the moral character of those who
inhabit the legal profession."

The reader is much better served by Young's insights into systemic
hot-button issues such as parole and plea-bargaining, and his frustration
with a system of criminal justice that he argues extends well beyond what a
society should truly be concerned with criminalizing. "Some people will hump
themselves to death or intoxicate themselves into oblivion," he speculates,
"but that is no business of the state unless the excess decadence hurts an
innocent third party."

Young builds on this idea, arguing forcefully for the limiting of criminal
law, declaring that the Criminal Code should be used only to "target
behaviour that is seriously harmful to others," and that the law "should
never be used as a tool of moral hygiene." His deconstruction of obscenity
law is both cogent and humorous, drawing on examples from the work of
oft-bleeped comedians Sam Kinison and Andrew Dice Clay. "[F]or most of the
population, these vulgar comics are just that - vulgar comics," Young
argues, "They should be feared as much as Popeye should be feared for
encouraging jealous rages and constant brawling."

Stopping just short of extolling an "anywhere, anytime, anyplace" approach
to offensive material, Young makes the case that limits on "obscene"
material are best managed through by-laws and municipal regulation, not the
criminal law. "[I]t diminishes the solemnity and significance of the
criminal record," he concludes. "A permanent record of shame should be
reserved for those who have committed truly shameful acts."

Instead, we are reminded, the Criminal Code is a clearing house of
restrictions and sanctions, some of which are "criminal" by any reasonable
definition, while others (e.g. alarming the Queen, water skiing at night)
are mere social transgressions or acts that, while stupid or dangerous,
simply aren't "crimes" in any meaningful sense of the word. Young argues
that the Code, while ostensibly defining unlawful behaviour, fails in its
most basic function: guiding citizens.

You can't expect a "basic free-speech guy" to be constrained by social mores
where language is involved.

In making his case, Young seems to use every four-letter word he's ever
known, declaring his choice of language as a form of revolt. "I renounce the
formal trappings of academic discourse and take language into the gutter,"
we are told. He appears to be smugly self-satisfied in using words that,
until relatively recently, could have resulted in his book being labelled as
obscene matter in a court of law.

Some passages read as if written merely to shock the grownups and impress a
ribald 15-year-old. In attempting to characterize the relationship between
the courts and the police, Young declares that these two groups are "stuck
together with the jism of self-love that comes from a lifetime of jerking
each other off." You get the picture, regardless of whether you really
wanted it in the first place.

Or, in defining the legal doctrine of functus officio (once a judge delivers
her verdict, she has no further power in a case), the horny 15-year-old
ghostwriter makes another appearance. "I've always liked this phrase," Young
confides, "It seems kind of dirty - 'I'd like to functus your officio' - but
look at the implications." No, thanks.

Young's apparent amusement at this weak double entendre leaves me wondering
if he can say "Regina" without a wink and a nudge.

Despite the system's best efforts to codify and classify, much of law
remains visceral and messy; perhaps Young's language is simply a testament
to that fact, and to the passion and anger that fuels his arguments, and his
conclusion: that lawyers are a poor substitute for taking charge of our own
conflicts. "If you really care about the pursuit of justice, it is time to
break the addiction of having legal professionals do your dirty work," we
are admonished. While it's not clear what "doing our own dirty work"
entails, it's apparent that Young feels vindicated in saying it.

There's more clarity and value in the author's directive that we consider
the degree to which the criminal law should dictate the choices we make in
our personal lives, and protect us from the harmless choices of others.
Young's declaration that it is "an act of cowardice to ask government to
banish from sight that which does not cohere with our vision of humanity" is
an important self-help message for a society conditioned to dial 9-1-1 in
search of solutions.