Features
Law by the Books
Political scientist studies tensions between the laws as written and the laws in action
BY TERESA PITMAN
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| While attending law school, Prof. Dennis Baker discovered he was more interested in exploring political and institutional aspects of Canada's legal system than in practising law. Photo by Martin Schwalbe |
When political science professor Dennis Baker was getting married, the minister asked him his religion. Without missing a beat, he replied: “Jedi.”
Yes, he's proud to be a Star Wars fan — in fact, he enjoys most science fiction. He also loves comic books and reading Winnie the Pooh to his two-year-old daughter, Charlotte. It's the whimsical side of his personality that contrasts with his serious side as an academic — doing research into the interactions between government and the legal system.
Baker's interest in legal institutions developed over time. When he started his university career at McMaster, he was studying mathematics, but he became intrigued by law along the way. Attending law school seemed to be the next logical step, but he soon realized he was more interested in exploring political and institutional aspects of Canada's legal system than in becoming a practising lawyer. So when he graduated from the University of Toronto's Faculty of Law, he chose not to article and went instead to the University of Calgary to do a PhD, which he completed in June.
Although he didn't want to practise law himself, Baker's wife is a busy litigator in Toronto, so he commutes to Guelph from their downtown Toronto home.
What's so intriguing about his field of study that it pulled him away from the courtroom? Baker explains that he's interested in the relationship between the courts and the legislature in the Canadian legal system. The simplistic explanation of that relationship is that the legislature makes laws and the courts implement them. But, in fact, the courts do “make laws” by creating precedents and, since 1982, have been even more involved in evaluating laws and making rulings based on the Charter of Rights and Freedoms, he says.
This has led to yet another overly simplified view: that the legislature passes laws to restrict people's rights and liberties, whereas the court enforces people's rights more broadly, says Baker. “Really, it's about achieving a balance. My work looks at how that balance is achieved.”
He cites as an example a series of legal cases where women who had been sexually assaulted went to rape counsellors. In each case, the man accused of assault wanted access to the records from the counselling sessions to see if there might be information useful for his defence.
“The courts are interested in making sure everyone has a fair trial, so they believed the accused should have access to the records,” says Baker. But the government recognized there were other issues.
“The legislature pointed out that the accused man's rights were not the only rights to be considered. The woman had a right to privacy. There was also a concern that women would be discouraged from seeking therapy out of fear that their records might one day be used in court. So the government passed legislation to discourage the release of the information, and that was ultimately upheld by the courts.”
In this case, he notes, the government was seeking to protect rights.
Baker is also looking at other aspects of the Canadian justice system and the interactions between the various parts — what he calls “the law in action.”
“Just because the government makes a particular law doesn't mean it will work the way the government intended in practice,” he says.
For example, after some tragic and highly publicized incidents, the federal government has passed new legislation on street racing. But some people consider this unnecessary because street racing is already covered in the Criminal Code, says Baker. The effectiveness of the law will depend on the willingness of police to arrest offenders and whether the courts choose to impose the maximum penalties when people are convicted, he says.
“Parliament is trying to send a signal with this law, but whether or not that signal reaches the people involved in street racing will depend on other parts of the justice system.”
Tensions between the laws as written and the laws in action are also evident in another example Baker cites: the practice of polygamy in a religious community in Bountiful, B.C. Although there are laws against polygamy, he says the Crown attorney is reluctant to prosecute the families involved because of fears the Supreme Court will respond by striking down the law as unconstitutional. So even though the law is still “on the books,” it's being ignored, he says.
“I love these issues and seeing how these things are worked out. I'm also interested in Canadian legal history, which is, of course, where some of these conflicts come from. Many of our criminal laws were first written in the 1890s.”
Baker says his interests in legal history, criminal justice and public policy “make me a good fit” with the Department of Political Science. “I'm very happy to be here.”