Tuesday, November 23, 2010

Interpreting the law: "Don't spit on the street!"




"Why is this ad illegal?"

Every year students ask me the question after I get them to write radio ads for the bar of their choice and they inevitably run afoul of one statute or another.

It's not an easy task to write the ads, primarily because you can't talk about the product you're selling - booze! - thanks to the MLCC advertising rules and conduct and the CRTC Code For Broadcasting Advertising of Alcoholic Beverages.

It's also not an easy assignment to mark, because there's no right answer to "What's legal or illegal?" - as many students point out, a good lawyer could help you "get off on a technicality." In response, I like to point out that lots of people are also convicted on a technicality - just watch PBS Frontline tonight to find out who this week's innocent loser serving a life sentence happens to be!

Thankfully, my daddy is a lawyer, which means I have free, unlimited access to legal advice as I need it - so don't even think about suing me, suckers!

So, I asked my dad for his advice on interpreting the law. In classic lawyerly fashion,  he didn't answer the question directly. Instead he gave me a sheet of paper with this on it:

***

Interpreting the law: "Don't spit on the street."

No matter what, there will always be a need for the law to be interpreted. Consider how referees must interpret the rules of hockey and how you may have argued with your friends about rules relating to chess or Monopoly.

All sorts of rules have been built up through the years on how to interpret a statute, but a knowledge of these rules is not necessary in order to understand how and why it's done. As an example, let's take the kind of law one might suggest as the simplest possible, one that no lawyer could ever make complicated:
"No person shall spit on the street."
Questions:

1. What about someone who spit on the street the day before the law was enacted?

2. Does is apply to persons of all ages? Are there exceptions? If so, will they create disrespect for the law?

3. Yesterday, a person finished eating a peach, and threw the pit onto the street. She says she didn't spit. Is she guilty anyway?

4. Does the street include the curb?

5. A person gets hit in the face with a baseball, and spits blood on the street. Is he guilty?

6. A boy spits into an open manhole in the middle of the street. Is he guilty?

7. Two men who know the law force a third person to spit on the street. The person says he had no choice. Is he guilty?

8. A woman from another province spits on the street. She says she didn't know about the law. Is she guilty?

9. A woman spits out of a car window, not intending to hit the street - but she does. Is she guilty?

10. A man says he probably did spit on the street, but that he was drunk at the time. Is he guilty?

A lawyer or judge would look at the wording of the law and the facts of the case, use common sense, and look into the law books to see if there have been any other cases about this or a similar law.

If there was a case reported in the law books in which a judge said that the usual definition of "spit" is "saliva," then a lawyer might use that case to defend the person in number five.

Another question: does the word "spit" in this law refer to what a person does or the content of what he does?

If there was no reported cases to apply to question one, the lawyer would probably look into other law books for cases about when a law goes into effect. The general rule is that laws are not retroactive unless the law says they are.

A lawyer might decide that there is no defense at all, and advise the person to plead guilty; since the rule is that ignorance of the law is no excuse, the person in number eight appears to be guilty, and her lawyer would probably advise her to enter that plea.

***

I fought the law, and the law won. I could spit.

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