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Minassian should be named | Cameron Cotton-O’Brien

Friday, March 12, 2021 @ 2:50 PM | By Cameron Cotton-O’Brien


Cameron Cotton-O’Brien %>
Cameron Cotton-O’Brien
When a killer strives for infamy through his acts it seems obvious that we should not speak his name. For a judge in a criminal trial this should not be so obvious.

In her reasons for conviction, broadcast live over YouTube and broadly covered in the local and national media on March 3, Justice Anne Molloy made a point of not naming the man who murdered 10 and wounded 16 in a vehicular attack on Yonge Street in Toronto nearly three years ago.

Justice Molloy declined to speak his name, instead referring to “John Doe” throughout her reasons, because his horrific acts had been motivated at least in part by a desire for recognition. Justice Molloy’s sentiment is admirable, but two significant issues stand out.

First, Justice Molloy’s attempt to keep Alek Minassian’s name out of public appraisal was futile and performative only, as it has been broadly displayed in the media. Indeed, at one point, I watched as a local television reporter interviewed a University of Toronto academic on precisely this issue of Justice Molloy choosing not to name the accused.

During that segment, Minassian’s name and photo were displayed on the screen while at one point his name crawled across the chyron below. Absent publication bans, de facto control of publicity lies with the media, not the judge.

Second, and more crucially, Justice Molloy was not simply engaged in disseminating information of a crime to the public. Canadian judges enforce the Criminal Code as defined by Parliament and do so legitimately because Parliament’s authority comes from the citizens who elect them. Justice Molloy was passing judgment over an individual and was doing so in our names.

Some 35 years ago, U.S. legal scholar Robert Cover wrote that “Legal interpretation takes place in a field of pain and death. … Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life.”

While one may no longer lose their life in Canada pursuant to judicial decree, it remains the case that the judicial pronouncement entails the application of organized social violence upon the individual. This is the case even where the state’s use of violence is justified.

The German political philosopher Rainer Forst helped explain why everyone who is subject to state violence is owed a basic right to justification. Such a right to justification means that when the state — acting in this case through its judges — applies force to an individual, that application of force is only legitimate where a justification is offered to that individual.

Minassian’s crimes are heinous and the suffering experienced by his victims, their loved ones and the broader community is horrific. But that does not mean that we as Canadian citizens should be comfortable with verdicts, being given on our behalf, that entail the imposition of significant violence in our names, without justifying these verdicts to the persons over whom they are rendered.

As a political community we hold those who have committed violence against us to account by punishing them, but this punishment includes the coercive use of state violence. It may be justified violence, but this specifically requires a justification offered to the individual who is to suffer this violence. In order to justify state violence to individuals, judges must address them as individuals, and that requires doing so directly and by name.

Without such a justification being offered to the individual suffering state violence, that violence cannot be held legitimate — instead, it collapses into the kind of arbitrary violence for which the individual is held to account. There must be a careful and rigorously enforced boundary between the legitimate violence the state enacts in punishment and the illegitimate violence it seeks to punish. This boundary is governed by only exercising this violence where we can in good faith offer a justification of its imposition to those over whom it is carried out.

Justice Molloy’s reasons for not naming the man she found guilty of 10 counts of murder and 16 counts of attempted murder are understandable. There are obvious reasons why we would not wish to name those who perpetrate certain types of crime, particularly violent crimes that might inspire copycat criminals or offer celebrity status to the indicted. In these circumstances we may wish to forgo addressing the accused by their name.

But these reasons cannot justify violating the state’s basic duty to individually address those it seeks to punish with its justificatory reasons. Imposing a finding of guilt is different than controlling notoriety — and only one of these properly constitutes the judicial role.

Cameron Cotton-O’Brien is a PhD candidate in political theory at McGill University, where his dissertation focuses on the right to justification in the context of criminal punishment. He is also finishing his J.D. at the University of Toronto and will commence his articles at Toronto-based criminal defence firm Kapoor Barristers this summer.

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