-Essay 1-

International Baccalaureate Extended Essay

Determining the Medium Specificity of the Film Form How and why does the Formation of the Montage generate Synthesis

KunalChakravarty

Subject: Film

Candidate Number:002952-074

Total Word Count: 3813

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Abstract

Consider the power of the arts. How is it that that a painting, a book, a single song, can

warp a man’s perceptions? Or evoke with such ease sentiments of isolation, patriotism, maybe

even happiness? This is the extent of influence that the arts can extort over us. This is the

defining characteristic of any given art form and it is this characteristic that we call Synthesis. So

to address the topic of film, an extremely new form of art, it would be nearly treasonous to

speak of superficial technologies and drawn out clichés. Instead, it would be more integral to

form if an analysis on film’s ability to generate synthesis were to be written. Though to write on

the nature of synthesis, a base example of the art form’s ability is required-a medium specificity,

in layman’s terms. Conveniently, the Russian directors of the early twentieth century have

provided for us that medium in the form of montage. Therefore, in the need to examine the

Synthesis of film, the research question of ‘How and why does the formation of the Montage

generate Synthesis?’ was derived.

The following sections will examine works of Sergei Eisenstein, such as Battleship

Potemkin and October in addition to his pivotal written work A Dialectic Approach to Film Form.

Which uses the Dialectic Theory originally proposed by Georg W. F. Hegel as a basis for

discerning the specificities of Synthesis. Alongside that, the significance of the Kuleshov Effect

and the theories of its propagator Lev Kuleshov are examined in detail. In conjunction, the

analysis of these factors have led to the belief that synthesis is the product of the conflicting

concepts and psychological dissonance proposed by the director to the audience via the film

form.

Word Count: 289

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Table of Contents

Introduction………………………………………………………………………………………………………………………………………pg.5

Scene I: The Soviet Montage…………………………………………………………………………………………………………….pg.6

Scene II: The Kuleshov Effect…………………………………………………………………………………………………………….pg.9

Scene III: The Intellectual Montage…………………………………………………………………………………………………..pg.13

Conclusion………………………………………………………………………………………………………………………………………..pg.16

Bibliography……………………………………………………………………………………………………………………………………..pg.17

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“And exactly as she had left her hiding place long ago,

so she now hurried away from the moving pictures with

her eyes full of tears, among a crowd who were leaving

their seats and hastening through the darkness to the exits.”

-Miguel Angel Asturias, The President

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Introduction

In the construct of all arts there exists a single, primordial basis from which the art form takes root.

Where the painter finds this basis to be the clash of color, or the alignment of form, the musician will find

this to be the brain’s reception of sound. Naturally, every art form requires a base from which it can develop.

base is what is known as the medium specificity to an art. In the case of an art form as ambiguous as film,

that basis can be recognized as the ability to engage and distort the perceptions of the audience. To those

who have studied the theories of film, this ability is known as synthesis. For in actuality the various modes of

film composition and theory revolve around a director’s ability to manipulate the art form’s most integral

attribute of Synthesis and distort the minds of the audience. Therefore to investigate the most rudimentary

aspect of film, we need to examine the nature of synthesis via the oldest and most effective means of its

creation, that being the Montage and give answer to the question of ‘How and why does the formation of the

Montage create Synthesis?’. By examining the works of the Russian masters who would establish the Soviet

Montage Theory, among which being the revolutionary theories on montage formed by Sergei Eisenstein and

VsevolodPudovkin. As well as the discovery of the Kuleshov effect by Lev Kuleshov in 1929 which served to

reinforce if not strengthen the psychological effects induced by Montage over its audience. In demonstrating

the usages and effectiveness of the theories demonstrated by these pioneers of film we can be lead to

understand that it is ultimately the psychological dissonance brought on by the dialectic properties of

montage that generate what has come to be known as Synthesis.

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Scene I: The Soviet Montage

In analyzing the psychological effects of montage, a great deal of observance must be given to

Eisenstein’s Soviet Montage Theory. One of the fundamental theories on early film, it was devised at a time

of change and progress in Russia, that being shortly after the Russian revolution in 1917 as a means of

establishing a set definition and use of a Montage. Following the discovery of the Kuleshov Effect- which will

be more closely examined later- Russian filmmakers formulated a new method of composing film, wherein

each shot is juxtaposed with another to establish an overall dialectic meaning. During this time, a student of

Lev Kuleshov, Sergei Eisenstein would begin his investigation into what he believed to be ‘the nerve of

cinema’ as well as the missing medium specificity that film had yet to establish. He produced an essay

entitledA Dialectic Approach to Film Form which explores extensively the nature of art as a dialectic

medium produced by conflict1. He continues his essay by stating that the purpose of art –more

specifically film- is ‘‘...to make manifest the contradictions of Being. To form equitable views by stirring up

contradictions within the spectator’s mind and to forge accurate intellectual concepts from the dynamic clash

of opposing passions.”2. Where the Being that he describes is ‘... a constant evolution from the

interaction of two contradictory opposites’3. It is in this description that Eisenstein brings about the

foundation of Soviet Montage Theory as the foundation to understanding the nature of the montage.

In its most simple form, the montage is a product of a reaction rather than an entity on its own.

That reaction being the meeting of a thesis and it’s antithesis in conflict, followed by the nature of the conflict

revealing to the audience in the dialectic message of the director. That conflict being the Synthesis and that

process being the montage. In understanding that, we can then begin to understand what Eisenstein means

1Eisenstein, Sergei. Film form [and] The film sense; two complete and unabridged works.. New York:

Meridian Books, 1957. Print. 2Eisenstein, Sergei. Film form [and] The film sense; two complete and unabridged works.. New York:

Meridian Books, 1957. Print. 3Eisenstein, Sergei. Film form [and] The film sense; two complete and unabridged works.. New York:

Meridian Books, 1957. Print.

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by the Thesis and Antithesis as well as how the existence of a conflict can be associated with a dialectic

message.4

The Nature of Juxtaposition

Rumor has it that Eisenstein derived the idea for cinematic juxtaposition from spoken language.

The Japanese language to be specific. In that tongue, two words beside each other can form a greater

meaning separate from the individual meanings of the two words used, for example the meaning of sorrow

can be extracted from the use of the words ‘Knife’ and ‘Heart’ beside one another. Individually, the words for

Knife and Heart describe physical entities, however when used in combination they produce an emergent

property and begin to describe a metaphysical phenomenon. Eisenstein wished to duplicate that technique in

form of film, where each shot would take the place of a word and when used in conjunction emergent

properties in the use of those shots would arise. In addition to instigating the Soviet fixation on Montage,

Eisenstein also included a catalog of Montage forms in A Dialectic Approach to Film Form each one a

different technique for a director to propose ideas to their audience.

Consider these two shots, in shot A we see a red apple sitting on a table in a mildly lit room. In shot

B we see the same table in the same room and the same red apple, however the apple is smashed to pieces.

An audience seeing the apple in shot A and again in Shot B would feel that the director is attempting to

instigate a sense of destruction in them. Which would be correct, the audience has understood a connotation

of destruction from the two juxtaposed shots. However, what the audience has not witnessed is any actual

destruction. They have seen destruction without seeing destruction. If a director wanted to show to audience

destruction he would commit a shot to a building exploding, or perhaps a bridge falling. Yet the director has

not done that, he has instead forced the audience to interpret a message which contains the connotation of

destruction by showing them a Thesis- a healthy apple in shot A- and an Antithesis – a shattered apple in

Shot B. From this conflict the audience can comprehend that the apple was destroyed between the shots. Yet

because they did not see it firsthand, it is dialectic message- a Synthesis of a notion. But it is only a Synthesis

4Andrews, Dale. Digital Overdrive. Toronto: Eastwood Multimedia, 2002. Print.

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or a meaning because the audience did not see it. A meaning is something separate from the elements used

to propose it. ‘Apple’ is a word, and also a sound however the meaning of the word ‘Apple’ is a physical

object which is different from the sound used to propose the meaning. Likewise, if the audience had seen the

apple being smashed it would no longer be part of their extrapolation, instead it would be part of the

elements used to answer the question of ‘Why?” as in “Why am I seeing this?”, “Why is this happening?”.

This is the fundamental nature of Synthesis and of juxtaposition, and it from this that the rest of Soviet

Montage develops.

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Scene II TheKuleshov Effect

In addition to the works of Eisenstein, a multitude of other Soviet filmmakers began to develop

theories on the application of Montage. Among such theorist would be Lev Kuleshov, a mentor to Eisenstein

as well as one of the foremost pioneers of Montage following his discovery of the Kuleshov effect. It was

primarily used by Kuleshov as a means of expressing how the use of editing and shot order can distort an

audience’s interpretation of a film message. The effect was discovered when Kuleshov composed a short film

wherein the viewer would witness alternating shots of various subjects, such as a bowl of soup, a baby, a

woman, and between each would be the expressionless face of a Tsarist model. The result of this was that

following each shot the audience would assume that the face of the model was reacting to the previous shot.

For example, a bowl of soup would be displayed followed by the model’s face. The audience would then

assume that the model’s expression reveals hunger and longing for the soup. The next shot would then be of

a baby again followed by the same clip of the model, however now the audience perceive the same expression

to be of love for the child. Kuleshov used this discovery to portray that the attitudes of the audience were

subjective to what they witnessed on screen and subconsciously attributed those characteristics to the actor

in the film5.

The significance of this discovery served to enhance the idea originally introduced by Soviet

Montage Theory, wherein by careful arrangements of shots could distort an audience’s perception of a topic

marking it as the most effective propaganda tool of its age6. A status that has carried on to today’s

generation. Though aside from the utilitarian purposes of this discovery, in the way of its development as an

art form it came to redefine what was possible for directors in the future. Namely, Alfred Hitchcock makes

reference to the Kuleshov effect in his 1964 interview with Fletcher Markle on how the rearrangement of

shots can be used to build intrigue, satisfy the audience, or completely subvert them from a topic7. Though in

the way of Synthesis, this proved that a dialectic message could be produced based solely on the order of

5The Original Kuleshov Effect.Dir. Lev Kuleshov.Perf. Ivan Mosjoukine .Flickerman, 1929.Film.

6Sklar, Robert. A World History of Film. Rev. and expanded ed. New York: Harry N. Abrams, 2002. Print.

7Hitchcock, Alfred. ""Telescope" A Talk with Hitchcock." Telescope.CBC. K55KD, Orlando, Florida: 24 Mar.

1964. Television.

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shots in a film. It is because of that discovery that the Soviet Montage Theory was solidified on a factual

basis.

The Kuleshov-Eisenstein Disturbance

The Odessa steps sequence portrays the massacre of defenseless citizens at the hands

of the Tsar soldiers at the peak of the Russian Revolution. As such, Eisenstein aims to replicate

the brutality and chaos definitive of such an event which he captures in the form rhythm. That is

to say, the permeating beat in the sequence established by the background music which is

juxtaposed by its desynchronization with the soldiers’ steps, and the falling of bodies8. From this

the viewer can interpret a dissonance in the pacing of the montage and as such a sense of chaos

can be established, which Eisenstein encourages by suggesting the images of gunmen, wounded

widows, an eruption of hands and feet, etc. In addition to this, Eisenstein displays only the key

images to suggest chaos choosing to exclude the intermediary events. Effectively producing a

sense of chaos derived from a lack of knowledge. The viewer will see a gunman, followed by a

bleeding widow, followed in turn by soldiers walking over a body however never see the murder

of the widow in its entirety. The desynchronization of the beat with the soldiers’ footsteps, the

constant display of traumatizing imagery, every component of the sequence from the editing to

content of the shots resonate with a sense of chaos. However, the sense of disorder is not

generated by observing the montage as a whole it is generated by observing the subtleties in

Eisenstein’s editing and how he achieves desynchronization between his shots.

Having described Eisenstein’s style as a means of “raping the emotions of the audience”

Kuleshov preferred to use montage not as a means of manipulating the viewer’s emotion but

instead to perplex the viewer and build intrigue in a sequence by engaging and disengaging the

audience from the actions on screen relative to how much suspense he wanted to generate. If

Eisentein viewed the components of montage as akin to cells in a structure- where each

component communicates with the other- then Kuleshov viewed those same components as

8The Battleship Potemkin.Dir. Sergei Eisenstein.Perf.AleksandrAntonov. Video Images, 1984.Film.

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bricks in a wall- for individually they meant nothing until the gestalt of the sequence could be

observed. This is displayed most famously in 1926 film By the Law, where his ‘cumulative’ style

of montage is used to portray the internal struggle of his female lead, Edith, to shoot a prisoner to

death. Kuleshov cleverly achieves this by alternating between key images in the scene such as

Edith’s hands on the barrel, her face, and the prisoner’s face9. For the viewer this signifies an

increase in pace, although the reason for that is unclear until the shots begin to focus more

prominently on the barrel of the gun and the prisoner’s eyes suggesting the act of murder. This

tension is then relieved following the prisoners own suicide, however it is not until this moment

that the significance of the pace increase and imagery of weapons can be interpreted as the

visualization of Edith’s moral dilemma. Since that dilemma is only solved following the

prisoner’s suicide which is simultaneous with the release of tension in the montage. Because of

this aspect, the montage serves as a clear example of Kuleshov’s style since the significance of

the montage’s components – increase in pace, imagery of weapons- is only apparent following

the conclusion of the montage.

Ultimately both styles utilize the same the principles of montage described in A Dialectic

Approach to Film Form the only discrepancy lies in their usage. Where Kuleshov considered the

montage as a means to produce intrigue by suspending the presentation of the dialectic message

until the conclusion of the montage, Eisenstein believed that the montage was most effective

when the dialectic was hidden in the components rather than established by the components. And

as such we see a greater control over the emotions of the audience in Eisenstein’s montage as

opposed to Kuleshov’s. However, in Kuleshov’s style the manipulation of emotion is secondary

to the appeal to intellect and as such the dialectic proposed by Kuleshov rely more openly on the

reader’s ability to recognize it as a message. For example, the dialectic message of moral

dilemma in By the Law is made possible by the audience realizing that the tension generated

reflects the thoughts of the female lead. Eisenstein features a more primal style, attacking the

9By the Law. Dir. L. V. Kuleshov. Perf. Aleksandra Khokhlova. Facets Multimedia?];, 1986. Film.

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viewer’s basic appreciation of order in the Odessa Steps sequence and proposing his dialectic

message of chaos in the montage’s disassociation with order. This disturbance between the

theories of Eisenstein and Kuleshov is, in essence, a proposition of two different forms of using

synthesis: one to manipulate the emotions and perceptions of the audience as performed by

Eisenstein and another to generate intrigue appeal to the intellect of the audience categorized by

Kuleshov.

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Scene III: The Intellectual Montage

Returning to the principles brought forth by the master of Montage himself, Sergei Eisenstein, we

are drawn once again into a different corner of the montage’s ability. Thus far, the montages ability to imply

has been demonstrated continually via the various examples provided by Eisenstein and Kuleshov such as

the Odessa Steps Sequence and the Edith montage and while the influence of montage rests with its ability to

persuade with implication through juxtaposition, the nature of that implication is altered in every different

style of montage. For example, the Rhythmic montage seen in the Odessa Steps implies chaos in the

desynchronizaiton of the shot elements .The Tonal montage exemplified in Vakulinchuk’s death –another

Battleship Potemkin exemplar- implies the emotive reaction expected from witnessing the death of a

revolutionary and birth of a martyr in its manipulation of the shot’s temporal aspects and literal pathos (that

being the emotive significance of the shot) to illicit an emotional response in the audience. Because these

montage sequences are indisputable exemplars of montage, we can recognize that the method to generate

synthesis forever remains in the domain of juxtaposition, however the method by which the audience

perceives that synthesis rests in the means by which a director edits the montage. The dialectic message of

chaos would not be so clearly expressed were Eisenstein to use perhaps a Tonal Montage rather than a

Rhythmic Montage because the means by which the audience were to recognize the sentiments of chaos

would be lost in translation. Now that is not to reduce the art of montage to something so rudimentary as

picking and choosing the correct style to a message since in reality any style of montage can be used to send

any dialectic message, the purpose of mentioning the explored Odessa Steps Sequence with the relatively

untouched Vakulinchuk Death is to draw attention to a difference in the form of implication.

As previously stated, it is juxtaposition which allows a director to transfer dialectic messages

between themselves and the audience that is their tool. Yet a message transferred in montage can never be

exact because it is an appeal to emotion, and emotion as we all know is subjective to its core. It is because of

this complexity that the Intellectual Montage is perhaps the most significant of the five proposed montage

-13- styles designed by Eisenstein and discussed in Scene I. For where all other montages are ultimately a

directors attempt to force their audience to feel and react in a specific pattern to arrive at a specific emotive

state the intellectual montage breaks away from that premise and instead proposes a variety of shots

designed to test the audiences intellectual understanding. The juxtaposition in the montage arises not from

the conflict in temporal pattern, or emotion generated by a shots subject but rather the intellectual

properties of that shot’s subject juxtaposed with the next shots subject. To illustrate this concept let us

examine the most famous intellectual montage in existence, Eisenstein’s God Montage.

The purpose of the montage, as defined by Eisenstein, “unleashes a process that, in terms of its

form, is identical to a process of logical deduction.”10. We see the Montage begin with an image that

captures the form of a holy statue of Christ, the Eastern Orthodox deity. The deity to appear is a Hindu god,

followed by the Buddha, and consequently a Chinese Guardian Lion until the process reaches a primitive

pagan wooden statue of an unidentified deity. The rationale for this process was to slowly deteriorate the

concept of an omnipotent god. Beginning with the contemporary Russian religious symbol, Jesus Christ, and

ending with the god of a dead religion. The order in which the gods appear is determined by what Eisenstein

perceived to be their religious value and significance in the modern world with Christ being at the forefront.

By displaying a picture of Christ the audience will inherently recognize a prominent symbol of divinity,

having this followed by a Hindu god the audience still recognizes a religious symbol albeit one they are not as

accustomed to. Following the Hindu god with a multitude of lesser known Gods the audience slowly becomes

indifferent to the later deity although still able to recognize them as divine figures. In doing this, Eisenstein

as likened Jesus Christ with the unidentifiable wooden statue which appears at the close of the montage by

slowly introducing the audience to more foreign deities11. In that sense the audience acknowledges that

theyhave unintentionally compared their own infallible god with a meaningless statue by following the

logical pathway that Eisenstein has laid out for them in his montage.

10

Eisenstein, Sergei. Film form [and] The film sense; two complete and unabridged works.. New York:

Meridian Books, 1957. Print. 11

October 1917. Dir. Sergei Eisenstein.Perf. Nikolay Popov. Corinth Films :, 1998. Film.

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We can recognize that the effectiveness of this montage is not in its ability to alter the superficial

aspects of film such as shot length, rhythm, etc. But its ability to direct and subvert the intellectual

interpretations of the audience. In layman’s terms, the montage does not generate an emotive response but

an intellectual realization by playing on the preconceived notions of the audience. Because of this Eisenstein

considered Intellectual montage to be an alternative to the growing Western practice of Continuity Editing

(editing with continuous flow such that the cuts between shots appear natural and unchallenging to the

viewer’s eye) in the sense that with its progression of logic it allowed the audience to experience a continuous

flow of thought similar to how the Continuity Editing style allowed the audience to experience a continuous

flow of visualizations.

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Conclusion

Prove that synthesis is created by the viewer’s psychology. A difficult task to complete since the

process of synthesis in film is by no means a lucid concept. Simply it is founded too firmly in theory and

therefore difficult to conceptualize in a physical medium. No one can hold a synthesis or see the dialectic

message being transferred because it is process formed exclusively to provide us insight into the film art.

Nonetheless, we know- with thanks be to the Soviet masters- that Synthesis is generated in conflict, conflict

is generated in juxtaposition, and juxtaposition is formed in montage. To that extent, we can trace the

emotional value we hold in film to the conflict that occurs on screen. The most crucial discovery made by Lev

Kuleshov during his experiments in montage that would lead to the creation of the Kuleshov Effect. And

lastly, the existence of the intellect in the formation of film cannot be overlooked. For in all its entirety film is

to the intellect what music is to the ear and for that reason we can perceive why the intellectual montage is

capable of generating synthesis in logic. Through examining the analysis of the Soviet montage, the

significance of the Kuleshov effect and the intellectual montage among other aspects found in The Dialectic

Approach to Film Form it is definite that the effects of montage are generated through the use of synthesis to

create a psychological dissonance in the audience. There is a reason why Eisenstein once claimed that

‘montage is the nerve of cinema’ perhaps he referred directly to montage as a medium for synthesis. This

would not be wrong as it would reflect its role as the director’s most crucial tool. However, montage is

nothing but a tool, which is why it is not entirely correct to depict montage as ‘cinema’s nerve’. Tools are for

preforming actions and it would be more correct to state the action that montage produces as the true

‘nerve’. So then what action is it that montage preforms with such artistry? Simply the creation of conflict.

disaster, dissonance, chaos in film that the director exploits to the enth degree. For it is from chaos that all

creation is made possible. Perhaps that is the mysterious medium specificity of film, the generation of chaos

to establish order in an art form and it is this process that we revel in film’s grandeur. Because after all,

creation, art, emotion, even intellect, are the results of chaos.

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Bibliography

Eisenstein, Sergei. Film form [and] The film sense; two complete and unabridged works.. New York: Meridian Books, 1957. Print.

The Original Kuleshov Effect.Dir. Lev Kuleshov.Perf. Ivan Mosjoukine .Flickerman, 1929.Film.

Hitchcock, Alfred. ""Telescope" A Talk with Hitchcock." Telescope.CBC. K55KD, Orlando, Florida: 24 Mar. 1964. Television.

The Battleship Potemkin.Dir. Sergei Eisenstein.Perf.AleksandrAntonov. Video Images, 1984.Film.

By the Law. Dir. L. V. Kuleshov. Perf. Aleksandra Khokhlova. Facets Multimedia?];, 1986. Film

Eisenstein, Sergei. Film form [and] The film sense; two complete and unabridged works.. New York:

Meridian Books, 1957. Print.

October 1917. Dir. Sergei Eisenstein.Perf. Nikolay Popov. Corinth Films :, 1998. Film.

Sklar, Robert. A World History of Film. Rev. and expanded ed. New York: Harry N. Abrams, 2002. Print.

Andrews, Dale. Digital Overdrive. Toronto: Eastwood Multimedia, 2002. Print.

-17-

-Essay 2-

Essay from a second year Criminal Justice Course at York University

Criminal Justice Systems Media Analysis

Intro

The aspect of Accountability in the Canadian Criminal Justice System has, since its inception,

been paramount in nature. The antecedents of the Charter functioned almost exclusively on the

existence of checks and balances to establish and bring into repute a sense of Due Process. In such a

system, penumbral cases which clash with our pre-conceived notions on the efficiency/ necessity of due

process are-for a lack of a better word- simply shocking. That being said, the odd case in the dark of the

penumbra of Criminal Justice which does not solely inquire as to the efficiency of due process, but

instead exposes lapses in the concept, are intrinsically linked to the reputation and future of the

judiciary. They address the natural errors that exist in the form of doctrine known as charter and force a

shift either towards the defense of due process or the support of crime control.

A case known as R v. Tse would be quintessential of this phenomenon. A case which places on the

judiciary the burden of differentiating between the benefit of Due Process and the exploitation of

language, the benefit of Crime control or the abuse of police discretion. Furthermore, this case brought

to light lapses of police accountability in the Criminal Code, but to its credit remedied them in verdict-

thankfully on the side of due process. The following pages will illustrate how the contentions raised by R

v. Tse directly impact the essential pillars of Criminal Justice: the clash of due process vs. crime control,

the necessity for accountability, and the threat of abused discretion. Following a brief synopsis, analysis

of these themes will be crystallized with regard to their affliction in the aforementioned case while also

providing constructive evidence as to why the verdict determined in said proceedings can be seen as the

most beneficial (in terms of proportionality) to the Canadian Justice System.

Synopsis

The September, 2013 Nathan Whitling article published online at mondaq.com entitled

“Canada: R v. Tse- Supreme Court Establishes Notice Requirement for Wiretap”12will be referred to

almost analogously with the R v. Tsecase as it comments on a multitude of pivotal issues raised by the

affair. Through his article, Whitling summarizes the case of R v. Tse as a dispute over Section 184.4 of

the Canadian Criminal Code which grants police authority to initiate emergency wiretaps without judicial

authority while also not requiring them to provide any after incident report to the courts.13 Such as the

incident in question where the defendants were wiretapped in hope of discovering the location of an a

kidnapping victim, of which the police did eventually discover. Defense counsel took issue with this

provision as the ability to wiretap without judicial notification clearly contradicts Sections 1 and 8 of the

Canadian Charter of Rights and Freedoms (1982)14 which secure a citizen from unlawful, unwarranted

search and seizure.

12

Whitling, Nathan. " R. v. Tse - Supreme Court Establishes Notice Requirement For

Wiretaps." www.mondaq.com. N.p., n.d. Tues. 17 Sept. 2013. <http://www.mondaq.com/canada/x/1754 13

Chapter 8, Section 3."_Canadian Criminal Code. Ottawa: Minister of Justice, 2013. 1062. Print. 14

The Canadian Charter of Rights and Freedoms. Ottawa: The Minister of Justice, 1982. Print.

The court ruled in favor of defense and deemed section 184.4 of the Code unlawful for the

aforementioned rationale. The resulting verdict caused amendments to sections 2 to 6 of the Protecting

Children from Internet Predators Act also known as Bill C-30, which was eventually dismissed and

addressed in Bill C-55.15 In summary, the amendments to Section 184.4 involved: a) a notification within

90 days to all persons wiretapped under the provision, b) Annual Reports from all judicial authorities

and police agencies of every province detailing each invocation of section 184.4 and c) usage of

emergency wiretapping is no longer under the discretion of peace officers but solely the police.16

With this synopsis, the key points pertaining to the background, judicial procedure and the

aftermath of the R v. Tse case have been sufficiently depicted. Thusly, an analysis of the first theme of

criminal Justice- Due Process vs. Crime Control- with regards to this case may be properly analyzed.

Crime Control vs. Due Process

As is plainly evidenced by the nature of this case, the models of Crime Control and Due Process are directly in conflict with one another begging the question of which the courts should prioritize. The following paragraphs will examine why Whitling’s position for the preservation of Due Process can be seen as the most constitutional. To counter any possible predisposition, the conflict of Due Process and Crime Control in the

varying levels of the justice system, and most importantly the Supreme Court, is actually an enormously

beneficial aspect of the legal environment of the nation. The constant clash of citizen rights vs state

rights enshrined usually as The Charter against The Police Services Act or The Code ensures that no trail

verdict is made without weighing the powers of the state and the individual. Through this, each verdict

can be seen as constitutional since the powers of the state do not dismiss the rights of the individual.

That being said, the R v. Tse case raises the issue of how to progress when the powers of the state (in

this instance embodied in the police) itself is unconstitutional.

Whitling argues that in a case where state constitutionality is the issue, the courts must rule in

favor of the citizen.17 He rationalizes this decision through the fact that the paramount function of the

court is to deliver ‘justice’. However, justice- regardless of the various definitions it has- cannot exist in a

court where the law does not recognize equality between the legal belligerents. For the court to side

with the state on an unconstitutional matter demonstrates a disregard for Due Process and by extension

the inexistence of justice.

With specific regard to the case of R v. Tse, there can be no question that Sections 1 and 8 of

The Charter were breached18. For the police to wiretap with no judicial license or accountability is a clear

violation of the principles of Due Process, thusly were the Supreme Court to uphold this then a

15

McLean, Tracy. "The Stream - Tracy McLean > Response to the Supreme Court of Canada Decision in R. v.

Tse Act." The Stream - Tracy McLean > Response to the Supreme Court of Canada Decision in R. v. Tse Act.N.p., n.d. Web. 24 Feb. 2014. <http://www.courthouselibrary.ca/training/stream/tracy_mclean/13-08-06/Response_to_the_Supreme_Court_of_Canada_decision_in_R_v._Tse_Act 16

LEGISLATION RESPONDING TO SUPREME COURT DECISION IN R. v. TSE PASSES THE HOUSE OF

COMMONS."Government of Canada, Department of Justice, Electronic Communications.N.p., n.d. Web. 23 Feb. 2014. <http://www.justice.gc.ca/eng/news-nouv/nr-cp/2013/doc_32869.html>. 17

Whitling, Nathan. " R. v. Tse - Supreme Court Establishes Notice Requirement For

Wiretaps." www.mondaq.com. N.p., n.d. Tues. 17 Sept. 2013. <http://www.mondaq.com/canada/x/1754 18

The Canadian Charter of Rights and Freedoms. Ottawa: The Minister of Justice, 1982. Print.

precedent for citizen’s rights violations and lack of accountability would be set. In this line of thought,

Whitling believes that the decision to dismiss the police stance despite the incriminating evidence was

the most legally correct, as it did not jeopardize the repute of Canadian Justice.

One may argue that the act of dismissing incriminating evidence in itself, raises questions about the

legality of Canadian Criminal Justice. While it is irrefutable that accepting the evidence would guarantee

a just verdict, we must simultaneously observe the precedent it sets as well. Although the verdict would

be legitimate, the precedent it would set would –as previously mentioned- produce a disregard for

citizen’s rights and lack of police accountability. Which altogether ignores Due Process ultimately making

accepting the evidence the darker of two evils.

Given this reasoning it must be evident as to why the preservation of Due Process in any justice system

is integral, and why the R v. Tsedecision to dismiss evidence acquired through unconstitutional means

ensures the legitimacy of the Canadian courts. Yet to more thoroughly understand the significance that

this case has on the fundamentals of Criminal Justice we must as well explore the necessity for police

accountability.

Accountability

As was made clear in the previous section, the concept of justice cannot be facilitated in a

system that fails to observe the principles of Due Process. With that in mind for Due Process to exist and

for the model of Crime Control to be separate from state tyranny Police Accountability must be present

in all levels of the Justice System. This section will explore the significance of the accountability lapse

brought to light in the case of R v. Tse.

Before we examine the relevance of R v. Tse in this matter let us first conceptualize the role of

accountability in the justice system and by extension its necessity. Accountability- specifically police

accountability- refers to all agents of the state being able to legal justify all actions and decisions made

in regards to their duties listed in The Police Services Act.19The reason this exists is to ensure that all

actions taken by the state are, in fact, within state power. This is done to ensure that the state does not

abuse its power by infringing-whether conscientiously or not- on the rights of its citizens as enshrined in

The Charter20. In doing this, due process is not ignored because all agents of the state (primarily police

officers of all stations) must prove that they have acted within their state regulated rights as well as

refrained from infringing on the rights of the citizen. This is how police accountability protects due

process, and as previously stated justice cannot exist where due process does not.

Understanding that we can see why the lapse of police accountability in Section 184.4 of The

Code is such a pressing matter. The section –in essence- grants any peace officer full authority to breach

Sections 1 and 8 of The Charter (The sections that protect a citizen from unwanted and unnecessary

19

Pratt, Anna. "Policing: Overview ."Criminal Justice Systems.York University.York University, Toronto. 24

Oct. 2013. Lecture

20Pratt, Anna. "Accountability."Understanding Criminal Justice (I).York University.York University, Accolade

West, Toronto. 17 Sept. 2013. Lecture.

search and seizure) without any judicial authority and, furthermore, no requirement of notification.21

We can see in that sentence alone the gravity of section 184.4. With regards to the verdict of R v. Tsethe

section was remedied to include a clause requiring 90 day notification to the wiretapped persons,

restriction of the power to only police agencies, and that regular reports pertaining to the exercise of

this right be delivered to judicial authorities regularly.

Being an advocate of Due Process, Whitling supports the remedies to Section 184.4 completely.

In his article he cites a submission from the Criminal Lawyers’ Association of Ontario to illustrate his

stance:

“. . . notice is neither irrelevant to s. 8 protection, nor is it a "weak" way of protecting s. 8 rights,

simply because it occurs after the invasion of privacy. A requirement of after-the-fact notice casts a

constitutionally important light back on the statutorily authorized intrusion. The right to privacy implies not

just freedom from unreasonable search and seizure, but also the ability to identify and challenge such

invasions, and to seek a meaningful remedy. Notice would enhance all these interests. In the case of a

secret warrantless wiretap, notice to intercepted person stands almost alone as an external safeguard. ”22

This passage demonstrates quiet clearly the significance of the wiretapping taping affair brought

about in R v. Tse. The issue lies not with the ability to wiretap, but with the ability to wiretap without

any accountability. By installing these remedies, the Supreme Court has guaranteed police

accountability in a matter, which relates directly to the upholding of The Charter. A matter where the

need for accountability- the need for the state to prove it acts within its powers- is paramount. And as

stated prior and should be stated many times more, the line between crime control and state tyranny

runs fine defined only by the ink of accountability.

Arguments against the decision to remedy 184.4 are few since the lapse of accountability is

quite clear. However the few that do exist claim that the need for police to react in emergency

situations is a necessary factor in the defense of peace. Granted this is true, which is why the remedies

do not obstruct the power to wiretap, choosing instead to only require notice that this has occurred.

Thusly allowing the police to act in the defense of the populous without infringing on The Charter.The

perfect balance of Due Process and Crime Control.

Having now seen how the concepts of Due Process, Crime Control and Accountability all work in

conjunction to facilitate justice. Let us now observe how these create conflict between the levels of the

justice system, and why this adversarial system allows us to fully realize the values of all three concepts.

Myth of the System

The previous section touched briefly on the benefits of conflict through the varying levels of the Criminal Justice System, by claiming that an adversarial system is the most effective for determining the most valid verdicts. The remainder of this section will examine how this is possible with respect to the previously discussed concepts of Due Process, Crime Control, and Accountability.

21

Chapter 8, Section 3."_Canadian Criminal Code. Ottawa: Minister of Justice, 2013. 1062. Print. 22

R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531. Ottawa: Minister of Justice, 2012. Print.

Admittedly it is a fairly common notion that the conflict between the stages of the criminal

justice system ex. Conflict between a police push for conviction and a judge’s push to observe due

process, or in penumbral cases the various interpretations of what is a crime. Some would argue that

such conflict is what breeds disparity in the system and that a more uniform, likeminded, system would

produce more consistent verdicts at much faster rates.

Perhaps. However this system has never been tested because a system such as this can ever be

actualized in reality. Too many people of different moralic backgrounds, different interpretations of

justice with an assortment of interpretations on the law itself exist in the justice system to make it

uniform to that degree. Yet when stated with that phrasing it appears that support for the adversarial

system exists only because mechanisms to realize the more uniform kind fail to exist. But that is only

one factor.

Since we do live in a world where all people hold various perceptions of justice a system which

allows us to express these various perceptions and through argumentation and the proposal of evidence

(and through said argumentation determine which perception is the most accurate for the situation at

hand) is the most realistic, applicable and effective. A system that takes into account the differences

between the plethora of views held by citizens, and accounts for them all to be expressed is not the

perfect system. But it is the system that realizes justice in its most fundamental sense: a perception.

Facilitating the argumentation of the various perceptions begets the verdict that takes into account all

of the interpretations of law that are relevant to the case and thusly the verdict is one that applies the

most holistic and collaborative of options.

We can this demonstrated most prominently in the case of R v. Tse. Whitling states in his article

that the clear police push for conviction was due to the incriminating evidence that was discovered

through their wiretap23. This belief in Crime Control steams from the notion that the role of justice is to

prevent crime were possible, just as the police have in initiating Section 184.4 of The Code. The defense

shares the view that was promulgated in section 1 of this paper, that justice without due process is not

justice at all. Immediately we can see conflict between the policing stage of the justice system and the

judicial stage. The conflict here is between forgoing due process to convict or forgoing conviction to

uphold due process. A pinnacle example of various interpretations of justice causing conflict in the

system. The argumentation that arose from it revealed the necessity for Due Process (as was discussed

prior) as well as the necessity to protect society from those that were proven to be guilty.

Fortunately in a scenario such as R v. Tse, although Section 184.4 was deemed unconstitutional

and remedied immediately the evidence was still admitted under the terms of Section 24 (2) of The

Charter (A section which forbids evidence if it violates citizen’s rights and brings the court into

disrepute)24 since 184.4 was legal the time of invocation and the dismissal of incriminating evidence

would bring the court into further disrepute the wiretapped evidence was admitted. This resulted each

defendant being found guilty and sentenced between 10 to 18 years while Section 184.4 was remedied. 25

23

Whitling, Nathan. " R. v. Tse - Supreme Court Establishes Notice Requirement For

Wiretaps." www.mondaq.com. N.p., n.d. Tues. 17 Sept. 2013. <http://www.mondaq.com/canada/x/1754 24

The Canadian Charter of Rights and Freedoms. Ottawa: The Minister of Justice, 1982. Print. 25

McLean, Tracy. "The Stream - Tracy McLean > Response to the Supreme Court of Canada Decision in R. v.

Tse Act." The Stream - Tracy McLean > Response to the Supreme Court of Canada Decision in R. v. Tse

To briefly summarize, although the policing and judicial levels of the justice system were in

conflict during this case, the conflict itself is of greater benefit to the system. Since without the

arguments put forth by the defense the unconstitutional Section 184.4 of The Code would not have

come to light and would remain a threat to due process. The case of R v. Tse, while controversial,

depicts the benefits of adversary through the Canadian Justice System, as it augments itself to adapt to

lapses as well as the various views of justice that its citizens hold.

Conclusion

At the debut of this paper it was mentioned that R v. Tse was a case which demonstrated the

importance of Due Process in the penumbral cases of the Justice System. In exploring and

demonstrating the legitimacy of this notion, the commentaries of Whitling in article Canada: R v. Tse-

Supreme Court Establishes Notice Requirement for Wiretap have proved to be the crux of this

argumentation. His statements have elaborated on why the precedents set by the court (especially the

Supreme Court) must always reflect the principles of Due Process without which the justice system

would fail to hold merit. Furthermore, his work clearly points towards the effectiveness of the remedies

brought about by the court following this case as well as how and why they augment the always potent

need for accountability in the Justice System.

In closing, the purpose of this paper had always been to comment on the value of Due Process.

Not simply as a recapitulation of an overarching theme prevalent in all strands of jurisprudence, but as

an assessment on the values of Criminal Justice. Rather than reuse statements that were already written

and forgotten I shall simply close with allusion to the sentiment of Robert Bolt “I’d give even the Devil

benefit of the law…”26 to illustrate the most perfect crystallization of this paper’s essence. Since to do

without Due Process is to do without Justice.

Act.N.p., n.d. Web. 24 Feb. 2014. <http://www.courthouselibrary.ca/training/stream/tracy_mclean/13-08-06/Response_to_the_Supreme_Court_of_Canada_decision_in_R_v._Tse_Act 26

Bolt, Robert. A Man for All Seasons.Petersfield: Samuel French, 1966. Print.