The Lawyers Weekly - July 16, 2010

Re “‘Moral crime’ as weasel words,” June 18 issue.

JEFFREY
MILLER

The 1980s were heady times for this newspaper. In those days of Goths, punks, and spiked hair, we were in the thick of all things funky as well as legal, in digs on Queen Street West, a few blocks west of Osgoode Hall and a few doors east of Steve’s Music Store.

That office was my excuse to visit the store every chance I got, and one such visit produced a column comparing the banned song-list in the acoustic guitar room with sign laws in Quebec. Steve’s, which started business in Montreal in 1965, was not yet a Toronto landmark, quite, but already saw itself as sub-municipal, with rights of regulation. The view seemed to be that “Stairway to Heaven” was the express elevator to aural Hell.

I noted, though, how “Stairway to Heaven” had been ousted as Steve’s number one illegal song by Eric Clapton’s “Layla,” and that Clapton’s “Tears in Heaven” had been added to the 10 most-hated list. I don’t remember what it replaced, but the times they were a-changin.’ (Bob Dylan is perhaps dismayed that he was never banned.) Was it mere coincidence, I asked, that Premier Bourassa was about to allow English on store signs in Quebec, including Steve’s?

I’m told “Smoke on the Water” is still banned at Steve’s Toronto, 20-odd years later. “Mother Nature’s Son” might have got a pardon, though. When I visited the store the other day, a young salesman told me, “The managers here like to play Beatles songs.” The geezers, he meant, like me.

And sure enough another notable geezer was there at the front counter. It was the Tuesday after the G- 20 weekend in Toronto, and Mayor David Miller was checking in with local businesses as they recovered from being in the thick of the street violence. Mass arrests had taken place just outside Steve’s front door.

I asked the salesman if he had been around “for the excitement on Saturday,” the same day storefront and bank windows were

STEVE RUSSELL / GETSTOCK.COM
A protester is overcome by the smoke on June 26 after attempting to put out a fire in a police car at Queen Street West
near Spadina during a protest of G20 Summit are held in Toronto.
smashed, along Yonge Street. He
said, yes, he had been working that
day. “We went outside to watch the
demonstration, which at that point
was moving east on Queen towards
the store. But then bottles started
whizzing past and we went back
inside. Then we decided to close
the store. People were allowed to
go home if they wanted, but I live
so far west that I would have had to
go through the worst of it. So I
stayed, until around the time when
they set the police car on fire.”
On television, the nation
watched that car burn (and burn,
and burn), with Steve’s well-known
sign jutting out above it from 415
Queen West, providing a back-
drop. The salesman told me that if
I looked at the sign now, I’d see
where parts of it had melted from
the radiating heat. Two large store-
front windows had cracked as well,
but staff had moved the equipment
in them to safety. “That mixer,” the
salesman said, nodding to a unit
on display in a big picture window,
“is worth $9,000.”
Glaziers had already replaced
the glass, and the sign was not
looking not, really—blackened, in
places, but in a moody, groovy
“Smoke on the Water” manner,
with some of the letters a little
runny in a way that was funky. I
suggested that they might want to
leave it like that as a sort of histor-
ical monument. The salesman
“If they espoused any
principle, it was
obliterated by
hooliganism, blowing
smoke on the water,
or the Fake Lake.

shrugged and laughed. Then another young salesman arrived and said he was relieved to have been off the day Steve’s doorstep was a battle zone.

And sure enough, the most interesting aspect of the young men’s responses was that they had no time for the “activists,” never mind the latters’ purported political motives and the fact that they were the salesmen’s demographic peers. There had been danger to their well-being, physically and financially, and that was that.

Even anarchists have principles,
a theoretical basis that requires
thought. Real anarchists believe
the rule of law is so broken, we
should start over. The few summit
“anarchists” who attempted to
assert this were wilfully blind to
how complacently, reflexively
wrong they were in applying this to
Canada. The legal rights accorded
them after arrest are a complete
answer. In interviews with news
media, some contended that
breaking windows was the only
way to really get official attention.
But they never managed to say
attention to what. If they espoused
any principle, it was obliterated by
hooliganism, blowing smoke on
the water, or the Fake Lake.

Jeffrey Miller inveighs against Cardinal Ouellet simply because this Roman Catholic Primate coined the two-word neologism “moral crime” to describe abortion, the wilful, deliberate, unprovoked killing of a fetus otherwise destined to develop into a full human being (a human being like, say, Jeffrey Miller who was once an innocent fetus himself).

With no evidence, Mr. Miller charges that the cardinal “ confounds the sacred or [sic!] the philosophical with the legal.” But the cardinal actually said nothing whatsoever about “the sacred.” Instead, his well-chosen adjective was “moral” and the common language of morals is available to every person, including a cardinal.

Keeping in mind “the moral” (which is non-religious), we can ask whether “the moral” can be separated from what Mr. Miller calls “the legal.” It cannot. “The legal” inescapably depends on “the moral” through such moral concepts as duress, cruel and unusual punishment, fairness, deceit, unconscionable bargain, discrimination, rights, duties, obligations, restitution and those key concepts of criminal law, retribution and deterrence. Even the supposedly “legal” concept of equitable estoppel first appears in Plato’s ethical dialogue, Phaedo. Separating law from morals is John Austin’s nineteenth century dream of legal positivism.

The cardinal is entitled (does entitlement belong to “the legal” or to “the moral” or both?) to his new phrase just as others are entitled to that grand neologism, “crime against humanity” (the whole human race as complainant?).

Yours truly,
Greg Lanning
Abbotsford, B.C.
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