Tracey TylerLegal Affairs Reporter28 Jan 2011
It maybe wasn’t the ideal subject for cruise ship passengers.
There they were, somewhere between Australia and China, hungry for a little food for thought.
That’s when guest lecturer Allan Hutchinson, a professor at Toronto’s Osgoode Hall Law School, began talking about the Mignonette case.
The Mignonette is not a petit steak, but the name of a racing yacht that sprang a rather large leak en route from Southampton to New South Wales in 1884, leaving its stranded and starving crew to resort to cannibalism.
“I thought, ‘Do I really want to be talking about life boats and survival?’ ” said Hutchinson, thinking back to his seminar with South Seas vacationers.
“Then I thought, ‘Yes, because it’s the most immediately gripping of these cases.’ ”
By that Hutchinson means the great cases that shaped the common law, the bedrock of legal thinking today in Canada, the United Kingdom, Australia and the United States.
Eight of those cases — “rich slices of social life,” as he describes it — are recounted in his new book, Is Eating People Wrong?, published by Cambridge University Press.
The answer to the book’s unsettling question — as with almost everything in law — is “it depends.”
Forced to abandon ship after an enormous wave tore into their vessel as it approached the Cape of Good Hope, the Mignonette’s three senior crew members thought they were following maritime tradition when, after 19 days adrift, they decided to kill and eat their orphaned cabin boy, Richard Parker, 17.
After they were rescued and returned to England, the trio was tried and convicted in a case that established necessity is not a defence to murder.
Given the unique circumstances in which the men found themselves, a political compromise was reached when it came to sentence, which spared them the death penalty and limited their punishment to six months in prison.
“It not so much eating people that’s the big deal,” said Hutchinson in an interview. “It’s killing them first, then eating them. That’s the big no-no.”
Hutchinson, 59, said the idea for the book had been brewing for many years, but crystallized after he had been invited by a cruise line to give a talk on one of its voyages in 2008.
The cases and the stories of the people behind them seemed to fascinate his fellow travellers and challenge their perceptions of the law.
Most thought of history’s big cases as spectacles such as the O.J. Simpson trial.
Hutchinson wanted to present the law not as a murky and mysterious world populated by people who speak a convoluted language, but as a boisterous, human enterprise.
The great cases, he argues, show the law is not a fixed set of rules and regulations, but a messy, knockabout, “down-the-street” endeavour that develops in an almost ridiculous, haphazard fashion.
After all, much of negligence law, including the ability to sue manufacturers for product defects, began in a Glasgow café in 1928 when a snail slithered out of a bottle of ginger beer.
Lawyers might try to dress it up as something grander, but the law “is really a bunch of people struggling to answer the difficult questions society has,” Hutchinson contends.
Major new decisions often raise more questions than they answer. Hutchinson compares it to a sprawling chain novel, with each author adding their own chapter. And there is perpetual tension between society’s desire for predictability — to stick with what has worked — and its desire to see the law evolve and change.
In the Mignonette case, for example, the English courts were afraid that acknowledging a necessity defence would lead to it being raised in an expanding list of cases, excusing many troubling crimes.
But, more than 100 years later, the issue has not gone away.
In Canada, the Supreme Court has wrestled with the question many times, most recently in the case involving Robert Latimer, the Saskatchewan farmer who admitted he had intentionally killed his 12-year-old disabled daughter, Tracy, in 1993.
Latimer said he did so to end her unbearable suffering. In upholding his conviction in 2001, the court said that while a defence of necessity is available, it is extremely limited and an accused person must show they faced imminent peril, and no reasonable, lawful alternatives to taking a life were available.
The question of necessity may be more relevant at sentencing, when a court is deciding whether some leniency is warranted. Latimer was given a life sentence with no parole for 10 years, the least restrictive sanction for a second-degree murder conviction. He was released last November.
Less well-known to the public today, but even more influential, was the case involving Frank Roncarelli, a Montreal restaurant owner whose support for Jehovah’s Witnesses made him a target of persecution by Union Nationale Quebec Premier Maurice Duplessis.
The case that began with a police raid of the restaurant and Duplessis’ decision to revoke Roncarelli’s liquor license in 1946 served as the building block of Canada’s constitutional and administrative law.
It established that elected officials can’t engage in a purely political or arbitrary exercise of power and must abide by the rule of law.
As always, there were elements of serendipity, and much hinged on politics, personality and timing. Roncarelli had persuaded the renowned constitutional scholar Frank Scott to argue his case — the first time Scott had ever appeared in court.
In the Supreme Court’s 6-3 decision in 1959, the court’s Quebec francophone judges supported Duplessis, as they had in three other cases alleging abuse of power by his government. Two of those judges were sons of former Quebec premiers.
Hutchinson has a long history of trying to make the legal system more accessible. (One of his 16 previous books is devoted to the subject). This one builds on that theme.
The message from these cases is that people shouldn’t glorify the law or put judges on a pedestal, because they are bound to fall off.
The law is not a thing of beauty but has sore spots and ugly features. It is no better than the lawyers, judges and commentators who comprise its dramatis personae, Hutchinson said.
And like any good play or story, it never fails to entertain.
“We can all vacation there and come back refreshed and invigorated,” he writes.
A cruise isn’t really necessary.