Tuesday, January 26, 2010

This Is Old City Hall, Day 6

When I got to Justice K-----'s office this morning, he was listening to the news on and old fashioned radio. The signal only came in clearly if he kept his hand on it, so he was doubled over in front of it. A news report was saying that the French are instituting a ban on the Muslim headscarf that covers a woman's entire face.

His Honour asked me what I thought of that. I figured he was testing me. I told him that it was in keeping with what little I knew about France's assimilation policies but that I didn't think it would jibe with Canada's immigration philosophy. I tried to call the word 'integration' to mind but failed and instead mumbled something about 'mosaic theory' as if that were a real term of art. As it turned out, our views did not correspond.

"I'm an immigrant," began His Honour. "And my feeling is, this country is doing me a favour." I felt every inch the sheltered, smug, white, liberal Torontonian. But without any sheltered, smug, white, liberal Torontonians, the criminal defence bar would be substantially reduced, wouldn't it?

After that exchange, I spent the morning watching K----- J. preside over a s. 11(b) Charter argument in Impaired court. It was a good fight: the public has a strong interest in seeing drunk driving offences prosecuted, but the delay was egregious -- seven months for the Crown to disclose its standard toxicology report to the defence, with no explanation offered -- and the prejudice to the accused rather extreme.

K----- J. was sharp in court. I assume he's always sharp. This morning he was airdropped into this courtroom because another judge called in sick, but he needed no refresher on the case law governing s. 11(b), and in fact he rebuffed counsel's every attempt to bring cases to his attention. Instead he attacked every position taken by either Crown or defence, like a Velociraptor testing all the fences in Jurassic Park. His judicial philosophy might be that he is doing his job if Crown and defence are eviscerated in equal measure.

Defence counsel took some time to adapt to His Honour's fast-and-dirty approach. The lawyer (whom I recognized as one of the adjunct professors of Trial Advocacy at Osgoode Hall) wanted badly to rely on the cases he had prepared, and it wasn't until after the morning recess that he resigned himself to letting them slide. The Crown had the benefit of seeing the defence raked over the coals first, and so was more prepared to state the facts and his position relative to them. Nevertheless, His Honour darted and jabbed at Mr. Crown until he was turned inside out and could barely keep straight his initial position.

At the end of submissions, K----- J. stated the case back to the parties, off the top of his head, for thirty minutes. He included the parties' respective positions and where they differed, and concluded with a criticism of the delay on the part of the police and Crown. The case was thrown out. Back in the office, we discussed the gravity of throwing out a case of that nature after more than a year of wasting the court's time and the public's money. We discussed the fact that the Crown who appeared in court doubtless hadn't had carriage of the file for more than a week, and very likely had nothing to do with the series of delays that gave rise to the s. 11(b) motion. We discussed the futility of that remedy, which comes as a slap on the wrist of the laggard justice system long after anyone responsible for the mess has lost track of it and moved on to a thousand more pressing files. We discussed what kind of lawyer I ought to be and we concluded that it would surely be a different kind.

  • I really must look into this famous Askov decision everyone is so juiced about.
  • During our discussion I told His Honour that he reminded me of a velociraptor in court. I think he was quite pleased.
  • Neck tattoos today: none. I must have been sitting on the wrong side of the court.

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