the other half

Markian Assangerberg, Billionaire Info Terrorist

2012-01-24T22:31:00.001-05:00

Hierarchy of Wrong

2011-08-11T18:33:00.013-04:00

People are always doing terrible things. They're not necessarily terrible people; sometimes they believe themselves to be in the right. Lawyers exist because sometimes it turns out the not-terrible people were right about being in the right. (You did some terrible things earlier today and you didn't spare a thought for whether you were in the right -- I saw you and so did your God.)

But how to explain all the rioting this year? And, more importantly, what of the theft of my bike last weekend?

Hierarchy of wrongdoing:

things that are not wrong
things that are not wrong if done for the right reasons (I know there's an age gap, but she's eighteen and I love her!)
things that are clearly wrong but about which one has no choice (if I don't steal this loaf of bread I'll die, and later Jafar will marry Princess Jasmine!)
things that might not seem wrong if done for the right reasons but actually are still wrong regardless (you don't understand! she's a really mature fourteen! and I love her!)
things that are just wrong

Sometimes rioting could fall into Category Three. If one lives under a tryrannical government, for instance, and foments a popular uprising. People will get hurt in the revolution, but lives will be saved when the thought police are disbanded. Ensure that nobody gets hurt, and maybe you can even keep it in the second category! But if you're running around indiscriminately killing shopkeepers in the name of the revolution, it's down to Category Four with you. Your cause is still just, but you're not.

And if you're just burning down hundred year old shops throughout England without any semblance of political message, or stealing iPods because the Canucks lost, there's no saving you. Category Five.

This is where you will find the individual who stole my bike. (Unless I find him first, in which case you won't find him at all 'cause I'll have arranged to have him sent to a mental institution with a false set of medical records ensuring both that his real identity is never known and that he is kept sedated 24/7 due to his violent nature LIKE BATMAN DID WITH RA'S AL GHUL THAT ONE AWESOME TIME.) This guy wasn't feeding his children with that bike. He was not making a statement, or operating under the belief that his actions were justified. He saw a bike chained up in a locked garage, and made a conscious and concerted effort to steal it. He returned with wire cutters to get into the garage, despite the presence of security cameras (ach! foiled by a baseball cap! dammit!), cut the bike lock with a bolt cutter, nonchalantly wheeled the bike back across the garage and disappeared ~~like~~ a thief in the night.

Left to my own devices in the company of this individual, I might find myself in Category Two.

Chinese Wall

2010-11-03T10:57:00.017-04:00

The first lesson in the beginner politician's manual should be how to speak so as not to offend broad swaths of people. Unless the speaker is a linguistically precise comedian who makes his or her living by producing incisive social commentary, there's little to be gained from offending people. Seldom does a politician a good comedian make.

But political correctness that causes us to dance around what we really want to say, watering down the nomenclature while adding nothing of value, should not be tolerated.

This week Nigel Wright left a private equity firm on Bay Street to become Prime Minister Harper's chief of staff, opening himself up to accusations of conflicted interests. He has suggested that he will erect an "ethical wall" to separate him from such conflicts. It has also been called a "conflict of interest screen". Either term would be perfectly reasonable in the circumstances, if we didn't already have a better one.

There is nothing objectionable, let alone racist, about a Chinese wall, yet the government, opposition and media have taken pains this week to avoid using the common and accepted descriptive device. Law firms throw them up whenever a new lawyer is hired from a firm with which they have files, yet the term is beginning to disappear even from professional responsibility textbooks. Why? Who are we trying to save from offense? Certainly not the Chinese. Does anyone think for a moment that Chinese Canadians are somehow ashamed of the Great Wall of China? Merely mentioning an ethnicity or nationality is not a racist slur. Going to great lengths to avoid doing so turns our language into a dull expanse of colourless nouns and verbs, in this case by ignoring a great wonder of the world.

The term is accepted for a reason. No one should be ashamed of it. The wall is more than six thousand kilometres long. It can be seen from space. [EDIT: No it can't, as it turns out.] It turned back marauding Mongolian ~~hordes~~ itinerant combatants. Isn't that more evocative than any barrier that could be provided by some flimsy screen, or worse, the suspect ethics of politicians?

Chad is Ugly from Space

2010-10-06T13:56:00.010-04:00

Dear Google,

Please fix Chad. The images you've stitched together make it look like a face with an unfortunate forehead birthmark.

Thanks.

Also, please fix Other Chad. Both his brother and his wife are way more awesome than he is. That's got to be rough.

Sometimes Things Work Out

2010-09-29T16:50:00.014-04:00

When a four week trial settles on its second day, there are, to paraphrase Joker, a lot of little emotions to savor. The client's happiness in receiving an award and recognition without having to go through the hassle of a whole trial.

The jury's evident confusion about being brought in, instructed about their important and complicated role, and then being told that they can now go home, having done nothing but listen to some promises about what they were going to hear, and then taking a lunch break. The sadness of London news stalwart Nick Paparella, hanging out all day and having nothing to report.

The palpable rage of an old man tasked with presiding over a case that probably should've settled long ago. The humility of defense counsel, chewed out for being too argumentative in his opening statement.

The shock from plaintiff's counsel, reeling from the old man's admissibility ruling that painted the trial's potential in sombre shades vastly different from the vivid technicolour in which we had previously been viewing it.

But all of this pales in comparison to the emotions I'm feeling. I'm happy that the client is happy. I'm entertained by the way settlement rumours float around the office. I'm disappointed that I don't have a trial to drop in on for the next four weeks.

And I'm stoked that I don't have to finish all the assignments I was working on for this file.

United Kingdom of Rigel VII

2010-08-11T18:37:00.003-04:00

Bill Something

2010-07-27T16:15:00.003-04:00

Chapter 43: The Tax Principles of Family Law

2010-05-17T00:17:00.007-04:00

Fourteen Questions Not Answered on the Law Society's Articling FAQ Page

2010-04-27T12:05:00.004-04:00

humourous coffee mug, or no?
what is the appropriate number of Batman posters with which to decorate one's law office?
the mud and rust on my truck: too embarrassing to park where clients might see it?
if I buy an expensive TV with my new income, but I have no time to watch it 'cause I'm always at work, have I really bought anything?
can I wear headphones in my office, or do I have to sit in silence, saddened by the lack of Norwegian Black Metal in my life?
my new firm laptop: will it be able to run Arkham Asylum?
do I have to start eating adult food, or can I eat KD for lunch at my desk?
how much of what I've seen on Mad Men still applies to the office environment?
Harvey Dent: appropriate lawyer idol?
bathing: like, every day?
how much of my attention has to be on work for me to justify billing fifteen minutes while I watch The Daily Show?
how do I respond when clients ask to be represented by someone with the ability to grow facial hair?
will the Justin Bieber ringtone on my firm-provided phone negatively affect hireback?
do I have to explain the whole articling process to girls at bars, or can I just start saying "I'm a lawyer" now?

Universities Can Tell Ann Coulter to Shut Up without Canada Becoming a Police State

2010-03-25T03:16:00.013-04:00

Re: Glenn Greenwald's "The creepy tyranny of Canada's hate speech laws"

Ann Coulter should certainly be allowed to speak freely, if only to demonstrate the ridiculousness of her opinions. And the official position should respect the public enough to differentiate for themselves between her shameless shit-disturbance and legitimate political discourse. And it has! Coulter spoke, insulted ethnic minorities and offended everyone unfortunate enough to wander into her sphere of toxicity. Then she got a letter asking her to watch her mouth. There is a significant difference between politely cautioning someone about the state of the law and "threatening someone with criminal prosecution". (The Vice Provost of the University of Ottawa does not have a say in who is and who is not prosecuted.)

Greenwald, however, is under the mistaken impression that what he calls "Canada's intrinsically subjective 'hate speech' laws" are responsible for this situation. He makes no mention of the Charter, nor this country's robust protections for political speech, instead equating a university official's letter with Big Brother-style thought policing.

Canadians' evident distaste for Ann Coulter has nothing to do with our laws, and everything to do with our advanced civil society. We're not a police state, we just don't countenance the pathetic infotainment that passes for political commentary in the United States. Unlike in America, our newscasters are more than babysitters waving shiny toys to keep us distracted between Cialis commercials. We're much the better for it. We allow political expression of all stripes, pushing social and political discussions to their logical limits in precisely the style of liberty John Stuart Mill envisioned. We just don't allow inflammatory hate speech. As a result we seem to have less hate.

Greenwald's main error is his conviction that all speech is of equal value. It is not. In a country as diverse as this one, verbal attacks on visible minorities serve no legitimate purpose, and are prohibited. This is not an arbitrary or draconian law, it's a progressive one. We have simply elevated the cliché of shouting "fire!" in a crowded theatre to the national level. No sane country allows any person to say anything at any time. Such extremist libertarianism leads to real disasters, not to mention the Hobbesian breakdown of society. The theoretical underpinnings behind the cliché are the same as those which justify limiting hate speech against vulnerable groups.

Ultimately, Ann Coulter, abhorrent though she is, does not pass the threshold for hate speech. She would not be prosecuted in this country for the simple reason that she is not taken seriously enough to warrant such official sanction. But that doesn't mean a respected university must ignore public outcry and let this hateful woman take up valuable campus real estate to spew her self-aggrandizing filth.

Limiting Ann Coulter's exposure is a valuable public service. It's not evidence of our Canadian closed-mindedness. It's a demonstration of our good taste.

Imagine

2010-03-05T00:15:00.000-05:00

LSUC Grants a Holiday

2010-03-04T14:32:00.017-05:00

In the middle of restitution class today, I received an email from the Law Society of Upper Canada, notifying me that I had an urgent message waiting to be read on their online system:

Dear Candidate,

Due to circumstances beyond the control of the Law Society of Upper Canada, please be advised that the Barrister and Solicitor Licensing Examination dates for June 2010 have changed....

Seems they've pulled everything forward two weeks, meaning I'll be writing the Ontario Barrister exam on May 25, and the Solicitor exam on June 8, two weeks before the original dates for both.

As class ended, students erupted with complaints. Most seemed to center around travel plans now destroyed, and deposits likely lost. "Travelocity is getting an email today," claimed one individual, sounding resigned. I made my own cursory objections via a status update and my MSN display name, bastions of lazy protest both.

But, really, this development might just play right in to my hands. How would I have used those extra two weeks? Studying? Hardly.

In all likelihood I would have spent as much time as possible sitting outside in the spring sun, resuming my annual game of chicken with the family history of melanoma.¹ Certainly I would have had my exam materials with me, but a good patch of afternoon sun demands an equally good nap, and the outdoors are not conducive to reviewing papers and books in an organized fashion. Now, due to these new time constraints, I'll have to find somewhere to get some real work done.

Best of all, the keeners are in the same boat! There was no way I would properly use the ample time I had been given. But the Other Half would have. Now much of their advantage has been wiped away. I've spent my life doing things at the last minute, with little preparation and even less review, while they went to office hours and asked questions of profs, and created multiple drafts of their work. Foolish.

In the span of one month, I will have to relearn everything I've forgotten over the last 6.5 terms (the silly dual-degree program requires a summer term of American tax law--also blissfully forgotten), the real estate law to which I currently pay negligible attention in class, the entirety of family law (avoided like the plague), and any number of other testable subjects I don't even know about. Daunting, certainly. But I've been training for this, while the keeners have not. By never doing anything early, wasting valuable study-time reading Batman comics and writing inane blog posts, I've developed a heightened ability to perform under time constraints.

I'm like a blind man with a refined sense of smell. Or like Jughead, when he claimed to have developed the most powerful jaws in Riverdale through disciplined food consumption. Now there's a guy who knows when a good nap in the sun is called for.

So here's to the procrastinators, the real beneficiaries of LSUC's erratic behaviour!

¹On the other hand, melanoma may have the upper hand this year, as some of the time I spend outside will shift from the comparatively weak sun of early-May to the burning power of mid- to late-June. By July, it will be time to book a new appointment with the dermatologist.

The End of 2-for-1 Credit and the Fallacy of 'Getting Tough'

2010-03-02T19:34:00.003-05:00

The March 8th 2010 issue of Maclean’s, “Canada’s magazine”, has this to say about the elimination of two-for-one credit for pre-sentence custody:

Do the time

“It seems like a no-brainer: convicted criminals shouldn’t get a break for prison time served prior to court dates. And yet, it’s taken four years for the federal government to enact legislation ending two-for-one jail credits. As the old saying goes: you do the crime, you do the time—the whole time, not just half. Convicted criminals have been gifted shorter sentences by the justice system for too long. It’s time to get tough.”

Fortunately, old sayings do not figure among our sentencing principles. The objectives of our sentencing regime are enumerated at section 718 of the Criminal Code, and they are as follows:

(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Parliament enacted those objectives to guide the courts in fashioning sentences that are just and appropriate to the circumstances of each case. By looking beyond the obtuse imperative to “get tough”, a judge can craft a sentence that neither threatens the safety and security of the public nor condemns the offender to a lifelong cycle of recidivism.

Equitable and progressive though they might be, however, Parliament’s sentencing principles do not take into account the backlog that plagues the criminal justice system. Too often, prisoners languish in dangerous, dirty, overcrowded jails for weeks and months before their cases can be heard.

It was this dubious “gift” that the two-for-one sentencing regime was meant to address: the policy acknowledged that outrageous pre-sentence delays, coupled with deplorable conditions in some Canadian prisons, resulted in suffering that our sentencing provisions did not countenance. Moreover, this hardship is utterly preventable, but for a lack of public or political will. (As ever, “get tough” is a politically unassailable stance.)

To be sure, giving double credit was a bandage on the problem, not a curative. Jail conditions remain execrable, and the Attorney General’s “Justice on Target” initiative has only just begun to rein in administrative delay. But instead of curing these ills, the government has decided to rip off the bandage.

In that respect, Maclean’s is right: it’s a no-brainer.

This Is Old City Hall, Day 19

2010-03-01T13:14:00.010-05:00

It's the day after reading week. I've been on the Olympic Tourist diet for two weeks: nachos, wings, caesars and beer, some of the foregoing items recurring more frequently than others. My suit feels more ill-fitting than usual as a result, and I was already half way to looking like Columbo as it was.

My browser thinks that "caesar" is spelled wrong, because the world outside Canada is missing out on that sensational beverage.

I'm with a new judge this week: Judge C-----. She is a recent appointment; prior to this she was a crown in Scarborough. She says Scarborough is a better place to prosecute than downtown, because you get thrown into the deep end faster. I don't know why everybody likes the deep end so much.

She hasn't quite mastered the corridors of Old City Hall yet: she doesn't know where all the secret stairwells go. She does know that there used to be a morgue in the attic, to accommodate the men who were hanged in the central courtyard. The pipes that fed the tubs are still visible, she says. I don't know what morgues use tubs for and I don't ask Her Honour. Still though: why would anyone want to work elsewhere than here?

This morning I watched the trial of an individual charged with assault. The charge arises from a brawl in front of a nightclub -- the same one mentioned in the prosecution of the MMA fighter two weeks ago. It must be a bad news place.

The alleged victim showed the court pictures of his injuries. According to him, just as he was leaving the club, he was punched in the back of the head by unknown aggressors. Outside the establishment some time later, he flagged down a taxi, but before he could get into it a group of young toughs beckoned to him and showed him their rings, which were caked with blood from the back of his head.

The young toughs (see composite at left) challenged the complainant and his friend to a duel, noting that their numbers were even-strength. The complainant alleges that he did not accept this challenge but the accused and his friends began raining blows on him nonetheless. One of these blows resulted in a scratch on his cornea. His friend tried to intervene on the complainant's behalf and likewise went down.

I used to be a bouncer. Not a strong bouncer or one who was at all effectual, but a bouncer nonetheless. I have heard this song-and-dance before: the victim, just trying to make his way home, stymied in his efforts by a persistent aggressor whose only apparent motivation is bloodlust. It has never rung true for me and it does not ring true here. If you wanted to get into a cab and peace out, could the accused really have stopped you? Or did you turn back and defend your honour from some drunk idiot whom you have never seen before and will never see again?

Some young men (and some old men -- see below) ascribe much importance to not backing down from fights.

The justice system doesn't care that you were defending your own honour, your buddy's honour, your girlfriend's honour or the honour of your Stacy Adams shoes. If two people apply force to each other without consent, they have both committed assault.

Worse: no matter who started it, the party who wins the fight is the party against whom it is most expedient to lay charges. Had he been a better fighter, the complainant might have been the accused.

Observations

The lead investigating officer looks just like Idris Elba. The crown looks just like Sam Waterston. They make a good team.
A question for defence counsel: do you ever advise your clients about proper court attire? Maybe recommend to a young client that he shave his teen 'stache before leaving home, and pick a shirt with buttons over his black housebreaking-issue hoodie? The court is composed of people, for better or worse. Mightn't those people be more inclined to leniency if the accused before them doesn't tickle their prejudices by dressing the part? By bringing this up, am I being classist and/or racist, or just pragmatic? Either way, aren't I keeping the best interests of my client at heart?

A word that the crown made up?

"concertation"

This Is Old City Hall, Day 18

2010-02-27T15:34:00.015-05:00

Another slew of drug pleas. The first accused can't afford a lawyer and has been denied legal aid. He has attended CLASP for legal assistance from Osgoode students -- but he's charged with possession for the purpose of trafficking, a straight indictable offence, so unlicenced students aren't allowed to represent him. So another guy with criminal charges gets to "wing it" in court. Why bother with criminal lawyers at all?¹

The court recesses for twenty minutes after HALF AN HOUR, while counsel get their s**t together. I'm starting to recognize the regular OCH lawyers, just from sitting in hallways. In the foyer, I recognized defence lawyer Kim Schofield from her well-earned Toronto Star style write-up. Plus Mister Mayor; he's always here.

I think I should get some cards printed and put them in the lawyers' lounge. "NEED AN ARTICLING STUDENT FOR CHEAP?"

I bailed on plea court in favour of a high-profile bail hearing relating to the death of a cab driver two weeks ago. In that courtroom I had difficulty hearing: I had a chattering radiator on one side and an interpreter on the other. He (the interpreter, not the radiator) was addressing the parents of the accused. They weren't thrilled I was there. Evidently they didn't think that their son's travails should be treated as a learning opportunity for nosy law students.

Counsel thought I might be the press, which in a way I am. He called for a publication ban and was obliged. Thereafter I didn't record what I heard -- but it was juicy.

Remarks to an accused person (in another courtroom), made in my head

You knew when you got up this morning that you were going to court, so you put on your finest court apparel: black jeans, paired with an oversize black hoodie with silver pattern of interlocking American dollar bills in large denominations. I salute you.

Some ridiculous Criminal Code provisions

CC s. 163(1)(b) makes it illegal to possess crime comics.
CC s. 167 makes it illegal to produce or appear in an immoral theatrical performance.

¹ Maybe because it's in the Charter?

This Is Old City Hall, Day 17

2010-02-19T20:32:00.015-05:00

There's a poster on a pole outside Old City Hall advertising something called Zeitgeist Toronto:

"We have the opportunity to build a new civilization. Your bankers, lawyers and politicians -- GONE because they are NO LONGER RELEVANT."

On Day 17, I heard a lawyer put forward the argument that his client had had "no intention of smoking crack", but had put a small quantity of the drug in his pocket "just to be polite" to an acquaintance.

If that's not a repudiation of the Zeitgeist platform, I don't know what is. How could society function without such fearsome advocacy?

Observations

Justice G---- has a giant portrait of Lenin mounted in his chambers. No matter what your political stripe, that is magnificent. I told him as much.
I met a lovely gentleman while waiting outside a courtroom. He was there to make his thirty-second court appearance for the purpose of obtaining counsel and setting a date for resolution or trial. | EDIT, February 20: I don't mean his court appearance was thirty seconds long. I mean he had appeared without a lawyer and pushed the matter back on thirty-one prior occasions.
Inscrutable handwritten note of the day: "Poor old man and creepy longhair -- what are they doing here?"

This Is Old City Hall, Day 16

2010-02-19T17:05:00.029-05:00

His Honour was feeling vital when I got to his chambers on the morning of Day 16. He had been for a morning swim at the Y and was expecting a shipment of olive oil from Greece. What judge wouldn't be stoked? Such was his generosity of spirit that when I produced a two-page research memo¹ for him, he commended me for my initiative and pretended it wasn't at his request.

He told me that he had been speaking with Justice S-------- recently, and that they wanted to get the articling ball rolling for me. (It's gracious of both of them not to inquire as to why I haven't been able to move that ball on my own.) Like His Honour, His Honour didn't seem enthusiastic about my bright idea to take a year off, come what may.

I watched the direct- and cross-examination of an officer who conducted a motor vehicle stop that resulted in charges of fail-to-comply-recognizance and possession of crack cocaine. The stop took place in downtown Toronto's club district. My notes indicate puzzlement that the controlled substance was crack cocaine, not powder, but who am I to know what club kids are into these days? I was always more of a pub person.

Two different accounts of the incident emerged in the courtroom. Which story one subscribes to depends where one falls on the liberty/security, anarchy/order spectrum. According to the truncheon-swinging stormtroopers and their fascist cohorts, the incident was a matter of public safety wherein a person demonstrably dangerous to society was taken off the street and brought to justice after repeatedly abusing Her Majesty's patience and generosity. According to the glassy-eyed defence with its boundless tolerance for drug use and impaired driving, the incident was a series of escalating Charter violations culminating in a highly improper arrest. What is clear, however, is that both parties, police and accused, made some errors in judgment. Both views are noted below.

It was New Year's Eve, close to 3:00 a.m. The accused and his girlfriend were leaving Light Lounge at Richmond and Peter streets, en route to an after-hours club, when they were stopped by police for alleged reckless driving [accused mistake #1]. When the driver stepped out of his vehicle [accused mistake #2], the investigating officer noticed a cell phone on the front seat [accused mistake #3], in breach of the driver's recognizance.

(From the fact that the driver had been ordered not to possess a cell phone, we may deduce that he had some trafficking charges outstanding at the time he was pulled over. That makes the discovery of cocaine in his vehicle a good deal worse.)

After espying the cell phone, the officer lodged the driver in the back of his cruiser. At this point, it seems the officer either did or did not advise the ~~driver~~ accused of his right to counsel, per s. 10(b) of the Charter. The officer's duty notes do not reflect whether the caution was issued [officer mistake #1]. Immediately after so advising or not advising but before placing the accused under arrest, the officer entered and searched the vehicle [officer mistake #2]. The thought process behind this was as follows:

"One cell phone having been found, [the officer] was searching for other telecommunications devices."

Right, because most people get two when they're forbidden from having any.

In due course, the officer located a baggie of crack cocaine [accused mistake #4].

Returning to the cruiser, the officer addressed the accused, and either

(a) held up the baggie of crack and asked, "What's this?", thereby posing an incriminating question before advising the accused of his right to remain silent [officer mistake #3],

OR

(b) held up the baggie and said "Look what I found!" or words of like effect, thereby -- according to defence counsel -- attempting to elicit an incriminating statement from the accused before advising him of his right to remain silent,

to which the accused replied, "I forgot that was in there" [accused mistake #5].

Then it gets a little nutty. Not satisfied with the incriminating admission he had just elicited, the officer made as if to arrest the passenger in the vehicle, the accused's girlfriend. Right before placing the handcuffs on her, the officer turned back to the accused and said, eyebrows raised, "Are you sure?" [officer mistake #4] -- to which the accused replied, "Whatever you find in there, [my girlfriend] had nothing to do with it. If you find anything it's mine" [accused mistake #6].

Clearly, some mistakes were made on both sides. His Honour took stock of them and released his decision that afternoon.

So what happened? The evidence was

(a) obtained in a manner that gravely violated some or all of sections 7, 8, 9 and 10(b) of the Charter, such that, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute;

(b) obtained in a manner that violated some or all of sections 7, 8, 9 and 10(b) of the Charter, such that admission of the evidence would not bring the administration of justice into disrepute;

OR

(c) not obtained in a manner that violated the Charter.

I leave it to you to decide which.

Terms that lawyers use too much

"on all fours with" -- who said this first? it sounds dirty
"dispositive" -- is that even a word? my Google Chrome spell check thinks not
"in terms of", "with respect to", "as far as", "by way of"; lawyers have had drilled into them the value of focusing the judge's attention; they use highly artificial segues to do so.

Apropos of nothing

Where are these after-hours clubs? Is it like Mad Men -- are there passwords? Is one permitted to attend if one does not have crack cocaine on one's person?
I sat at the counsel table throughout the evidence and Charter submissions. At one point the accused caught me drawing a cartoon of his lawyer holding a gun. He seemed to like it well enough.
History will record Day 16 of my Old City Hall tour of duty as the day that Google added something called "Buzz" to Gmail users' accounts. It aggregates every note, chat, blog, tweet, flerg and squib that I post to the ether, and those of all my Gmail-using friends as well. It makes my phone vibrate twice as much as usual. As soon as I hit PUBLISH POST on this bad boy, it will do so again.
Below: a misguided suburban youth takes a misguided stand, suggests drug trafficking as a viable alternative to a legal career

^{1 Would that I could bring such brevity to my blog posts. I omitted to tell His Honour that I drafted the memo between 7:30 and 9:00 that morning, having spent the previous night catching up on Lost. I had to skip showering and run to the courthouse to make it for 9:45. My suit smelled.}

This Is Old City Hall, Day 15

2010-02-18T16:43:00.002-05:00

Little of note to report from Day 15: Preliminary hearing. 401 collision. The accused, a mid-40s blond lady, was driving on the 401 and struck a parked service vehicle -- specifically a "crash truck", the kind of truck with a plywood tryptich with blinking lights forming an arrow. The driver had been on the scene for thirty seconds before the impact. He heard no squealing or braking: one second he was sitting, the next he was flying. From his testimony, it seemed pretty clear that he intended to get some money out of the ordeal. Maybe he was even genuinely injured. Stranger things have happened.

Observations

I ran into a classmate leaving the court just as I was arriving, at 9:45. He thought I was late. Au contraire!
I wore all black-and-white to court today. Head to toe: shoes, suit, shirt, tie, jacket, bag, gloves, scarf, hat. I heard once that juries tend not to trust lawyers wearing anything other than black or dark blue -- they think they look cheap, shifty, like used car salesmen. I don't have any other colours anyway. I plan to have a black-and-blue wardrobe with maybe a tweed for the weekends.
The third floor of Old City Hall smells of human waste. Entia non sunt multiplicanda praeter necessitatem.

This Is Old City Hall, Day 14

2010-02-18T16:05:00.006-05:00

I was at the courthouse at 9:00 a.m., but I managed to miss Justice B-----. So much for a good first impression. I got to Courtroom 128 at 10:15 and court was already in session. A man was pleading guilty to driving with 140 mg of alcohol per 100 mL of blood. He was issued the minimum sentence: a $600 fine, one-year driving suspension. Pretty lucky, all things considered. At the morning recess, His Honour bolted out the door and I had to jog behind him, yelling, before I could introduce myself. We are off to a rousing start.

His Honour is the sixth judge I've shadowed but the first to assign me some research. Counsel for a man accused of assault alleges that no information was produced at his client's first court appearance, which prompted a loss of jurisdiction requiring a new summons to be issued, and since no such process was forthcoming after ninety days the matter ought to be dismissed for want of prosecution ZZZZzzzzzzzzzzzzz ... Clearly there has been a mistake and His Honour was expecting a competent student. One of my classmates, perhaps.

But that was for later in the week. First and foremost His Honour was concerned that probation officers weren't taking seriously their obligations to enforce judicial orders for community service. The accused before him that morning was ordered to perform 150 hours of community service. In 15 months, he had finished a mere 27 hours. The man said he met his probation officer each month and insisted that he would soon take a month off work and plough through the whole thing at once.

As someone who frequently procrastinates and devises ludicrous, quixotic timelines -- this blog is proof positive of that -- I understand the man's impulse. But how was he expecting to feed his family for that month? In the 15 months, did he put any money away, make a nest-egg to tide himself over? Anyway, he said he worked two to three days a week. Why does he think he needs time off? His Honour tightened up the conditions of probation and that was that.

The rest of the day was devoted to another drunk driving trial. The accused was self-represented. He attempted to cross-examine the arresting officer himself. His hands were shaking while he did it. He didn't ask questions so much as allege that his actions subsequent to the traffic stop were reasonable and not indicative of intoxication, that the officer didn't administer the breathalyzer properly, that he didn't hear the officer inform him of his rights. His Honour, trying to be as accommodating as possible, turned to the officer after each accusation and said, "I'm going to take that as a question."

The officer was pretty unflappable. Rightfully so: he knew that it was his word against that of the accused, and in that circumstance the police officer is usually the winner, notwithstanding the court's claim to the contrary. He was polite. He was patient and gentle when addressing the accused's "questions", even when repeating his direct testimony or simply saying, "That's not what happened. You're mistaken. I disagree."

Guess which way that trial went.

Denying a person counsel in a criminal court effectively guarantees they will be found guilty in a complex matter like an over-80 case. But there will be more self-represented accused until legal aid loosens the purse strings, and that can't happen until they have a lot more funding and support. And that can't happen until something really tragic prompts a real appetite for reform. So don't drink and drive. And if you don't have any money, maybe just stay off the road altogether, unless your secret ambition is to have a public inquiry named after you.

Observations

During a brief recess, I spied the lawyer I think of as Methuselah, sitting with a client. It occurs to me I should approach him to article. He could probably use the help.
On the Kafkaesque layout of the court: in the basement, administrative offices are denoted by letters; on the third floor, letters mean specialized courtrooms; everywhere else, courtrooms use numbers, and they all start with 1, no matter what floor you're on. Whose bright idea was this!
What's the connection between law enforcement and baldness? Don't tell me there isn't one.

This Is Old City Hall, Day 13

2010-02-18T15:40:00.014-05:00

Day Twelve was a wash: His Honour was called away and I was left in a conference room to finish preparations for my seminar the following day. The seminar was abominable and in retrospect, my time would have been put to better use by running at top speed in the opposite direction from Osgoode Hall, but -- hindsight, what can you do!

The following Monday I attended mental health court with Justice S--------. My notes from that day begin as follows: "It smells like cheese in here." And from that promising beginning, the day only improved.

I don't wish to make light of mental illness. I believe that the mental health court performs an invaluable service and that its officers deserve notice and commendation. But as they will be first to tell you, a lot of funny stuff happens in there.

Consider Ms. X. His Honour informed me that Ms. X was a fixture of the court, and that her court appearances had taken on a critical significance in her life. (Apparently this is not uncommon.) She was doing legal research on her own behalf, and it showed, much to the chagrin of her lawyer. Mrs. X proved the adage that a little bit of knowledge can be a dangerous thing. Also a hilarious thing.

When her name was called, Ms. X was in the body of the court. She drawled "ho-o-o-ld on a moment" as she hauled herself up; "you can hold the matter down for a moment while I get something out of my knapsack." Just like that -- languorous, like a veteran clerk that everybody's scared of.

Her lawyer wanted to put the matter over a week or so. Ms. X gave her about four seconds to speak -- "I think if we could come back on the 22nd" -- and then she went off. I recorded her as accurately as I could manage:

"ONCE AGAIN, you don’t have my interest in mind. I’m entitled to an election, OKAY? So I’m not obligated to have a preliminary inquiry, OKAY?¹ Once again I’m the only one here with any brains. [Addressing her lawyer] You don’t know how to use your brains because your father lives in a city. [Addressing duty counsel, His Honour and the court staff] Your father lives in a city, and your father lives in a city, and your father lives in a city. And on the day you retire your father will be in a city. None of you could do what I do in custody. I was at Vanier and Algonquin.² None of you can do what I do because you don’t know how to use your brains."

Everyone remained silent until this tirade ran out of gas, and then her lawyer resumed. "If we could come back on the 22^nd, please." The court was agreeable.

I wasn't completely unprepared for the mental health courtroom. It was depicted on the short-lived CBC series This Is Wonderland, which I have mentioned before. (TIW took place at Old City Hall and didn't spare the details of life in the bowels of the Toronto justice system. A week into my placement, I hunted down the DVDs of the first season.) One early episode featured a mentally-ill homeless man who was campaigning for a municipal government seat. The day after I watched that episode, I saw the real deal. When I arrived at the front doors of the courthouse in the morning, a crowd outside was listening to a homeless man whom I had seen often. He was announcing his candidacy in the upcoming Toronto mayoral election. Not only that -- he was maligning his opponents George Smitherman, Rocco Rossi and Adam Giambrone (obviously this was way back in early February). I see him often, as his campaign headquarters is on the sidewalk at the corner of Bay and Queen. I call him Mister Mayor and I wish him the wildest success.

But back to the real mental health court: midway through my morning in the cheese-smelling courtroom, a group of high school boys entered the courtroom. They were about five minutes too late to get wind of some sordid charges involving a man who stood in the window of his house, naked, waving his genitalia at children passing by on their way to school. I thought it was fortunate that they didn't hear this, not because it would have affronted their delicate sensibilities, but because they would have found it hysterical.

Inexplicably, the young men were accompanied by Mister Mayor. He sat with them for five minutes, then stood up and broke wind. It was audible from my seat on the opposite side of courtroom. He took the opportunity to address His Honour. "How ya doin, Judge S--------?" His Honour greeted him in kind, by name. Evidently Mister Mayor too is a fixture of this court. "God bless you," the mayor continues. "Take care of these young kids; they're just learning. God bless." He took his leave. Outside the courtroom he could be heard to announce, "I just farted in the courtroom!" The high school boys lost it. They will never forget this field trip.

During the morning recess I made friends with a fellow observer from the body of the court. She had a matter coming up -- that is to say, she was one of the accused. I showed her how to get to Coffee Court, the snack bar on the other side of the courthouse. En route she told me that she had had a bench warrant issued against her because had been confused and had attended at the wrong facility on the right day.

My new friend told me that the government wants to take away judges' decision-making powers, so that all they can do is sit on the bench and go to sleep. This is (more or less) my understanding of the government's intentions too. She went on to opine that this was unfair to those who couldn't afford to retain experienced counsel. Other people, not her, of course -- she was rich. She laughed when she told me this. I chose to believe it despite the context.

Observations

After observing several matters in mental health court, I felt comfortable noting a pattern that, with some minor modifications, could be applied to every matter that appeared there:

mental illness → family estrangement → poverty → alcohol → crime → arrest → cat death → guilty plea for diversion and treatment

From my notes: one accused party was "way too good-looking to be [mentally ill]". Nothing else is stated.

^{¹ I don’t know how she stumbled upon the concept of accused election, but she was right: she’s not obligated to have a preliminary inquiry. Unfortunately, the fruits of her research must have omitted the distinction between summary and indictable offences—she wasn’t getting an election. Moreover, she wasn’t going to trial, so the matter was pretty moot.}

^{² It’s a short trip from academia to the nut hatch. | EDIT, February 19: It didn't occur to me when the accused mentioned Vanier that she probably meant the women's prison rather than the post-secondary institution. I'm pretty sure she really did go to Algonquin College though.}

New York, New York

2010-02-18T09:55:00.006-05:00

"since I made it here, I can make it anywhere"

New York is entitled to self-aggrandizement, I suppose, but a line should be drawn. Admit it, HOV: all the makin'-it infrastructure is split between New York and LA! That's like saying being born a block from Broadway is a disadvantage to your theater career.

Make it from Cheyenne, Wyoming and I'll be impressed.

2010-02-14T14:47:00.002-05:00

2010-02-14T14:44:00.001-05:00

This Is Old City Hall, Day 11

2010-02-13T17:02:00.017-05:00

On the morning of Day 11 I sat in on Old City Hall's Drug Treatment Court panel. Justice B------ gave me materials to read the night before, to educate me about the panel's role in justice, health and rehabilitation.

The panel is comprised of ten people, including His Honour and representatives from the offices of crown, defence, duty counsel, probation, court administration and CAMH. Like in pretrial negotiations, the panel considers the facts of an individual's case, his background, and how his treatment is going. Then it negotiates what is to be done -- whether treatment is to continue or whether additional conditions are called for. Like in pretrial negotiations, the accused is not permitted to attend the panel.

Completion of a course of treatment is called "graduation". Relapse delays a participant's graduation, but relapse is anticipated and he doesn't flunk out. Good faith trumps almost everything here. For instance, it seems like just about every participant fails to show up for court, at the beginning. Some hand-holding is required. I don't think Justice K----- would have the patience to administer this kind of justice. But then, the approaches of Justice B------ and Justice K----- are like night and day.

According to the first file on the docket, the accused omitted to mention to the panel that he had separate, non-drug-related charges before the courts. He also failed to honour some of the conditions of his bail. True to the spirit and principles of the program, the panel doesn't let failure (relapse, toxic urinalysis, re-arrest) derail their work or deter them in the pursuit of their objectives. His Honour lets the first accused proceed with his program of treatment on the basis of his statement of desire and notwithstanding his actions to the contrary.

They're a happy group, the panel. Not raucous, but chatty. They remind me of missionaries, doing God's work, happy in the righteousness of their cause. One doesn't expect to meet optimists in their line of work, and it's heartening. I want to ask them whether the program has made them more or less cynical but I'm afraid to do so.

After observing for an hour, it's easy to detect the currents running through the room: sanction vs. rehabilitation, denunciation for past misbehaviour vs. encouragement for future efforts. The currents run along the expected channels. Duty counsel, defence and social workers sit on one side of the table. The crowns (provincial and federal are both here) and the probation officer sit on the other side. I wonder how many times the panel convened before that started to happen.

The crowns are pretty grim, as befits their role on the panel as representatives of the state (and tangentially the public, who arguably have an interest in seeing these offenders kept off the streets. Arguably. And I'm not arguing it).

No participant is just a drug addict. They're addicts and burglars, addicts with histories of abuse, addicts with "immigration problems" (i.e. the problem that Immigration wants them removed -- what other problem could there be?). Violent offenders are not eligible for the treatment program.

It's like detention. Some of the accused are required to write essays to His Honour asking to be admitted or re-admitted to the program, some, like A, His Honour knows well.

A wrote a two-page letter to Judge B------, committing himself to recovery. Eighteen months ago, A was a college graduate, winner of the dean's medal, and gainfully employed. Then A got laid off from his job, got addicted to crystal meth, and went off the rails. In his letter, A declares that by 2015, he will be back to his old self, back to the kind of man he was eighteen months ago. He recognizes that it is going to take five years to undo the damage he has inflicted on himself in a year and a half. That gives one pause.

I wonder how many people on the list are high at the very moment the panel is in session. The number is not zero. I feel guilty for wondering.

The panel finishes all the names just in time for lunch. Drug Treatment Court itself convenes in the afternoon, where faces are put to the names on the morning list. Everyone from the morning panel is present in the afternoon: crowns, probation officer, CAMH workers.

It's nothing like court. There is none of the tension of the adversarial system. A court worker calls a name. The party stands and addresses the court. His Honour peers over the top of his glasses and asks, "Any drug use to tell me about?" When the recovering addict answers "No", the other recovering addicts in the body of the court applaud.

Participants submit to frequent urinalysis, so His Honour knows the answer before he asks the question. Those who have been confirmed clean are called first.

Participants tell the court how they are staying clean. The answers are fairly uniform: volunteering, working, going to meetings, staying busy. One woman admits that she's having trouble staying busy enough: "I can only clean my house so much."

Watching the procession of recovering addicts/offenders put me in mind of the Spectrum of Human Achievement. I'm having a hard time explaining what I mean by that. When I try to elaborate on the idea, the words seem patronizing. Suffice it to say, irrespective of whatever charges the participants might be facing, the strength of will required to conquer a serious addiction and change one's life must be very great.

This Is Old City Hall, Day 10

2010-02-13T15:03:00.010-05:00

Below: a cautionary tale [the first of two] about representing yourself in criminal proceedings.

Before Justice B------'s court convened, he showed me an application for an order for disclosure, submitted to His Honour's court by a self-represented accused. The accused was requesting transcripts from two ex parte hearings:

(a) a hearing during which a justice of the peace issued a search warrant for the home of the accused, and

(b) a hearing during which an information was laid alleging that the accused had threatened someone with death.

Without giving anything away, it appears that some letters of a grave nature were suspected to have originated within the home targeted for search, and that evidence of the letters might be gleaned from the computer, printer and stationery of the accused.

To the credit of the accused, the application was cogent, more or less, and appeared to satisfy the statutory requirements for court applications. It was not, however, effective. Someone with even a little legal experience (and who has less than I do?) would conclude from looking at it that the writer didn't know enough to know how little she knew. Instead of demanding transcripts likely to reveal little, wouldn't obtaining the search warrant itself be more likely to bear fruit? I'm sure a lawyer could have expedited the process or at least pointed the accused in the right direction, and I wondered why some officer of the court, the crown or His Honour maybe, hadn't done so. I found out when court began.

There were three co-accused, all women ranging from 60 to probably 75. I say 75 because my grandmother is 75, and these ladies reminded me of my grandmother: sharp-tongued, suspicious of the world around them and mad as hell. This was far from their first court appearance, and if ever they had elicited any sympathy from the court, the old buzzards had exhausted it at this point. They cut off crown and judge with self-righteous tirades peppered with legalese that they picked up god knows where: "abuse of process" -- no mild accusation -- , "chapter one [sic] of the Charter", "timely disclosure", etc. They accused the crown of malicious prosecution, delay and obstruction. They accused the investigating officer of targeting them to indulge a personal vendetta. They claimed that the police used undue force in the execution of the search warrant. One went so far as to suggest that the charges against them were not so severe that the police were entitled to use force. The charges, let's recap, were criminal harassment and uttering threats.

His Honour is a more patient man than I. He let them rattle on and on, never interrupting while they buried themselves with comments like the one above. When the hurricane had blown itself out, His Honour urged the crown to move the prosecution along. The crown did not look thrilled to comply.

Let this be a lesson to you: no good can come of (i) trying to represent yourself in criminal proceedings, or (ii) teaching your grandmother computers.

This Is Old City Hall, Day 9

2010-02-10T17:33:00.016-05:00

Monday, February 1st begins with a judicial pre-trial. His Honour, Justice B------ has some preliminary remarks before the negotiations can begin. Counsel are not permitted to relate any of the facts, whether or not they are in issue. They are to present their positions proactively. They are not to say what cannot be done or what their clients will not accept, because this would be unproductive. I feel like an anthropologist: does His Honour always kick off JPTs this way, or is it because I'm here? Have I changed the gorillas' habitat?

Well-intentioned though it might be, His Honour's request that counsel not refer to the facts goes out the window pretty early in the discussion. It's hard to present your case as strong and your opponent's case as weak if all you can say is "my case is strong and my opponent's case is weak". The facts are referred to obliquely and a picture of the case begins to materialize.

It's another dispute between house-mates in a rooming house. Toronto rooming houses are hard places. Is it the same pair from last week, fighting about the TV remote? No -- in this case somebody got stabbed in the chest.

It seems the accused might have a legitimate claim of self-defence. The complainant was a "problem tenant". He is alleged to have threatened the accused, then made good on the threats by kicking down the accused's bedroom door, weapon in hand. Defence counsel refers to the weapon as a "morning star". The investigating officer, seeing my eyes widen and my head jerk up at the back of the room, clarifies that it wasn't a medieval spiked club but a heavy, knotted rope.

There's a surveillance video that will reveal the complainant kicking down the door. Unfortunately, it takes a year for police to search a surveillance computer for footage, even when they know the relevant time frame. If it's a homicide, the tape gets priority and jumps the queue -- so if the victim had succumbed to his wounds, the accused might have been able to get out quicker.

The crown makes an offer. Defence counsel rejects it in light of the prospect of a viable defence. This violates His Honour's rules of JPT decorum. He tells defence counsel, "That's not helpful." But what is the man supposed to do, string them along? The pretrial ends without a resolution.

It's followed by two more pretrials: a stabbing at a bar at Keele and Wilson (enough said), and an armed robbery. In the latter, the female accused (currently pregnant! classy) allegedly lured people to the public washroom at the Nathan Phillips Square skating rink -- right next door to the courthouse! -- where she and her friends swarmed and robbed them.

... I guess I'm done skating at Nathan Phillips Square this year.

Observations

Is that a French collar, Your Honour? Are you aware that the French collar has been shorthand for 'douchebag' since 1987?
What's a peace bond? The crown is opposed to it.
"Provocation is not the same as self-defence, Your Honour." Good point. Counsel isn't going to let his defence slip away because His Honour mischaracterizes it.
Dear God, MF DOOM shouldn't try to sing.
Wikipedia says that a morning star is also known as a "holy water sprinkler". Thanks, Wikipedia, that's the most ridiculous thing I've ever heard!

Some handwritten notes to myself

"When was the last time I did a good job of anything?"
[Regarding a fourth pretrial not worth relating:] "This lawyer is making some bizarre requests. The officer wants to tell him to go fuck himself. ... The lawyer thinks that because the officer's notes refer to another matter, [the officer] might have been confused. ... This is a Hail Mary defence. ... This guy sucks. ... The Crown is really sweaty. ... K----- J. wouldn't stand for this bullshit."

Rude!

2010-02-04T19:11:00.004-05:00

Taking a break from preparing my wiretap presentation, watching This Is Wonderland. The episode features a character accused of sexual assault. The alleged rapist's name is Alan Gold. I'd peg him at second or third most famous criminal lawyer in Toronto, at least among students and practitioners if not to the public at large. I don't see how this could be a coincidence.

Maybe it's gentle ribbing from a friend or admirer?

Stringer Bell, Caught on the Wire

2010-02-04T18:17:00.001-05:00

Three Days Behind and Counting

2010-02-04T16:40:00.008-05:00

My Old City Hall adventures continued this week, but further updates will have to wait: I have to prepare a seminar presentation on wiretaps for tomorrow and then I'm going to Ottawa to skate on the canal (and do other things, but I'm particularly excited about that one).

It's too bad I won't be there tomorrow, because the guy who pushed Noel Gallagher at the Virgin Festival in the fall is getting sentenced. That would be amusing to see for everyone except the accused, his wife and their children. I think the judge will give him a dressing-down about drunken mischief and then make him do some community service or something.

Below: the case for the Crown.

This Is Old City Hall, Day 8

2010-01-28T22:00:00.009-05:00

I learned several things about Justice K----- [pictured above] while watching him preside over drug plea court today:

He keeps the courtroom humming like a beehive, by scaring the bejesus out of everyone with the misfortune to be there -- Crown, defence, accused, clerks, court police.
He doesn't believe in conditional sentences (see below).
He doesn't suffer fools.
He may have a soft spot for troubled youths.

About conditional sentences, I don't know if I agree with His Honour. He suggests it's hypocritical to sentence an offender to a term in prison and then not to send them to prison. If the crime is one for which a term in jail is warranted, so be it; if not, he either awards an absolute discharge, or imposes a term of probation whereby the accused must be responsible for his own life, not babysat in his home.

Maybe conditional sentences are hypocritical -- but maybe it's just pragmatic to have an intermediate sentencing option when supervised release is too lenient and imprisonment too strict. Who in the justice system is prepared to defend the proposition that jail really leads to rehabilitation? Use of the conditional sentence regime tacitly acknowledges that imprisonment only begets further crime and imprisonment, and that it is therefore in the public's interest that some sentences be served in the comfort of the offender's own home rather than where a single crime ~~might~~ will turn into a life of crime. However, that tacit acknowledgment is what makes the conditional sentence a philosophical danger zone: diverting offenders from prison because prison is too toxic for them is obviously not a viable long-term solution, nor one the public is likely to find to its taste.

This Is Old City Hall, Day 7

2010-01-28T16:49:00.012-05:00

As part of Osgoode's Intensive Program in Criminal Law, I'm spending my final term of law school at Old City Hall. Go to the first day.

There was one matter to be dealt with in Courtroom 126 this morning [Wednesday, January 27th]. It went exactly thus:

Crown: "In light of the fact that there is no reasonable prospect of conviction, the Crown requests that the charges be withdrawn."

His Honour: "Any comments, Counsel?"

Defence: "No comments, Your Honour."

His Honour: [Rolls up an information and raps it on the bench in lieu of a gavel.] "The matter is withdrawn. [To the clerk:] Is that it?"

Madam Clerk: "That's it, Your Honour."

His Honour: "Let's go home."

We didn't go home, of course. Instead His Honour recommended I attend another courtroom to "watch justice [or a facsimile thereof] being done". In the other courtroom, a woman was being charged with Impaired. Her counsel was presenting a Charter s. 9 argument in which I, in my boundless wisdom and experience, saw no merit at all.

The accused was slight, with black hair streaked with blonde. She had orange skin that camouflaged her age; she could have been 38 or 48. (I recognize that it's unfair but I can't help but suspect she would have been wearing Lululemon if she were anywhere but before a judge.) She was pulled over after running two red lights. The arresting officer observed that her speech was slurred and she had wine on her lips. The lone observer in the body of the court (besides me) was a man in his late fifties or early sixties. Can you feel the urge to give in to stereotype and judge prematurely?

After counsel had made his submissions, the Crown shambled to the podium. When he started talking, one got the impression that he was shambling then too. He referred to cases but didn't have any materials prepared. Court was adjourned early so that the Crown could get it together. At this point it was 11:00 a.m. so I went in search of His Honour again.

H.H. was on hold with Via Preference for the duration of the morning recess. I thought that was amusing. One doesn't think of judges being subjected to the inconveniences suffered by lesser mortals.

Many other matters were dealt with, none of them of much gravity, though there was one exchange in plea court that I thought stupid enough to record:

His Honour [to the accused, upon sentencing him to a term of probation]: "Anything you'd like to say to the court?"

The accused: "I would request [a less onerous term of probation] because I'm looking for a second job."

His Honour: "No."

The accused: "Okay."

His Honour: "Why did you drink when you were released nine days earlier with a condition [to abstain from the purchase/possession/consumption of alcohol]?"

The accused: "It was a friend's birthday."

His Honour: [Repeats his question, less temperately.]

The accused: "I was forced to drink, against my will."

At this point my notes read: UH-OH, which turned out to be a good prediction.

Finally, there was a matter I will call The Rooming House Incident. A resident of such a facility was charged with uttering threats. According to the police report, he banged on the walls and told one of his fellow residents that he was going to "fuck him up". Complainant and accused were known to each other and had had prior confrontations that had resulted in charges being laid. At court, the accused acknowledged having uttered the threat and was prepared to accept the consequences. He was a small man in his forties. He came to Canada from India in 1985; as a result of the charges against him, he was facing a deportation order. Defence counsel said the accused had some "suspected cognitive impairment" due to long-term alcohol abuse (over more than twenty years).

I found the facts unremarkable until I turned around and saw the complainant, who attended the sentencing. He was wearing a black T-shirt with skeletons, skulls and dollar signs on it. He was, with no exaggeration, at least twice the size and mass of the accused. The little old man pleading guilty before the court could not have "fuck[ed] him up" with four arms, three baseball bats and a gun.

Two additional facts were entered, stupendous enough to warrant bullets of their own:

the argument that prompted the uttering of threats was over the whereabouts of the TV remote; and
the accused was the one who called the police, in order to enlist their aid in getting back said remote.

His Honour must have come to the same conclusion that I did, because he prefaced his judgment with a speech about his obligations in equity as well as in law before entering a discharge that rendered void the pending deportation order.

Observations

Neck tattoos today: none, but there was a defence lawyer who resembled Noah Wyle if Noah Wyle got lost in Appalachia for three weeks. But unruly facial hair does not a lawyer unmake, and he was a great enunciator, a trait His Honour values highly.
Also, one of the clerks had a Padawan rattail [at right].
The heating system in Old City Hall possibly dates from 1889 when the building was founded. One wonders if there's a boiler room in the basement full of logs from old growth forests that no longer exist. The hot water radiators sound like biplanes facing off in WWI: they rattle up and up and up until there's a sound like an explosion.
At one point during counsel's submissions, the head Crown swept into the courtroom and just stood in the middle of it until counsel faltered and stopped talking. Then she boomed, "Thank you, Counsel" and had all her matters traversed to another court. She was a lesson in command of a room -- she sounded like a judge herself. She'll probably be one in due course.
His Honour has the Ontario Reports, 1969-1973, in bound volumes in his office. Why this period only? Maybe when he practised criminal defence he had a lot of cases reported in that time. Maybe he just thinks it was the Golden Age of criminal jurisprudence.

This Is Old City Hall, Day 6

2010-01-26T20:42:00.008-05:00

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.

Observations:

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.

This Is Old City Hall, Day 5

2010-01-26T18:18:00.007-05:00

Justice K----- is my principal for the week. Before sending me out into the courthouse, His Honour issues the following directive: "Forget the law. Focus on the people." He assumes I knew the law in the first place.

My assignment for the week: hit as many courts as possible and observe, per K----- J.'s instructions, "how slowly the system works". The first stop in my tour is in Federal sentencing court, where drug matters are resolved. A couple sentences are handed out, but mostly matters are put over, one after the other, until another day. So far His Honour's cynicism is not misplaced. I abandon this court in short order. In another courtroom a motion is being argued for exclusion of evidence under s. 24(2) of the Charter. I get there just in time for an early morning recess, so I move on for the second time. Next door is Domestic court.

Domestic court is a funny bit of Newspeak: it rolls off the tongue better than Domestic Violence court, but it's sure not as descriptive.

My conception of domestic violence is probably coloured by Law & Order. I enter the court expecting to find a swarthy drunk on the stand and a mousy, downcast woman in the front row. Yes, there is a man on the stand, and yes, he could be described as swarthy -- but the woman in the front row is the opposite of mousy or downcast. Her eyes, her posture and the set of her jaw suggest she is carved out of rock. The man's testimony indicates that she is a crack cocaine user and a prostitute. Even so, it takes me twenty minutes before I realize that he is the complainant and she the accused.

The complainant evidently had an arrangement with this woman whereby she shared his home in exchange for payment -- like Pretty Woman but without any attractive people and with more crack cocaine. At some point the money stopped flowing. Words were exchanged. A glass was hurled at the complainant. The basement tenant was alerted. (He testifies next.) Police were summoned.

The complainant wouldn't qualify his relationship with the accused as a sexual one. Defence counsel inquires whether he has ever heard of Bill Clinton. This is what passes for humour around here. The Crown inquires as to the relevance of this comment. It's not really an objection worth making, but I empathize with her: it would be hard to be a young female Crown in a courtroom full of dirty old men telling sub-Jay Leno-calibre jokes.

I don't come back after the noon recess. The wheels of justice are turning well enough here, but maybe in another courtroom they're going in the right direction.

Observations:

Defence counsel in the domestic matter was ancient: 75 if he was a day. Why is this man still practising? Lawyers joke about dropping in the saddle, but is this racket really that bad?
Many defence lawyers, especially senior ones, have ponytails. Why on earth? Maybe it's a reaction to the prevailing Crown style of shaved heads. Maybe where the shaved head is the ageing Crown's meagre token of individualism, the ponytail denotes the Toronto defence bar's hippie communal pretensions. There' s a joke to be made here about time stopping in the courts -- but I don't know that there was ever an era when this was an acceptable aesthetic choice for a legal practitioner.
Neck tattoos today: 2.
Hypothetically: You're arrested for shoplifting at a grocery store. You explain to the court that you are a recovering heroin and cocaine addict, clean for nine years; however, you continue to use marijuana, and this increases your appetite, potentially leading to shoplifting. Is this an aggravating or a mitigating factor?

New Life Goal

2010-01-23T22:28:00.011-05:00

Some day, I will complete the Great Lakes NHL Arena Tour, which I have just invented.
This will complement my only other existing life goal (ACC season tickets), and is probably more attainable.

Rules:

Complete the road trip in 8 days, starting on a Saturday night at Joe Louis Arena, and ending on a Saturday night at the ACC. During the intervening week attend games in Chicago, Columbus, Pittsburgh, and Buffalo. This will require an unlikely confluence of conveniently scheduled home games, cooperating weather, and the ability to take a week off at exactly the right time. But it's possible!
The tour may be completed in the reverse order, starting on a Saturday night at the ACC, and ending at Joe Louis Arena.

Varying Difficulty Levels:
Basic:

Eat a hotdog and drink a beer in every arena.
Take a photo in front of every arena.

Advanced:

Obtain seats no worse than "gold" at the ACC, and the equivalent in the other arenas.
Obtain signatures from a player in each game -- six signatures over the course of the Tour.

Extreme:

Complete the Tour during the first round of the NHL playoffs.
Obtain signatures from at least one player from each team in each game -- twelve signatures over the Course of the Tour.

Statistically Improbable:

Complete the Tour during the second round of the NHL playoffs.
Only attend games which the home team will win.
Be mentioned on Coach's Corner on the final night of the Tour.

This Is Old City Hall, Day 4

2010-01-22T15:04:00.005-05:00

As part of Osgoode's Intensive Program in Criminal Law, I'm spending my final term of law school at Old City Hall. Go to the first day.

Yesterday I observed the trial of two individuals for attempted robbery and forcible confinement of a cab driver. It wasn't as thrilling as that sounds; there was a major identification issue, the forcible confinement charge arose from a matter of seconds in which the accused held the cabbie's door shut, and nobody even came close to robbing or getting robbed. The judge whom I was to shadow for the day was likewise underwhelmed by the proceedings, and recommended I go to the courtroom next door to watch the cross-examination of a police officer.

I did so in the afternoon, but fared little better there: the cross-examination had been underway for some time and it was impossible to pick up the thread. The Crown seemed to take issue with the accused officer's account of an arrest, during which the officer allegedly traversed a coffee table in the course of tackling a suspect. I say traversed because much was made of the semantic distinction between jumping, leaping and diving over the coffee table. In whatever manner the officer moved over the coffee table, though, the suspect was tackled to the floor and a nearby TV was knocked over, so it seems likely that the officer didn't move with grace and poise.

A sampling of my handwritten notes, taken while sitting in hallways and courtrooms throughout the day:

Who knew trials about violent crimes could be so boring?
[a caricature of the first accused]
This sucks so hard.
Reminder: reapply Polysporin when you get home.
I'm a complete idiot for not signing up for a defence lawyer [for my Intensive placement].
Why the ~~%$@#!~~ don't I think about taking responsibility for myself and my life?
This Crown kind of sucks. She's old enough to know better.
DIEU ET MON DROIT [in block letters]
Reminder: get/make a floor plan for the courthouse.
[an illustration of one stick figure holding another stick figure at gunpoint, robbing him of a sack marked $$$]
Reminder: you need socks ...
... and you need to get your house in order [unclear whether this was meant literally or as a reference to my deplorable lifestyle and uncertain future]
SHOULDN'T I LIKE THIS MORE?
[an illustration of a six-eyed, horned alien]
[an illustration of Scrabble tiles spelling out the F word, with the third tile knocked over, rendering the word completely indecipherable]
I should NOT become a police officer. I DON'T LIKE CONFLICT.
~~%$@#!~~ [in block letters]

Your Parents are Responsible for the Demise of "The Tonight Show with Conan O'Brien"

2010-01-22T02:51:00.008-05:00

NBC's Tonight Show debacle is extremely frustrating. Everyone joining an "I'm with Coco" group or tweeting about #teamconan is fully aware that the man is funnier on an off day than shambling, dead-eyed Leno is at his best. Amid all of the ink being spilled over the Late Night Wars, there really isn't much of a public dispute taking place regarding the comedic talents of the parties involved. Fact is fact. The best thing that could be said of The Tonight Show with Jay Leno was that sometimes it would be on while Letterman went to commercial, to pass the time. The less said about The Jay Leno Show, the better. (Forget seeing if it makes you laugh--just count how many times a Leno joke even makes you crack a smile.) His most famous bits involve reading newspapers, and talking to random stupid people. Conan's most famous bit just might be the Masturbating Bear. Or maybe the delightfully nonsensical look at the future, "In the Year 2000" (tragically dumbed down to 3000 for the Tonight crowd). Even the house band bears no comparison. Has no one pointed out to Kevin Eubanks that his painfully fake laughter only highlights how devoid of mirth Jay's jokes are? Frankly, he doesn't even look like he likes Jay. He, like the viewer, is just putting in time before he goes to bed every night. Max Weinberg, meanwhile, along with being a famous musician in his own right, can hold his own in the comedy department. La Bamba is a hilarious one-man festival of the bizarre.

Yet Conan undeniably lost this battle.

The problem is that there is a very real silent majority that just doesn't get it. Baby Boomers. They're your parents, and they, not Jay or NBC, are the real villains here. Because they're getting old, and they like the comfort of the familiar. (Some aren't even that old, and some might be funny people in their own right--but they're not part of the Conan generation. And among those for whom actual laughter is an important part of a comedy show, well, they were watching Letterman all along.) Here, "I'm with Coco" and #teamconan are meaningless noise. They are useless preaching to the converted, because the old heathens aren't on the facebooks and all they know about tweets is that CNN thinks they're somehow important.

The Boomers' appreciation of comedy has grown stale, and they're not receptive to any message which might set them straight, 'cause ultimately they don't really care. The world revolves around them. They have the big money. They're the ones buying Cialis and cruise vacations, so they're the ones at whom all the expensive ads are aimed. But they can't get their heads around Conan O'Brien's inherent weirdness, because his jokes aren't lazy and obvious like Leno's, so the ads for mutual fund companies and Cadillacs aren't being seen by enough eyes to warrant the spending. Ratings drop, then ad revenue drops, and then a funny guy loses the job he clearly dreamed of having his whole life.

Sure, NBC probably wishes it could let creative people do funny things all night, but when the money only flows from the mediocrity, what are they to do? The peacock network is a massive corporation, owned by an even more massive corporation that needs to see results, or somewhere down the line people will lose their jobs. There's no time to slowly nurture the network's flagship show back into healthy numbers, as it deserves. Unbearably, but reliably, Leno puts old-person-asses in seats. The man can sell a GE lightbulb. And sometimes to keep your 30 Rocks afloat, you have to suck it up and make a Biggest Loser.

Certainly, NBC and Leno are not devoid of blame. Far from it. Seven months was obviously not enough time for Conan to get into the groove of a show that he could probably have hosted for over a decade. Further, leading in to the news with the dreadful Jay Leno Show was rightfully complained-about by NBC affiliates across the country, and was a solid way to make sure that everybody wandered away at 10:00 to do the dishes and play Scrabble. But it's not like everybody was watching ER back in the old days. The news was still on at 11:00, and the Tonight Show followed. Conan had that format to work with, but the Boomers and their wallets just weren't there any more. Ultimately, your parents' failure to recognize comedic brilliance is to blame for the imminent return of Jay Leno to Tonight.

In some ways, Conan will be better off. Likely finding a new home on Fox in September, expectations will be more in line with his comedic sensibilities. But the viewership numbers still won't be stratospheric, and, as Conan has sadly pointed out throughout the week, he won't be part of one of the most respected institutions in television history. He'll be a sad footnote in that institution's story.

EDIT, 15 April 2010 | More proof that Conan was lost on his own generation: try explaining to your dad why Conan-as-Dick-Van-Dyke-as-Thom-Yorke is funny and cool.

This Is Old City Hall, Day 3

2010-01-20T14:39:00.006-05:00

As part of Osgoode's Intensive Program in Criminal Law, I'm spending my final term of law school at Old City Hall. Go to the first day.

The judge I was to follow today is ill, so I have the day off to start my seminar on wiretap procedure and finish reading Old City Hall. In the book, the Leafs are on a Stanley Cup run. Who would've guessed: magic realism in a crime novel.

Last night I had a nightmare that my fall-term marks came out and they were horrible: Cs, Ds and one G, which I construed as bad intuitively. In waking life, grades don't much trouble me -- they've been bad for the last four semesters, there's no reason they should improve now -- but evidently they still trouble my unconscious.

This Is Old City Hall, Day 2

2010-01-19T14:50:00.008-05:00

As part of Osgoode's Intensive Program in Criminal Law, I'm spending my final term of law school at Old City Hall. Below are the events of my second day there. Go to the first day.

Today was a short day but a notable one: I observed my first judicial pretrial discussion. The discussion was in relation to two individuals accused of trafficking narcotics -- my bread and butter! I wasn't privy to the specifics (nor could I share them if I were) -- suffice to say that negligible amounts of narcotic were trafficked on a series of occasions.

Present at the pretrial were two defence lawyers, a federal Crown prosecutor, a police officer, Her Honour and myself. There wasn't room for all of us in the office sitting area, so Her Honour sat on the couch with the professionals and I occupied Her desk. Comments were made about my youthful appearance; this is a common occurrence for me and one I am assured I will relish in years to come. Drunk with the power that emanates from a judge's desk, I paid the jokes no heed.

It struck me during the discussion that the Crown is afforded a great deal, almost a quasi-judicial amount of deference. He delineated the facts, the case's strengths and weaknesses, the backgrounds of the accused and Her Majesty's expectations for sentencing. Presumably his assessments were fair, because defence counsel made no comment for their duration. They seemed more or less happy to let the Fed tell the story.

This is not to say that counsel weren't fearless advocates for their clients: the tone of the discussion was cordial but combative, the respective positions of the parties firm and well-articulated but open to debate. To wit --

DEFENCE COUNSEL: "I know what you're thinking, Your Honour: 'Thank God for conditional sentences', isn't that right?"
HER HONOUR: [sarcastic] "First thing that entered my mind."
FEDERAL CROWN: "... Oddly enough, not mine."

Har, har.

There is an element of social work to the profession of criminal law that is paid little attention by the public. Those embroiled in the justice system have no chance of emerging rehabilitated without the assistance of professionals on both sides of the bar, and those professionals, Crown and defence, take that obligation seriously. Defence counsel was frank -- almost too frank -- about his client's efforts to honour the conditions of his 'release' (under house arrest): "I like all my clients," he said, "but [this one] is frustrating. But he tries."

I was cut loose shortly after the pretrial. I might have spent the free time preparing an essay proposal, or readying my class seminar on wiretaps. Instead I strolled back across the street to Starbucks, where I got a coffee, took up a stool and read Robert Rotenberg's Old City Hall, in view of the building itself. The book rewarded me with a description of the building that might have been penned from the very spot where I was sitting:

The Hall covered a whole city block. Five stories high, it was a massive stone structure, asymmetrical in design, filled with curling cornices, rounded pillars, marble walls, smiling cherubs, overhanging gargoyles, and the big clock tower to the left side of the main entrance, which topped it off like a gigantic misplaced birthday candle. Above the arched front entryway, the words MUNICIPAL BUILDINGS hidden among a swirling band of curlicues and bows, denoted its initial use.

Observations, Day 2

Taped to the computer monitor on her desk, Her Honour has an inventory of items she must remember to ferry between home and the courtroom: pen, highlighter, computer, keys, pad, trial book, Code, glasses, BlackBerry (with a reminder to keep it set to vibrate -- it doesn't do to have one's phone go off in court, especially when one is the judge), iPod. The tools of the legal professional's trade. And an iPod.
Sometimes I picture the commission of the offences I'm reading about, and wonder whether I could have pulled them off where the accused persons failed. (They've always failed; that's why they're in court.) This happened often when I worked for the Feds in the summer, and even when I read cases in first year Crim, or Evidence, or Crim Pro, and it happens at Old City Hall. I wonder if other students and practitioners do this or if there's something the matter with me.

This Is Old City Hall, Day 1

2010-01-18T17:41:00.015-05:00

As one of twenty students admitted to Osgoode's Intensive Program in Criminal Law in spring 2010, I'm spending my final term of law school at the placement of my choice: Old City Hall, one of Ontario's busiest provincial courts. I will spend four days a week there for the next ten weeks, shadowing judges, observing all manner of proceedings, assisting the judiciary where possible, and recording my experience.

Below are the events of my first day. In detail.

8:58 am. At the outset of any new undertaking, I always plan to arrive half an hour early, to get my bearings. Inevitably I fail and today is no exception. I left my house at 8:37 and reached the office of the court clerk 21 minutes later. She directs me to the judges' secretaries office.

9:02 am. A secretary informs me that Justice C------- will arrive at 9:45, so I should feel free to go get some coffee. I comply.

9:15 am. At Starbucks, across the road from Old City Hall, a boozy old man is addressing the baristas: "Did you hear about this Edward Greenspan? He got 'em all off! All of 'em! Edward Greenspan got 'em all off!" He repeats words to this effect all the way out the door. I wonder if he is paid to do this at a coffee shop frequented by court patrons or if he's just a genuine proponent of Team Edward.

10:00 am. Justice C------- collects me from the secretaries' pool and directs me to her office. Like the rest of the courthouse, it is well-appointed and lived-in. There are Renaissance paintings on the walls, but the place of honour above the couch belongs to a more modern piece: a bonfire, orange-on-black, painted by C------- J.'s middle child. During our conversation we discover that we're both graduates of the History and English faculties at Huron University College.

Somewhere in the building, a courtroom is being kept waiting while we become acquainted.

10:32 am. In a large courtroom with bad acoustics: C------- J. is presiding over a sentencing hearing for an individual who has pleaded guilty to possession of child pornography. Out the window you can see the weather beacon on top of the Canada Life Building. Either the temperature or the barometric pressure in the city is going up; who can read that thing.

An officer is giving evidence to the effect that there are six categories of naughty picture:

child pornography;
child nudity;
child other [depicting children not in a state of undress];
adult pornography;
obscenity [the officer giving testimony cites bestiality as an example -- not to make these proceedings more distasteful or anything]; and
other.

All six categories are represented on the accused's hard drive. The officer was thoughtful enough to bring examples of each, seized from the computer of the accused. Her Honour and counsel for the accused are viewing the pictures over the officer's shoulder while he describes their contents in monotone. He doesn't have an enviable job.

These days, possession of child porn carries a mandatory minimum sentence of 45 days' imprisonment. (Whatever one's feelings about mandatory minimums, this one would have been difficult to oppose, politically-speaking.) The Crown is looking for six months, followed by probation.

[This particular Crown prosecutor fits an archetype that I've noted in this courthouse and others: the Maverick. He may represent Her Majesty by day, but he's no government stooge -- he has a goatee and an earring, see? So he's more like a government stooge from 1994.]

The Crown offers a sort of "market" argument to the effect that possession of this kind of material begets its production. I can't help but wonder if this is accurate, given that the accused downloaded all the photos from LimeWire and no money changed hands -- but then, what incentive is there to disseminate this stuff? To paraphrase the Shadow, who knows what logic lurks in the minds of child pornographers?

A more cogent argument for strong denunciation: child pornography creates "cognitive distortion" about norms of sexual behaviour in those who view. The point may be applied to pornography in general: no less scholarly a source than Details Magazine says that the ubiquity of internet porn has turned the bedrooms of North America into dens of bukkake and other terms best left un-Googled.

11:45 am. Morning recess. C------- J. makes calls and consults the annotated Criminal Code. (Just because you've been on the bench for five years doesn't mean you have it memorized. It's comforting that she is so diligent.) Meanwhile I peruse her office reading material -- The Origins of Reasonable Doubt, an examination of the modern legal principle's conception as a theological maxim. It's more interesting than its name suggests.

Did you know: in bygone eras, in jurisdictions where firing squads were employed, one member of the firing squad would be issued a blank bullet. However, none of the squad members knew which of them had the blank. When a shooter pulled the trigger, therefore, he could never be certain whether he had fired a killing shot. In this way the shooters' consciences remained clean but the condemned man got shot just the same.

To understand how that relates to the modern common law concept of reasonable doubt, you'll have to purchase the book.

12:15 am. Defence submissions. Counsel takes care not to minimize the seriousness of the offence to which his client has pleaded. The accused has been under house arrest for perhaps a year already. He has an undiagnosed learning disability and he has been severely depressed. He accepts responsibility for his actions, a "curiosity that got wildly out of hand".

Counsel argues that a computer ban is unduly restrictive "in this day and age" and advocates that severe restrictions on use of the device be imposed instead. C------- J. seems receptive to this submission.

The accused is prohibited from attending parks, pools, community centres and other public places where children might be found, though he has no history of interference or assault.

1:00 pm. Her Honour asks the accused if he would like to make any statement. Having been weeping for the duration of proceedings, he bursts into sobs. He struggles to speak but he's incoherent. One word that emerges is "hospital". Counsel informs the court that his client looks forward to undergoing treatment and getting better.

2:45 pm. Back in the courtroom, awaiting Her Honour, who spent her lunch hour composing her decision. Crown, defence and accused are sitting together awkwardly. The lawyers are reviewing precedents, probably whatever was closest to hand.

I already know the judge's decision, which is strange and something I expect will never be repeated in my career.

2:49 pm. I wonder if the accused will be able to keep it together when his sentence is read. I know I couldn't, whichever way the wind blew.

2:51 pm. A court services officer just came in. He doesn't remove his hat in the courtroom, which distracts me. It takes me some time to figure out he's there to escort the accused out following his sentencing. Police have depressing jobs around here.

3:10 pm. Four months' jail, followed by probation, with stringent provisions regarding contact with children and computers, and entry onto the Sex Offender Registry. The accused is admirably composed. My first day at Old City Hall is over.

Observations, Day 1

I spent the day wrestling with how to address C------- J. when in the privacy of her own chambers. Occasionally I caught myself using the familiar "you/your" rather than "Your Honour/Your Honour's", but I rectified the missteps by the end of the day. Notably, Her Honour does not use her own honorific when she answers her phone; she uses her first name.
Her Honour is exactly twice my age and has been a judge for five years. If I haven't grown disenchanted and quit nineteen years from now, maybe I'll put my name in.
These posts are going to be pretty text-intensive. Pictures are not permitted during court hours.

Canary in a Coal Mine, or Any Excuse to Cry Foul?

2010-01-10T14:50:00.008-05:00

[A response to Airport Security: Trading Liberty for the Illusion of Safety by Rob Evans, Jan. 09, 2010.]

Your Michael Jordan introduction is clever, but it feels like you came up with it first and then looked for an argument to shoehorn it into. You say that North American governments are playing a "similar game" but make no attempt to identify the similarity. Are you the terrorists? Is Michael Jordan the government? So, the government wins if terrorists quit making attempts to blow stuff up and the terrorists win whenever they succeed once? Or is it that the terrorists win if the government stops trying to stop them, and the government wins if they stop even one? What are you even advocating with this paragraph? That governments stop trying to weed out terrorists?

"The gun is visible enough, but what of the white stuff around the body? Is that just thick underwear or a plastic explosive? The gun would have been detected by conventional screening anyway, so what we're gaining here is a big fat nothing."

Your conclusion does not follow from the premise. The gun would be found through less intrusive means. Fine. So we should stop when we find the gun? And if somebody has a plastic explosive, they get a pass because it rather resembles thick torso-underwear to someone with no training on such a system (ie. you)? How is this "a big fat nothing"? The image quite clearly shows a lot more than just a gun, and you seem to be pretending there's nothing else there because it serves your argument to do so.

You've provided no support for the statement that "subjecting millions of our own travelers to these machines does not make us safer". Obviously it is difficult to prove a negative, but it seems fairly evident to me that full body imaging cannot fail to be more effective than mere metal detectors and random pat-downs.

"We have been losing bits of liberty, step by step, each time a terrorist attempts to attack a plane." Maybe so. But what precisely are you advocating with this paragraph? That we blithely assume that once a terrorist tries one method, they will move on? That once a weakness has been exploited, we should ignore it instead of addressing the risk? Fool me once, as they say, shame on you. Fool me twice, shame on me. Certainly it is better to be proactive, but there's no reason not to be reactive as well. Terrorists don't win when they put some people through some minor inconvenience on their way to enjoy the miracle of flight, they win when they blow up those flights.

"Anal cavity searches are coming"? Doubtful. There's no actual violation of the physical person here. It's an image, not a probe. You must realize that slippery-slope arguments are logical fallacies, unless you also believe that gay marriage leads to bestiality and polygamy. Rhetoric about being bent over is merely colourful.

Statistics. Generally inadmissible in the courtroom, as dear Prof. Maveal taught us, and just as useless here. Planes versus cars is apples versus oranges. The difference in the numbers is a reflection of a number of factors, none of which support the argument that we should stop looking for terrorists in airports. If anything, you're now arguing that we should be sacrificing a little more liberty to have our cars crash less often.

We control our cars. We use them all the goddamn time. We use them individually, and when we crash, it is the fault of an individual, not an ideology. In such instances the government can not be said to have failed to protect us. Regardless, governments expend a great deal of money and effort trying to curb crashes. That they occur anyway is not to suggest that we should fear them more than attacks by terrorists, but rather that we should drive carefully.

We don't control planes, and we generally don't use them all that often. They are piloted by strangers, and indeed are a pseudo-governmental service, when you consider their subsidization. When a plane crashes, it may be nothing more than pilot error or mechanical malfunction. These things happen very rarely, as a result of the massive regulatory systems in place governing flights. But, when a terrorist hijacks or blows up a plane, the government has failed to protect us. For this reason, we sacrifice some of our convenience (I won't say liberty here, 'cause I don't define the word so callously as to assume it means "ten extra minutes waiting in a line" or "a picture of me naked, but as an alien"). We cannot "afford to lose a few more planes," because it means a very different thing. A plane crash is a victory for an ideology which sees it as acceptable to blow up a couple hundred innocents for no reason. A car crash means nothing to anyone besides those involved. In short, we have security checkpoints in airports because they are targets. You know this, of course, so the inclusion of the statistics does nothing but obscure the liberty issue.

Afghanistan and Iraq. About security? Partly, I suppose, but that is a gross oversimplification. But I'm not about to start defending those particular endeavours.

I'm not afraid of heights, and I'm not afraid of flying. I love flying, actually. But I have no desire to see anyone blown up just because the government ignored viable security techniques that imposed a minimal inconvenience. Hell, done right it seems like full body scans could actually speed things up. I mean, "done right" is probably a prohibitively big stretch for airlines and governments, but I can dream.

To conclude, terror is not a choice, it is an imposition. And you cannot confuse liberty with convenience. Liberty can never be overvalued, while convenience is not worth the sacrifice of even one life.

The Correct Answer was "O-V-Y"

2009-11-17T11:11:00.007-05:00

U.S. Customs and Border Protection official: "Citizenships?"

Me: "Canadian."

Border guard: "Where you boys headed?"

Me: "UDM law school."

Border guard: "What time does class start?"

Me: [looks at dashboard clock: 8:30] "Right now."

Border guard: "Why you late?"

Me: [gestures vaguely to passenger seat] "His fault."

Paul: "It's true."

Border guard: "Your vehicle?"

Me: "Yes."

Border guard: [looks at mirror behind truck, reading license plate] "N6A ..."

Me: "1 ... 4 ... 7?"

Border guard: ...

Me: "Was I close?"

Border guard: "Nah." [waves car through anyway]

Paul: [laughter]

Some days, America is awesome.

Q: "Where Does He Get Those Wonderful Toys?"

2009-11-05T10:25:00.014-05:00

A: Gotham City Negotiable Promissory Note

The Problem

In order to carry out his crusade against crime and injustice in Gotham City, the Batman burns through significant resources. The production of countless gadgets, not to mention the research and development behind such production, must take place somewhere. As billionaire playboy Bruce Wayne owns Wayne Enterprises, his access to a highly advanced research and development department and its attached production facilities is a convenience unparalleled throughout the greater crime-fighting community. Yet if the company’s seemingly infinite production of bat-shaped vehicles did not recoup some manner of profit, many questions would be raised at meetings of its Board of Directors, and the identity of the Dark Knight would certainly be exposed. Further, if Bruce Wayne were to commingle personal and company funds to fight his war, the corporate veil would be of little defense against curious financial investigators.

The Transaction

In order to hide his nocturnal activities, while ensuring a ready supply of batarangs and utility belts, Bruce Wayne must supplant Wayne Enterprises’ massive bat-related expenditures with his own tragedy-tainted inheritance money. To that end, he provides Wayne Enterprises CEO Lucius Fox with fifteen million dollars per year, allocated monthly and evidenced by a promissory note. Mr. Fox had his attorney draw up the particulars in order to protect himself.After all, one does not leave such things to a depressive vigilante that dresses like a bat and spends his nights punching psychotic clowns.

NEGOTIABLE PROMISSORY NOTE

$15,000,000

PLACE OF EXECUTION: GOTHAM CITY, GOTHAM DATE: NOV. 5, 2009

THIS PROMISSORY NOTE (the “Note”) is effective as of the date it is executed by Bruce Wayne (“Maker”), for the purpose of evidencing an obligation from Maker to Wayne Enterprises Inc., a Gotham corporation with its principal offices located at 500 Finger St., Gotham City (“Payee”).

1. PROMISE TO PAY. For value received and continued discretion, the undersigned, Bruce Wayne, unconditionally promises to pay Payee or order, at the accounting offices of Warren White, 360 Murphy Avenue, Gotham City, or at such other place as may be designated in writing by the Holder of this Note, the principal sum of Fifteen Million Dollars ($15,000,000) in lawful money of the United States of America, with no additional interest, costs or fees (in the event of timely payment) to be paid in the following 12 installments. The checks for all installments are to be made payable to “Warren White, Accountant for Wayne Enterprises” and are to be mailed directly to the offices of Warren White. via overnight mail. Installment payments shall be made as follows:

One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Dec. 5, 2009.
One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Jan. 5, 2010.
One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Feb. 5, 2010.
One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Mar. 5, 2010.
One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Apr. 5, 2010.
One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before May 5, 2010.
One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Jun. 5, 2010.
One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Jul. 5, 2010.
One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Aug. 5, 2010.
One Million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Sept. 5, 2010.
One million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Oct. 5, 2010.
One million Two-hundred-fifty Thousand Dollars ($1,250,000.00) on or before Nov. 5, 2010.[i]

2. MANNER OF PAYMENT. All installment payments shall be made by certified check drawn on the bank account of Maker.[ii]

3. NOTICE OF NON-PAYMENT. If Maker fails to make a payment set forth above on its due date, Payee shall give Maker written notice of such nonpayment. The date of such notice shall be deemed to be the date that Payee transmits such notice by facsimile to the number set forth in Paragraph 4 below. Maker shall have Five (5) days from the date of such notice to make said payment. The date that a payment is made pursuant to such notice shall be deemed to be the date that such payment is mailed via overnight mail to the offices of Warren White.[iii]

4. NOTICE. Any notice to be provided to Maker pursuant to Paragraph 3 or any other notice to be given by Maker or Payee shall be given in writing, by facsimile and first class mail, as follows:

MAKER

PAYEE

Bruce Wayne c/o Alfred Pennyworth

Wayne Manor: 1007 Mountain Dr., Gotham County

Fax: 555-422-8626

Lucius Fox, CEO, Wayne Enterprises

1 Finger St., Gotham City

Fax: 555-369-2315

5. OPTIONAL PREPAYMENT. This Note may be prepaid in whole or in part at any time, without premium or penalty.[iv]

6. EVENTS CONSTITUTING DEFAULT. Maker shall be immediately in default upon the occurrence of any of the following events:

(a) Maker fails to pay any amount due hereunder in full when due and Maker fails to make such payment pursuant to the five-day notice provisions of Paragraph 3 above;

(b) Maker violates or otherwise fails to perform or observe any term, covenant, or agreement contained in this Note;

(d) Maker files or has filed against it any petition under any provision of the Bankruptcy Code, or any future bankruptcy law;

(e) default under any collateral, mortgage or security agreement given as security for this note or as security for the guaranty of payment of the obligations of the Maker hereof, or under any extension or modification thereof;

(f) Maker fails to pay any tax when due;

(g) any misrepresentation is made to the Holder hereof by the Maker for the purpose of obtaining credit or an extension of credit to the maker;

(h) sale or transfer of substantially all of Maker’s assets; or

(i) Bruce Wayne ceases to be Director of the Wayne Foundation charitable organization.[v]

7. ACCELERATION. In the event that Maker defaults under this Note, then, at the option of the Holder of this Note, the entire unpaid balance owing shall become immediately due and payable. Interest on the indebtedness evidenced by this Note after default shall be due and payable at the rate of five percent (5%) per month, or the highest rate allowable by law, computed from the day of default. Neither delay in asserting this right nor the acceptance of past due payments shall be deemed a waiver thereof.[vi]

8. DISHONORED CHECKS. In the event that any payment on this Note is made by a check that is dishonored by the drawee bank, for any reason whatsoever, there shall be added to the amount owing under this Note, the sum of Five-thousand Dollars ($5000.00) to cover banking charges, expenses related to such dishonored check, and inconvenience to the Holder of this Note.[vii]

9. WAIVERS. Maker waives presentment, protest and demand, notice of protest, dishonor and nonpayment of this Note and expressly agrees that this Note, or any payment hereunder, may be extended from time to time at the written consent of the Holder, all without in any way affecting the liability of the Maker. In any litigation with the Holder, whether or not arising out of or relating to this Note or any collateral security therefor, said parties expressly waive trial by jury, and in addition, expressly waive the right to interpose any defense based on any statute of limitations or any claim of laches and any set-off, counterclaim or cross-claim of any nature or description.[viii]

10. ATTORNEYS’ FEES AND INTEREST. If an event of default has occurred and the Holder of this Note refers it to any attorney for collection, Maker agrees to pay all costs and reasonable attorneys’ fees incurred by the Holder of this Note in connection therewith. Interest shall accrue from the date of default at the rate of sixteen percent (16%) per annum or the maximum legal interest rate, whichever is greater.[ix]

11. CONSTRUCTION. This note shall be governed and construed in accordance with the laws of the State of Gotham. Any provision hereof which may prove unenforceable under any law shall not affect the validity of any other provision hereof. For purposes of any action or proceeding involving this promissory note or any of the obligations of the undersigned, the undersigned hereby irrevocably submits to the jurisdiction of the courts of the State of Gotham and of the United States having jurisdiction in the County of Gotham and the State of Gotham, and agrees not to raise and waives any objection to or defense based upon the jurisdiction or venue of any such court. The undersigned agrees not to bring any action or other proceeding with respect to this Note or with respect to any of its obligations hereunder in any other court unless such courts of the State of Gotham and of the United States determine that they do not have jurisdiction in the matter.[x]

12. SUCCESSORS. The terms and conditions of this Note shall be binding jointly and severally upon the successors, assigns, heirs, survivors and personal representatives of Maker and shall inure to the benefit of any Holder, its legal representatives, successors and assigns.[xi]

13. NO-DEFAULT DATES. If the due date of any payment under the schedule in Paragraph 1 falls on a Saturday, Sunday or public holiday, such payment may be made on the next business day without constituting a default in payment under this Note.[xii]

14. PRESERVATION OF HOLDER’S RIGHTS AND REMEDIES. None of the foregoing shall in any way impact, limit or impair Holder’s rights and remedies in connection with the enforcement of this Note. The Holder hereof shall not by any delay, commission, failure to act or otherwise be deemed to have waived any right, power, privilege or remedy hereunder, and no waiver whatever shall be valid unless in writing signed by the Holder hereof, and then only to the extent therein set forth. No exercise of any right, power, privilege or remedy provided-for herein shall preclude any such subsequent exercise, to any degree, whether performed fully or partially. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law and may be exercised singly or concurrently.[xiii]

15. AMENDMENT. This note may not be changed or terminated orally, but only by a writing signed by the Holder hereof, and only after the Holder has been afforded a period of not less than three days in which to consult with a qualified advisor.[xiv]

Maker: Bruce Wayne

_________

[Signature]

Payee: Wayne Enterprises

_________

[Signature] By: Lucius Fox, CEO

[i] With noted financier Warren White controlling payments, Mr. Fox retains a level of plausible deniability as regards the nature of the funds. As the note satisfies the requirements of § 3-104(a) of the Uniform Commercial Code, it constitutes a negotiable instrument. Such a device allows the actors to sell the Note to other individuals, including other of Wayne Enterprises’ many clients (e.g., S.T.A.R. Labs, LexCorp, etc.), the better to camouflage the projects and launder the influx of funds. Using a payment schedule rather than a lump sum serves to minimize undue attention which the payments might otherwise draw, while still ensuring that sufficient capital remains available to meet the idiosyncratic and exacting specifications of the World’s Greatest Detective.

[ii] Beyond merely adding the extra security of bank-certification, requiring Bruce Wayne’s payments to be made by check rather than in cash provides an added layer of paperwork with which to ensure the billionaire’s continued cooperation, should investigators turn their attention to the activities of the Wayne Enterprises R&D division. With a long paper trail leading to Wayne Manor, and by extension to the Bat Cave, Mr. Fox also maintains a distinct advantage in any subsequent contractual negotiations.

[iii] Mr. Wayne is a busy man, prone to brief disappearances (whether away serving the Justice League of America or undercover as his Gotham underworld alter-ego, Matches Malone), and so the five day grace period exists to serve his unconventional schedule. Still, the period is relatively short, so that Mr. Fox may move quickly to cover his own assets, and those of the company, in the event of default.

[iv] In the event that the Batman’s needs exceed those funds provided for under the Paragraph 1 payment schedule, Mr. Wayne has the option of paying for the difference wherever a shortfall presents itself. This provision ensures that Mr. Fox is never forced to choose between illegally using corporate funds to fill a bat-order, on the one hand, or disappointing the scary man in the cowl, on the other.

[v] The safest way to shield Mr. Fox from the more dangerous aspects of Bruce Wayne’s double life is to ensure that a broad spectrum of activities and events are sufficient to trigger default under the Note, whereupon the Wayne Enterprises CEO may immediately move to recall the full extent of the Note’s obligations, unconditionally and without exception. Given that an alarming number of the Batman’s enemies have determined his true identity throughout the years (e.g., Dr. Thomas Elliot, Ra’s al Ghul, Dr. Hugo Strange, Edward Nigma, etc.), it is particularly advisable for Mr. Fox to regard certain events as warning signs that Bruce Wayne has in fact either been replaced by, or is under the influence of, such a dangerous individual. To that end, the occurrence of any event outlined in sections (a) through (i) of this provision should be seen to represent not only evidence of such financial difficulties as would ordinarily suggest to the prudent observer that outstanding debts should be collected, but also evidence that the Maker is not the real Bruce Wayne. In particular, if sections (h) or (i) are triggered, it may be assumed that the Maker is either under the influence of one of Jervis Tetch’s mind-control devices, or, alternatively, that Jane Doe has murdered Bruce Wayne and is wearing his skin as a disguise. The legacy of Thomas and Martha Wayne is embodied at Wayne Manor, and lives on through the charitable work of the Wayne Foundation; the real Bruce Wayne would never part with either.

[vi] Should Bruce Wayne (or, as noted, his doppelganger) default under the Note, this provision allows Mr. Fox to immediately move to recall the full extent of the Note's obligation, unconditionally and without exception. The accrual of interest on any unpaid balance thereafter increases the likelihood that Wayne Enterprises may claim a return from its investment in the Batman, without regard to the original pay schedule, even if the Dark Knight’s grip on the Gotham underworld may be in jeopardy. Putting a swift end to the contractual relationship under such circumstances serves to protect not only the corporation’s interests, but also Mr. Fox’s personal health and well-being.

[vii] In recognition of the fact that Mr. Fox's time is very valuable, this provision imposes a strict penalty for wasting that time. The CEO of Wayne Enterprises should be well-compensated for efforts expended due to the failure of an absent-minded young billionaire to maintain funds in his checking account sufficient to meet his obligations.

[viii] This provision further reinforces the negotiability of the promissory note, emphasizing that the Maker's obligations to the Holder are not subject to strict adherence to formal rules of presentment, protest, demand, or notice, but rather are absolute. The provision further waives both parties' right to elect a jury trial, in recognition of the fact that while members of the Gotham judiciary look favorably upon the efforts of the Batman, forcing Bruce Wayne to appear before a jury of his peers to justify Wayne Enterprises' massive expenditures would threaten the interests of all parties. Defenses which might be raised against a possible Holder of the Note are also waived in the interests of remaining discreet.

[ix] The natural and foreseeable consequences of Mr. Wayne's default should not fall on Mr. Fox, but rather should be borne by the billionaire.

[x] With nearly infinite resources, few concrete ties to the Gotham community, and a fleet of bat-shaped vehicles to traverse land, sea, and air, Bruce Wayne can afford to live comfortably anywhere in the world, and to do so at hardly a moment's notice. Requiring that the Maker waive venue and jurisdiction defenses ensures that the playboy may not simply pull up his local roots and evade the reach of the Gotham's judiciary whenever it pleases him to do so. It also ensures that the laws governing the contract are those well-known to Mr. Fox, rather than any number of obscure foreign edicts with which the globe-trotting Detective might be familiar.

[xi] As the Wayne Enterprises R&D division is not infallible, neither is the Batman invincible; thus, in the event of Bruce Wayne’s death, the present Note will continue in force and effect with his successors becoming responsible for the remaining debt obligation. Indeed, as it is likely that the mantle of the Batman will be taken up quickly by one of his sons, whether adoptive (Dick Grayson or Tim Drake) or biological (Damian Wayne), the need for Wayne Enterprises to continue to fund the ongoing mission of Gotham’s protector is likely to continue, and so the contractual relationship should remain place.

[xii] Just because the Caped Crusader never takes a day off doesn’t mean that Mr. Fox should have to be out double-checking the timeliness of payments on Thanksgiving.

[xiii] This provision once again reinforces the notion that the Maker's obligation to the Holder of the Note is absolute, subject to no exceptions, and dependent upon no additional event or occurrence. The provision further provides that the Holder, whether Lucius Fox or any subsequent individual, may fully exercise any rights found within the Note, or those provided by law.

[xiv] Given the efficacy of the Batman's well-known persuasive techniques, not to mention his access to manipulative technologies and chemicals, it is highly advisable that any change to the existing agreement be made in writing, and that consultation with both lawyers and accountants take place prior to any commitments being made. The Batman may adhere to a strict moral code, but good-faith contractual negotiation is not really his style.

Tranzit

2009-11-03T16:57:00.003-05:00

Windsor Transit's slogan: "Wherever life takes you."

It's like they're recognizing that something must have gone terribly wrong to bring you to them.

2009-10-20T13:59:00.005-04:00

We were this close to getting out of here forty minutes early, O Mister Frighteningly Pale Guy Who Day After Day Wears an Osgoode T-shirt and Army Boots, before you asked your question of the professor -- that is, when you opened your remarks with a meandering anecdote and then asked for the professor's "impressions" on the issue we'd spent the entire class canvassing, ensuring that he would reply at equal or greater length. You owe me that forty minutes.

#PreparingForMyFutureFail

2009-10-15T14:09:00.002-04:00

Osgoode is now sending emails about articling opportunities for the 2011/12 year. :(

Clearly This is What I Did Wrong in August

2009-10-13T10:44:00.005-04:00

interview cheat codes

A "Fun with QuickLaw" Thanksgiving

2009-10-09T10:02:00.018-04:00

In 1578, English privateer and explorer Martin Frobisher held a formal ceremony in what would one day become the province of Newfoundland and Labrador. He and his crewmen gave thanks for their safe return from their journey north in search of the Northwest Passage. The search yielded nothing but 200 tons of Fool's Gold, which made the voyagers look quite the jackanapes upon their return to England; but at least they didn't have to eat one another, which is more than can be said for the Franklin Expedition.

431 years later, climate change has made Frobisher's dream of a Northwest Passage a reality, and we mark his success by observing Canadian Thanksgiving on the second Monday in October.

A LexisNexis^® Quicklaw™ search of (Thanksgiving) yielded a series of family law rulings dividing custody between parents on different holidays. Family break-up is hilarious and all, but The Other Half has mined this territory before. Searching for (Thanksgiving turkey) produced more promising results. Specifically,

Schell v. Truba [1989] S.J. No. 538.

The head note piques one's interest right off the bat:

Civil rights -- Torts -- Trespass -- False imprisonment -- Plaintiff being arrested by police officers -- Plaintiff suffering injuries -- Officers not informing him of his rights and not acting in good faith -- Plaintiff being granted $2,000 general damages plus special damages for false imprisonment, assault, arrest and subsequent personal injuries -- Canadian Charter of Rights and Freedoms, s. 10 -- Criminal Code, R.S.C. 1985, c. C-46, ss. 25(1), 29(2), 101(1) -- Police Act, S.S. 1985, c. P-15, s. 19.

A civil action against a police officer! False imprisonment, with

injuries! General and special damages! Truly, we have much to be thankful for this holiday season.

We begin our odyssey in Prince Albert, Saskatchewan, October 10th, 1986. Two armed robberies take place: one at Sylken Confectionery, the other at a Mr. Submarine franchise.

Already we have to stop. Clearly we are dealing with desperate people:

(a) nobody goes to Mr. Sub unless driven there by circumstance, and

(b) as everyone knows, Subway keeps more cash on the premises [Did Quizno's exist yet?].

Though the robbery is over in under a minute, the owner of Sylken Confectionery, "former alderman and well-known business man" Kenneth Dale McLeod, gets a look at his aggressor. The armed robber is described as 5'10" to 6" in height, with a mustache and long brown hair -- or, 1986. He has a nylon over his head. [At left: a composite of the suspect.]

Two days later, on Thanksgiving Day, Former Alderman McLeod watches a black Trans Am with Alberta plates cruise past Sylken Confectionery. The driver stares him down as he passes. When he reaches a nearby stop sign, he and his passenger get out of the vehicle and look back at Former Alderman McLeod again, as if to communicate to him, We robbed you of your delicious treats just days ago and now we've returned to besmirch the reputation of your underage daughter, or something of like effect.

Later, Former Alderman McLeod sees the same Trans Am in his store parking lot. Remember, it's 1986: a Trans Am owner is like the Pied Piper of underage female confectionery store employees. Fearing the worst, Former Alderman McLeod enters the store and regards its sole customer from the rear. He too is about 5'8" and resembles 1986. The customer turns around, and, appearing concerned [we can only assume he stroked his mustache while his eyes darted about], picks up his purchase and leaves.

The Alderman and his son pursue the Trans Am. We can speculate that they are driving an ice cream van which plays a merry tune. The ice cream van loses the Trans Am in the labyrinthine causeways of metropolitan Prince Albert. But good fortune! A black Trans Am with Alberta plates is spotted by police, parked at a residence nearby.

Naturally, the police establish a perimeter around the house with shotguns and bulletproof vests, and set about obtaining a search warrant. Among the police are officers Truba and Hunter, the defendants.

The police believe that the occupants of the house, known to them as Barry Remple and Bruce Padley, are responsible for the two recent robberies. (Spoiler: They are not.)

At this point His or Her Honour Sirois J. sets the scene:

Diagonally across the back alley from [the house occupied by Remple and Padley] a more festive atmosphere prevailed. At that home resided Florence Tolofson, her son, Tracy and one Ralph Sand. The day previously, on the 11th, her daughter Karen, her husband Bruce Allan Schell (the plaintiff), and their children came from Melfort to celebrate Thanksgiving with Florence. They slept at her place on Saturday night and an early Thanksgiving turkey [aha!] meal around 1:00 p.m. was planned for Sunday. As fate would have it, Florence Tolofson's stove was not functioning, so around 8 o'clock on Sunday morning she took the bird over to her daughter Marilyn's place ... to use her oven. At that house, the children were still in bed; Barry Remple and Bruce Padley (one of them a boyfriend of Marilyn -- both men strangers to Florence) were up and around. Marilyn and another sister Roxanne were due to return from Melfort for dinner.

The reader can easily imagine this sequence of events reenacted in grainy black-and-white on a true crime show. Ominous low notes would play.

So we've established the Thanksgiving connection -- but when do we get to the good stuff?

WELL.

The plaintiff realizing that he had left his purse [his purse, Your Honour? is the plaintiff will.i.am?] in the cubby hole of his own business truck also parked in front of Florence's house, went to retrieve it. A marked police vehicle driven by the defendant Hunter pulled up behind the truck. There are different versions of the conversation that took place between the two. Hunter says that he began talking by saying, "Good day" and asking the plaintiff who he was. The plaintiff answered Bruce Schell. Then Hunter told the plaintiff why he was there and that he was interested in the house he had just come from. The plaintiff, he said, seemed somewhat annoyed about the intrusion, and told him that he knew nothing about an armed robbery and that he had nothing more to say to him ...

Bru-u-u-uce! Why be belligerent to the police when you haven't done anything! Is it because you wanted your name to be preserved for the ages in the Saskatchewan Reports?

Hunter asked him if he would like to come with him to the police cruiser, to which the plaintiff asked if he was under arrest. When Hunter assured him that he was not, the plaintiff then said that he had nothing more to say to him and he entered the house. Thus ended their conversation.

Okay Bruce, you're not a complete wad. You have a surprisingly firm grasp of the Charter of Rights and Freedoms -- specifically, your right to be free from arbitrary detention -- for somebody in 1986. You're either a lawyer or a skid with some prior experience with detention by the authorities. I'm leaning toward the latter, but it's not because you're from Saskatchewan. It's because of what's about to transpire.

The police broaden their surveillance net to ensnare the "festive" neighbouring house. Florence Tolofson, seized by the spirit of the the holiday, decides to invite relative strangers Barry Remple and Bruce Padley to her table, just as centuries ago the Jesuits might have invited the Wyandot¹ to share in a bounty of fellowship and infectious European diseases. That analogy doesn't go too far, however, for in this case it's not the visitors who come to regret their gesture of friendship, but the hosts.

Per Florence's instructions, Bruce Schell and two other Tolofsons visit the Remple/Padley estate to invite their neighbours for dinner. The offer is accepted and the party heads for chez Tolofson. It is at this point that the police decide to execute their warrant.

Traversing the alley between the houses, Barry Remple, Bruce Padley and Bruce Schell are stopped by an unmarked patrol car driven by defendant Sergeant Truba. Truba gets out of the car and bids them halt. Bruce Schell informs Sgt. Truba that as he has "already spoken to a police officer" he will forbear from repeating the experience.

Sgt. Truba steps in front of Bruce and places a hand in the middle of his chest, apparently with the intention of frisking him. Words are exchanged. At least one F-bomb is lobbed at Sergeant Truba, who is shaken but unharmed. The barrage escalates to a shoving match.

As is often the case, the judge's ultimate ruling may be extrapolated from the language in his/her recitation of the facts:

At that moment, [co-defendant] Hunter who had come up from behind, jumped the plaintiff, pushed him to the ground with his face in the gravel with an arm lock around his neck. He pinned the plaintiff's other arm around his back. [Hunter] eventually got the handcuffs on [the plaintiff] with Truba's help and placed him in the patrol car. While on the ground, the plaintiff's face was red, he could not breathe and nearly passed out. The goings-on in the back alley attracted the attention of neighbours. The plaintiff's wife asked Sergeant Truba what was going on and he replied he did not have to tell her anything. The plaintiff, while on the ground beneath Hunter had the humiliation of seeing his wife and children staring at him in disbelief. He could not believe that this was happening to him.

Sergeant Truba is to be commended: nothing defuses a potentially explosive situation and alleviates a bystander's concerns like "I don't have to tell you anything". If he had worked in an "I am the law" and taken out his firearm might have been eligible for the Alonzo Harris Award for Community Fellowship.

Schell was taken to the police station, where he remained for five-and-a-half hours.

[Schell] willingly participated in a lineup. The photograph of the lineup ... is quite revealing. The plaintiff is number 2, while the two suspects, Remple and Padley are numbers 10 and 3. The plaintiff is clearly larger than either of the other two. The Tolofson brothers who accompanied the plaintiff in the back alley prior to the fracas are even larger than he is -- Ken weighs 255 pounds and measures 6 feet 3 inches; Tracy is 6 feet to 6 feet 1 inch and weights 210 pounds. They are huge. How either defendant could mistake them for the accused is difficult to fathom particularly in view of the fact that prior to setting out on the raid the police were given artist's composite drawings of the suspects ... . [T]hey were told that one of the suspects was a white male between 5 feet 8 inches to 6 feet in height, fairly thin build with blond collar-length hair and a mustache. That description hardly fits the plaintiff. Sergeant Truba said he was searching for a Luger. The bulge he saw in the plaintiff's jacket were consistent with his two hands in his pockets and nothing else -- certainly not with a 5" by 7" Luger. The plaintiff had no weapon on him and this was easily ascertained by Sergeant Truba when he frisked him.

The defence contends that the officers acted in good faith, and had reasonable and probable grounds for acting the way they did. According to s. 19 of the Police Act,

[No officer within the purview of the Act] shall be personally liable for any loss or damage suffered by any person by reason of anything in good faith done ... pursuant to or in the exercise or supposed exercise of the powers conferred by this Act or the regulations.

The plaintiff, however, relies on s. 29(2) of the Criminal Code, which says that anyone effecting an arrest has a duty "to give notice, where feasible, of

(a) the process or warrant under which he makes the arrest; or
(b) the reason for the arrest."

Moreover, s. 10(b) of the Charter provides that "Everyone has the right on arrest or detention to be informed promptly of the reasons therefor".

One instance when it might have been feasible to provide such notice might have been when Mr. Schell's face was in the gravel and he and his wife were asking why he was being arrested. But hey, hindsight, right?

Sirois J. is of the same mind. Without going into too much more detail, the trier of fact finds the following particularly egregious:

spontaneous frisking of the plaintiff by Sgt. Truba;
Officer Hunter grounding and arresting Mr. Schell after having already cleared the man of any wrongdoing; and
the officers' failure to apprise themselves of relevant facts (and their blindness to the facts they had already ascertained) before jumping to a conclusion "which was entirely wrong and totally baseless".

In all, the officers' handiwork amounts to violations of sections 7, 8, 9 and 10 of the Charter -- the Charter Grand Slam!

So egregious was the officers' behaviour that the plaintiff was entitled to general damages in the amount of $2000 for shock and for injuries to his neck and arms, and another $1500 in special damages was warranted against the defendants for their having defended the charge.

Happy Thanksgiving!

¹ _{My browser thinks Wyandot is misspelled. For shame.}

Litigation: Not Just for Jerks (But It Helps)

2009-10-08T10:58:00.007-04:00

The three best classes I've taken in the last three years:

3) Law and Literature

No mystery here: 25-page literature essay and no exam, plus it's the only class in which I got an A+. Or an A, for that matter. As if I needed confirmation that I'm in the wrong racket.
The workload was light: one or two short stories related to the practice of law and/or written by current or former legal practitioners. Authors ranged from Kafka to Atwood. My essay related to John Mortimer and the Rumpole series of serio-comic mysteries.
I worked hard in this class, but I thought that I might fall into the trap of focusing hard on the thing I like the most, to the detriment of my other classes, so I strove to maintain a balance and not put off other things in favour of this. And I got a good mark in this and mediocre-to-bad marks in everything else anyway.

2) Ethics of Criminal Justice

I'm not what you would call "ethical". (I would estimate that I've stolen 30GBs of music from the internet people in the last six weeks, not to mention numerous television shows and movies, most of which I haven't even listened to/watched. And I shoot defenseless creatures.) But this class was taught by a Toronto criminal law practitioner with a great deal of courtroom experience and a flair for hypothetical ethical dilemmas with no right answers.
Q: "You've been forced to put your client on the stand (often a bad sign) and during cross-examination, he starts telling a story you've never heard before and that Your Friend is going to use to bury him. You're desperate to get him to shut his mouth. What do you do?"
A: You can't do jack, of course, but my response, "Pull the fire alarm", made him laugh long and hard, which is why that particular question stayed with me. (... It was funnier in context.)
Now he was in the right racket: his audience of would-be criminal lawyers would leave filled with dread one week, inspired and galvanized the next.
The exam was a sprint: twelve questions in two hours, or one question per chapter of the textbook, with fifteen minutes to answer each question. I had sweated through my clothes by the end but I got a B+, which was (tied with) my best mark up to that point.

1) Trial Practice

This one is ongoing, but it already seems like the most rewarding course for someone who might like to litigate (next to Evidence, which is a prerequisite). Taught by a dozen current or recent practitioners, it takes students through the trial process from opening to closing, with classes devoted to direct examination, introducing exhibits, qualifying expert witnesses, and cross-examining and impeaching witnesses. One day we cross-examined police witnesses played by actual TPS officers.
It's pass/fail, which is too bad, because I think I might actually have gotten a good mark in it. But it wouldn't be fair, because in this class, unlike many classes, it's clear that there's a limit to what students can actually pick up -- some just have it and some don't. Which is fine: many, many people have no intention of litigating, and there are certainly other, arguably more effective (and definitely cheaper) ways of dispute resolution. But effective rhetoric, trial strategy and examination skills are definitely valuable assets even if you plan to do all your negotiating behind the scenes.
I'm once again falling into the favesies trap, devoting way too much time to a pass/fail course only because I prefer the material over reading substantive law. Systematically destroying someone using only his or her own words is the most gratifying thing you can do in law school. Better still, the witness is one of your peers, and if you really shut him/her down, he/she will applaud you at the end.

Tetris Dreams

2009-10-03T11:06:00.008-04:00

For a while in undergrad--and who am I kidding, most of law school--my in-class internet distraction of choice was online Tetris. My brother had the same affliction but he was a lot better at the game: his hand would hum over the arrow keys like Data piloting the Enterprise.

It got pretty bad. I had to get a Firefox add-on called LeechBlock to prevent me from accessing certain sites (see also: Websudoku, if you dare!)--and then a whole other program called Website Block to prevent me from switching to Internet Explorer to thwart the Firefox add-on. That I had installed myself. To make me more productive.¹

My Tetris-playing ended one night when I closed my eyes and found myself seeing irregular bricks raining down behind my eyelids. I imagined them piling up at the bottom of my vision. Frantically arranging falling blocks is no replacement for counting sheep.

All this to say that yesterday I spent all day, from 9:00 a.m. (at which point the dog is up, so I am up) until midnight, reading notes on Immigration Law, and cross-referencing them with the appropriate provisions of the Immigration and Refugee Protection Act and accompanying Regulations. And last night I dreamed in numbered paragraphs and sub-paragraphs.

* * * * *

¹ _{Unrelated: Clearly I am not one of the majority of people who doesn't know what a browser is. I have a lot invested in the browser war. I've now switched to Chrome because I have a small laptop monitor and the Chrome browser takes up the least screen real estate--and not a little because it doesn't have LeechBlock on it.}

Street Justice

2009-10-03T10:57:00.006-04:00

Previous post reminded me of this, my favourite Toothpaste for Dinner comic. I wish I had it on a mug. If they sold that I would buy it.

Bored J.

2009-10-03T01:32:00.002-04:00

You are like the Buzzing of Flies to Him!

2009-10-01T15:09:00.007-04:00

I'm sitting in my Public International Law class right now. It is my third attempt to take a worthwhile class on international law and, after a month, seems poised to be almost as much a failure as the previous two.

My regular professor, Ikechi Mgbeoji, is away this week. The LL.M candidate lecturing in his place is a female version of Dr. Janosz Poha from Ghostbusters II.

It's fortunate that the lecture has a corresponding Power Point slideshow, because I have no idea what Janosz is talking about; probably how Vigo (the scourge of Carpathia and the sorrow of Moldavia) flaunted international custom. The girl sitting in front of me evidently can't follow along either, because she's copying pictures from fashion blogs and uploading them to her Tumblr for some reason.

O, girl who sits in front of me, you are perversely captivating: you look like a disaster, with your hair bleached too many times, until it has the texture of a horse's mane (or at least appears to--I'm not stroking it); with your grunge-y clothes and sloppy giant purse; with your indifference toward your lectures and your surroundings¹, manifested in frequent tardiness and a perpetual hunch; and yet--cumulatively these affectations compose a picture of wealth. How can this be? And how do I find your Tumblr?

But I didn't come here to ruminate on the elegance of my classmates; I came to learn about International Law, and as usual that seems less likely to occur with each passing moment.

Now I must gird myself to make a conspicuous departure.

¹ _{can't argue with you there}

Things Upon Which I Will Waste My Future Money

2009-09-29T16:51:00.008-04:00

In roughly ten months, barring disaster, I will embark upon a year of articling, and begin making real money for the first time. Not as much as people that stopped going to school several years ago, of course, but nonetheless a huge step up from the tube-slide watching and shoe polishing of my past.

As that glorious time slowly approaches, I frequently find myself thinking about my first paychecks. Food and shelter will theoretically occupy a privileged position in my hierarchy of needs, but they are unexciting. Here's where the rest of the money will go, Maslow be damned:

Playstation 3 -- 'cause I may now finally be old and responsible enough to have my very own game platform without sacrificing my future, despite all evidence to the contrary
a vehicle that doesn't bounce around like a dune-buggy on even the flattest of surfaces -- probably one of these, one of these, or one of these
a TV so big it'll make my eyes bleed -- 'cause what's the point of the Playstation 3 if I have nothing with which to match its majesty?
this sweet shotgun, or one like it
suits -- whatever GQ tells me, for the first little while at least
new skates -- I have a sneaking suspicion that if I had just had some decent skates, instead of constant used ones, I could right now be retired from the NHL after blowing out my knee as a rookie
new ski boots -- same principle, but retired from winning Olympic gold medals instead of Stanley Cups
Batcave -- 'cause (1) I'll need a place to unwind after a long day on my feet chasing ambulances, (2) an arctic Fortress of Solitude is totally impractical and cold, (3) my suits will require a lot of space, and (4) the Batmobiles go in it
another external harddrive -- I'm running out of space, is all
Europe -- too many people are going there and enjoying it, shut it down; Asia too
taxes! -- decades of Liberal governments have created a monstrous welfare state that needs constant feeding (vote Conservative so we can kill it and buy more fun things with the money we'll save!)

Psychology Fail

2009-08-28T17:53:00.005-04:00

The reason this Onion article is funny is the same reason this CBC.ca article is irritating.

Warning: Actual Legal Content

2009-08-12T10:45:00.012-04:00

Don't worry, it's brief. Also, every use of the word 'brief' doesn't have to be a pun. How can you have an offence of "attempt to possess [narcotic] for the purpose of trafficking"?

Such a charge, on its face, seems either

(a) an attempt to charge someone with trafficking who ought to be charged with possession, because trafficking is indictable and the sentences are more severe; or

(b) redundant with a charge of Possession for the Purpose.

A circumstance has arisen, however, where it makes some sense: an individual (let's call him Smartest Cop Ever) comes into possession of a quantity of controlled substance (A Veritable Blizzard) and conceals it. S.C.E. has no apparent connection to the drug trade and no means of marketing or profiting from this windfall -- the Breaking Bad problem. As such, he has none of the common indicia of drug trafficking: scales, gobs of cash, debt lists, association with hip-hop stars. However, the sheer quantity of product, its location when eventually discovered, and S.C.E.'s behaviour make it unlikely that he kept the drugs for his own personal use.

UPDATE | There was a crucial fact missing from this sequence of events that distinguishes possession for the purpose of trafficking from attempted possession for the purpose: the police had substituted a decoy for the cocaine and as such the accused never possessed it in an amount sufficient to justify an inference of intent to traffic. Unbeknownst to him, the accused was in possession of a small amount of cocaine, and a large amount of flour with a tracking device buried inside.

*_{He's also charged with breach of trust by public officer, Criminal Code s. 122.}

Jarndyce v. Jarndyce*

2009-08-03T12:52:00.006-04:00

"The Lawyers have twisted it into such a state of bedevilment that the original merits of the case have long disappeared from the face of the earth. It's about a Will, and the trusts under a Will -- or it was, once. It's about nothing but Costs, now. We are always appearing, and disappearing, and swearing, and interrogating, and filing, and cross-filing, and arguing, and sealing, and motioning, and referring, and reporting, and revolving about the Lord Chancellor and all his satellites, and equitably waltzing ourselves off to dusty death, about Costs. That's the great question. All the rest, by some extraordinary means, has melted away.

... "All through the deplorable cause, everything that everybody in it, except one man, knows already, is referred to that only one man who don't know it, to find out -- all through the deplorable cause, everybody must have copies, over and over again, of everything that has accumulated about it in the way of cartloads of papers (or must pay for them without having them, which is the usual course, for nobody wants them); and must go down the middle and up again, through such an infernal country-dance of costs and feeds of nonsense and corruption, as was never dreamed of in the wildest visions of a Witch's Sabbath. Equity sends questions to Law, Law sends questions back to Equity; Law finds it can't do this, Equity finds it can't do that; neither can so much as say it can't do anything, without this solicitor instructing and this counsel appearing for A, and that solicitor instructing and that counsel appearing for B; and so on through the whole alphabet, like the history of the Apple Pie.

... "Counsel will have something to say about it; the Chancellor will have something to say about it; the Satellites will have something to say about it; they will all have to be handsomely fee'd, all round, about it; the whole thing will be vastly ceremonious, wordy, unsatisfactory, and expensive, and I call it, in general, Wiglomeration. How mankind ever came to be afflicted with Wiglomeration, or for whose sins these young people ever fell into a pit of it, I don't know; so it is."

* Charles Dickens, Bleak House (1851), at 118-122

Six months on

2009-07-22T08:50:00.017-04:00

and the sheep are already wandering away.

And no wonder -- how dare Barack Obama not fix decades of decadence and graft after six months in office! At a time when the 24-hour news cycle is now 24 minutes long, who is he to think that people won't demand results in a similar time frame?

I think that the new president of ~~the USA~~ Bargainville should take to heart the story, probably apocryphal, of Soviet General Secretary Nikita Khrushchev's two letters to his successor Leonid Brezhnev (the one with the eyebrows). [EDIT: It is altogether likely that I stole this story from the Steven Soderbergh movie Traffic unconsciously.] A very cursory Google search did not yield this story so I will relate it as I recall it:

On the first day of Secretary Brezhnev's term in office, he sits down at his desk (steel, two hundred pounds, gunmetal blue, in the Bolshevik fashion) and opens the drawers. Inside the bottom drawer are two envelopes addressed to him from his predecessor. The first reads, "Open me the first time you get into trouble."

This being the Soviet Union, in due course Secretary Brezhnev is in political hot water. The Party is at his throat, the mob is at his doorstep. He opens the first letter. It contains only two words: "Blame me."

Secretary Brezhnev complies. He tells the Party that Khrushchev's legendary incompetence brought them to this pass, but that he will get them out of it. The Party blames Khrushchev, the mob is mollified.

Years pass and the Secretary's fortunes wax and wane. [Brezhnev was in power for eighteen years, until his death; this part of the fable is a little thin.] Finally, rampant economic stagnation cannot be ignored [at least that part is true] and the proletariat is whispering again. Despairing, Brezhnev rips open the second envelope. This one contains three words: "Write two letters."

Comrades Obama and Brezhnev both attained to the captain's chair, as it were, too late to turn their respective ships around, but just in time to take the blame for the vessels' going down. The difference between the two is that here we have some indication that Brezhnev's predecessor could spell.

A Proposed Moratorium

2009-07-17T16:46:00.008-04:00

When a seventeen-year-old does something idiotic that mimics something (likewise idiotic) he saw in a movie, such as bombing a Starbucks like "Project Mayhem" did in Fight Club to dubious effect, the media shouldn't be allowed to say he was "inspired" to do the deed by said movie. "Inspiration" is what happens to inventors, artists, innovators. "Wildly missing the point of Fight Club" is what happened to this dude.

Anyway, if the poor, stupid bro really wanted to pay homage, or whatever, to "Project Mayhem" and Fight Club, he should have bombed a large piece of "corporate art" in a manner calculated to incidentally destroy a Starbucks. And then he should have gotten shot in the back of the head.

(I want to weep like Cornelius every time I have to type "Starbucks" without an apostrophe.)His name is Robert Paulson. His name is Robert Paulson. His name ...

Attn: skids

2009-07-08T17:29:00.002-04:00

It is imprudent to report your victimization to police while you are high on crack cocaine.

The more you know! [chimes]

Skills that did not make it onto my articling applications

2009-07-07T20:34:00.001-04:00

Gmail labels
tying a tie so that it falls to the proper length, just grazing the belt
alphabetizing bookshelves
furrowing brow in direction of caselaw/charge sheets/dockets/computer screens/justices of the peace
pluralizing multi-clause titles
avoiding street corner charities
unlimited girl pushups
hair volume

Fun with Quicklaw: Glaringly Self-Serving Edition

2009-07-03T12:22:00.014-04:00

As summer edges damply forward, and back-to-school commercials linger threateningly just over the horizon, the thoughts of the aspiring lawyer turn idly to employment, and the grim spectre, casually-mentioned, that one's blog may be perused by decision-makers.

What was the last entry I made on this blog? the student wonders. Could it have been the one about the marijuana? Oh dear. That is not fairly representative. If only it could have been the one about justice (Texas-style), or that other one about how the Nashville Predators organization should give me $200. Oh well. Perhaps I am due for a new entry.

But what search string is called for in such a situation? Perhaps the interests found on one's resume will serve. The word 'caribou' in the British Columbia and Yukon law reports brings roughly 200 cases to attention. The noble beast has had some significant legal troubles, it would seem. A search for 'murder' within those results procures a rather more manageable six, among them them R. v. Wise, [1992] 1 S.C.R. 527. Odd, thinks the aspiring lawyer, I've come across this case before. Perhaps the volume of Canadian jurisprudence has been exaggerated!

The case should be known to any student with the unenviable task of arguing for the admissibility of ill-gotten evidence, under s. 24(2) of the Charter. Whether inclusion of such evidence will "bring the administration of justice into disrepute" is a question haunting many a moot court, and the Collins test haunts the dreams of many a moot court participant. Indeed, were the Supreme Moot Court of Windsor to have its way, young Jagrup Singh would today be walking free, despite the aspiring lawyer's best efforts in the spring of 2008, it must be admitted.

Mr. Wise, a suspect in a murder with possible serial implications, made the mistake of committing some mischief to property over $1000. Significantly over. Having placed an electronic tracking device in Mr. Wise's car during the course of their investigation, police had little trouble tying him to the destruction of a two-million dollar communications tower. The twisted hunks of metal found in his car provided fairly clearcut evidence.

Unfortunately, the police, armed with a warrant to search the man's property and vehicle, failed to install their tracking device until 30 hours after the expiry of that warrant. A Charter violation was made out, and Mr. Wise was acquitted. The Crown, however, was not so easily dissuaded. The Court of Appeals and the Supreme Court of Canada agreed that Mr. Wise should be imprisoned, in the interests of justice. While the accused's Charter rights under s. 8 were violated, the violation was forgivable based on the factors outlined in Collins. Noted Justice Cory for the majority of the Supreme Court, "the beeper monitoring of the accused's vehicle invaded a reasonable expectation of privacy" (para. 19) and thus violated s. 8 of the Charter; however, the evidence was not conscriptive, there was a pressing need for it, and the administration of justice was not brought into disrepute by its admission.

But what does the caribou have to do with it?

According to Justice Cory at paragraph 28, the mighty caribou herds solve a thorny problem afflicting law students nationwide: the definition of the word 'conscriptive' in s. 24(2) --

In this case, I agree with the court of appeal that the movements of the car constituted real evidence. There was no police compulsion or enticement which required the appellant to enter or drive his car. Rather he exercised his own free will. It was the accused who determined that he would drive his car, the routes he would follow and the manner in which he drove. The movement of an object may be transitory but it is real. The movement of a terrestrial body can be and often is plotted. That movement is transitory but real. The migratory route of the caribou herds is transitory but it is vital and real to those who depend upon that movement for food and clothing. So too is the movement of a motor vehicle real. This evidence could be considered conscriptive if the actions of the police forced or perhaps enticed the accused to utilize his vehicle and to follow prefixed routes in arriving at destinations selected by them.

Lessons learned:

If one happens to be a person-of-interest in an investigation into a rash of serial killings, it is best to keep one's head down, refraining from wanton destruction, even in the wilds.
The Collins test will stay with you long after the moot court's venerable doors have slammed on you. Whether or not evidence may be considered 'conscriptive' is a question which cannot safely be left to the academics. Only by the the migratory route of the caribou herds may you be saved.

Lessons learned in first year law, about which one is now uncomfortably reminded:

When the judge agrees to disagree with you about the meaning of the word upon which hinges the case, victory is probably not at hand.

The Month That Was June 2009

2009-06-30T00:12:00.010-04:00

For the past two months, there have been three obstacles to regular or even sporadic updating of this site:

having actual work to do,
my inability to finish David Copperfield, and
the DOJ's heroic vigilance over errant web-surfing (no Blogger, Facebook, Gmail, Twitter or Wordpress -- how will I know about new dead celebrity montages!), which relates to Obstacle 1 but merits its own bullet because I have so little willpower or self-control.

But it wouldn't do to let the month of June 2009 slip by without a single update, and so let us reflect upon

The Month that Was

June 1 - (present): stricken with either the most nagging cold ever or allergies for the first time in my life; hate and fear dogs, dust, grass, human touch, sunshine
June 4: police cadet calls me a "bleeding heart liberal"
June 8: security staff at Elgin Middlesex Detention Centre (read: screws) make uncharitable remarks and use foul language while audible over the Video Remand system; they are reprimanded by the Justice of the Peace
June 9: I review a file in which a prisoner tells the guards he has taken two ecstasy pills and has to go to the hospital, and then surrenders a bag of ten more ecstasy pills; this prisoner's date of birth is recorded as December 1996; I reflect on what I was doing when I was twelve years old and conclude that, though I wasn't dealing ecstasy, I might have been playing too much Warcraft II
June 12: accused person resolves the charges against him just short of his fiftieth appearance in #12 Court, at which date I really intended to ask whether or not we could, you know, get the show on the road a little bit
June 15: in Toronto for articling Q&A at the Ministry of the Attorney General (aka the provincial Crown's office); the two-hour production might have been reduced to one question ("do I have a hope of getting a job here?") and one answer (a snort)
June 17: back to Toronto for DOJ open house; a Crown prosecutor acquainted with my employer in London requests that I "ask him if he's sober these days"; I laugh because we're in public but do not pass on this greeting
June 19: I am required to encourage counsel to schedule pleas for Wednesdays only, when a federal Crown is guaranteed to be available to read in the charges; this request doesn't sit well with counsel, who don't want their clients to have to spend five more nights in jail in order that the federal Crown isn't inconvenienced; I resolve never to make such a request again
June 21: celebrate Father's Day by renting an enormous woodchipper for the whole weekend
June 21 (evening): want to watch Fargo for some reason
June 22: every member of London's news media turns out to #12 to see the two-minute appearance of a woman accused of murdering her three infant children; I try to sit up straight and look halfway competent for a change
June 23: the sole remaining person in the RCMP office remarks on his way out the door, "you're really burning the midnight oil these days" -- at 4:30 PM
June 25: Farrah Fawcett, biggest also-ran since Dodi al Fayed
June 26, 9:00 AM: a co-worker tells me that she thinks Michael Jackson was unfairly convicted by the media and holds out faith in his innocence -- which is ridiculous of course, but refreshing coming as it does from a prosecutor
June 26, 5:00 PM: board Greyhound bus en route to Toronto for the weekend; last remaining seat is next to a woman wearing a Snuggie; send text message to this effect to several people, careful to conceal the substance of the message from her view
June 28: miss Pride Parade in Toronto in favour of seeing Woody Allen's Whatever Works; conclude that God is LGBT; Whatever Works is an abomination and offends His sight
June 29: staff at Bluewater Detention Centre use language unsuitable for a courtroom, also while audible over the Video Remand system; they are likewise reprimanded -- they're not hired for their soft touch.

Damn you Peter Hogg

2009-05-21T14:38:00.005-04:00

How can a 1436-page book be the "abridged" version? And how did the publishers know to keep everything except the chapters I might actually need? And why does the index still refer to the chapters that have been deleted?

I Have a Legal Question

2009-05-19T12:33:00.004-04:00

My employer needs to know whether Superior Courts in Britain had inherent jurisdiction over all criminal charges as of the date of Canadian Confederation.

Specifically, we're interested in inherent jurisdiction over straight summary conviction offences (like s. 4(5) of the CDSA, simple possession of less than 30 grams of marijuana). My instructions included this direction:

"I think the issue boils down to the fact that Superior Courts in Canada have the same inherent jurisdiction as the British Superior Courts did at Confederation - I just need to know the scope of that jurisdiction at Confederation."

Thoughts? I'd hate to have to open a book for this.

Dream girl so beautiful, lips all crummy / Skin like asphalt, nose so runny

2009-05-19T12:08:00.003-04:00

Today a woman came into the video remand courtroom wearing a shirt that read "My [heart] belongs to what's-his-name".

Later her cell phone rang during open court (you didn't think she had a cell phone?) and she went "aw, shit!"

I missed this.

No to mandatory minimums

2009-05-11T14:02:00.003-04:00

I prosecute drug traffickers and I endorse this screed:
http://www.thestar.com/comment/article/631536

Sitting on the porch / Cursing the neighbourhood kids / Adulthood is bliss

2009-05-02T20:10:00.000-04:00

My exams are over and so, almost, is a week of sloth. My Toronto apartment is sublet(ted?) to, of all things, a second-year U of A law student who has a job on Bay St this summer and so may be presumed not to read this blog. Tomorrow I leave TO. I am headed back to the London Federal Crown for the summer. I hope this yields many more opportunities to use the Dirty Skids tag.

Now my feet are cold and it's time to sit or get off the porch.
Sent wirelessly from my BlackBerry device on the Bell network.
Envoyé sans fil par mon terminal mobile BlackBerry sur le réseau de Bell.

Fun with Quicklaw: 4:20 edition

2009-04-20T11:02:00.008-04:00

Today, April 20, marks the observance of a widely publicized secret holiday. Marijuana enthusiasts the world over will congregate to sample the hobbit's leaf and listen to some Marley. Maybe some Floyd, if there's time. There might not be time.

The origin of the holiday is shrouded in scented mystery. According to the 'pedia, it has something to do with the hour at which misguided youth get out of detention, and are again free to get themselves into trouble. In actuality, the origin is irrelevant. Stoners don't care. Over-thinking it will kill your buzz, 'cause then you realize it's also Hitler's birthday and the anniversary of the Columbine massacre, and it's hard to stay mellow thinking about stuff like that.

On Twitter, noted film director and marijuana enthusiast Kevin "Silent Bob" Smith began enthusiastically trumpeting the day's celebratory activities at a particularly un-weed-like hour: "8:45 on 4.20. All I've got today is conference call, so... LET THE BLAZIN' BEGIN! First up, strain called NY Diesel."

Silent Bob keeps it mellow. Something else that's mellow? Schadenfreude!

A quick search for '4:20 AND marijuana' leads to R. v. Smith, [2005] B.C.J. No. 176.

On November 8, 2000, police arrested Leon Edward Smith on campus at the University of Victoria, and charged him with weed possession with intent to traffick.
Smith, while not actually a student, per se, was nonetheless the president of a club called Hempology 101, which gathered on campus for open air meetings every Tuesday at 4:20 in the afternoon. Smith set up some signs, passed out some weed pamphlets, and then proselytized to his assembled listeners for half an hour or so. Then, a little puff, puff, pass with a fist full of joints.
Smith was arrested with 7.8 grams of weed. He had a lot of excuses:

he brought some of the weed, yeah, but he got the other bag at the gathering, and didn't know what was in it;
man, his back was hurtin' from playing rugby, and he needed that weed, 'cause it relaxed him; and
weed kept him from alcoholism and depression.

A retired university professor's testimony regarding the health benefits of weed was initially allowed, but ultimately given no weight, since Smith forgot to present evidence that he actually had any actual medical need in the first place.

He did profess to consider himself a political activist devoted to spreading the word about weed's medicinal uses. However, the Court was unimpressed by freedom of conscience and expression arguments under the Charter, since he wasn't arrested for his beliefs or the expression of his views, but rather for smoking and passing around an illegal drug. It's the difference between saying stupid things, and actually being stupid.

So what have we learned?

Marijuana, or marihuana? When writing a judgment in the British Columbia Provincial Court (Criminal Division), there is no need to choose! Alternating the spelling makes it fun for the reader, and also increases the chances of your case being discovered in legal database searches.
Saying you play rugby negates all possible credibility as a stoner.
Just 'cause you think you're a political activist, doesn't mean the laws don't apply to you. Nor does getting arrested make you a political martyr. You're probably just a d-bag.
Hempology 101 is not offered by the University of Victoria. No, not even in the philosophy department. It wouldn't look good on your transcript anyway.

Inaugural Email Post

2009-04-15T12:42:00.000-04:00

Blogging just got harder on the thumbs. Thanks, Blogger!
Sent wirelessly from my BlackBerry device on the Bell network.
Envoyé sans fil par mon terminal mobile BlackBerry sur le réseau de Bell.

Orson's Swell

2009-04-04T10:38:00.004-04:00

Watched Citizen Kane last night. I guess it's the greatest movie of all time.

You know what it could've used, though?

A speedboat chase.

Of course, that's a lot like saying that a meal could've used some bacon. Always true.

If he'd made a movie about eating bacon on a speedboat, Mr. Welles would've had a real hit on his hands.

Boring Class Bingo

2009-04-02T12:33:00.018-04:00

Civil procedure can be less than scintillating. Not every landmark decision is written by a xenophobic Texan with a penchant for workplace sexual aggression. However, there is a cure for this malaise, provided your class is small enough, and not made up entirely of traitorous saboteurs: BINGO!

Your grandmother would be psyched. If you threw in a slot machine, she'd be signing up for the LSAT right now. Hell, you had her at "xenophobic Texan."

The rules:

The regular rules. They haven't changed since you last played.
Players must submit a nominal entry fee (the pot) before receiving a card.
Players may not actively alter the course of a lecture in order to fill in squares.
Upon completion of a line of squares, the player must raise his or her hand, and work the word "bingo" into a legal question:

Naturally, there must be a wide variety of categories in order to create a challenging and long-lasting game, and to ensure that there aren't a dozen simultaneous winners.

Potential squares:

The professor uses a latin phrase.
Infrequent class participants participate.
The professor makes up a hypothetical in which a company designs, manufactures, markets or sells widgets. (What are widgets? Is it so difficult to come up with a product that actually exists? Screwdrivers. Microchips. There's two, right off the top of my head. Pistols. Syringes. Those two are from looking out the window. It's that easy.)
Your class's frequent-sneezer sneezes, startling those around him.
The professor adjusts his or her pants. (This may be one- or two-handed, depending on professorial obesity.)
The small-bladdered student leaves class in the middle, or the chronically late one enters.
Somebody misuses a word.
The class covers a case involving a rail yard, or a steel plant. (Those are some seriously litigious locales.)
A cell phone rings.
The professor quotes one of Lord Denning's dry witticisms.
Roger says "Gee," "Well," or "Gosh". (He will.)
The professor strolls to the back of the class, prompting a flurry of facebook minimization.
The FREE square!

There will be widespread laughter when somebody is victorious, which creates the risk that the game will be discovered, and the fun will have to end. The trick is to convince the professor that he or she is really bringing jurisdictional and venue issues to life. If you can do that convincingly, you've truly won the game.

April Fool's, Justice Cosgrove! Clean Out Your Desk

2009-04-01T12:53:00.004-04:00

Cross-posted from Law is Cool

The Canadian Judicial Council released its report yesterday that Justice Paul Cosgrove "failed in the execution of the duties of his judicial office" and recommended that Parliament strip him of his position as superior court judge.

In spite of Cosgrove's public apology for the debacle, and repudiation of his own ruling, the CJC report noted that "public confidence in his ability to discharge [his judicial] duties in future has been irrevocably lost."

The recommendation related to Cosgrove's conduct while presiding over the first-degree murder trial of Julia Elliott in 1997. Cosgrove found that police and Crown officials violated the Charter rights of the accused on over 150 occasions, and ordered her release. In 2003, the Ontario Court of Appeal ruled that Cosgrove J.'s findings were without merit and ordered Elliott to be retried. She pleaded guilty in 2005. Attorney General Michael Bryant complained to the CJC thereafter.

The CJC canvassed the misconduct giving rise to the ruling of abuse of process, which included:

giving rise to an apprehension of bias;
repeated and unwarranted interference in the activities of the Crown and the RCMP;
unfounded threats of arrest or citation for contempt;
rude, abusive or intemperate language; and
arbitrarily suppressing a federal immigration warrant.

The disgraced judge's fate now lies with federal Justice Minister Rob Nicholson and his recommendation to Parliament.

In December, Cosgrove will turn 75, the age when judges are required to retire. Should Parliament break with longstanding tradition and take swift action against him before then, Cosgrove stands to lose his $170,000 annual pension.

Cosgrove sat on the bench for 25 years. Prior to his appointment in 1984, he served as public works commissioner and as the mayor of Scarborough.

This would mark the first time Parliament has removed a judge from office. In 1996, Justice Jean Bienvenue narrowly avoided that honour by resigning before the axe could fall.

Chances to kick a superior court judge while he's down come seldom, and The Other Half would hate to pass up that chance in favour of such a fleeting virtue as decorum -- why, if the undoing of Cosgrove J. has taught us anything, it's that 25 years of decorum can be dashed by a mere 150 unfounded determinations of police misconduct. As such, the following are some helpful suggestions to sitting judges, derived from Cosgrove J.'s ongoing misfortune:

So your peers in the Canadian judiciary feel you've undermined confidence in the justice system and brought shame upon the silk robe; discretion is the better part of valour! Apologize early and often.
When levying baseless threats and accusations of misconduct against the police and Crown, ask yourself: how much is too much?
It is never too late to cultivate a personal relationship with the Attorney General. After all, political connections got you the job in the first place!

Fun with QuickLaw: dashing leading man edition

2009-03-30T23:49:00.023-04:00

I don't know what possessed me to type "George Clooney" into QuickLaw. I was getting frustrated -- "river of blood", "Twitter" and "the original smoking gun case" had all produced nothing. (The last one was a long shot, but wouldn't that have been awesome? Yes it would have been awesome.) Typing "Easter bunny" had, improbably, produced a depressing account of infant death. My God, "Fun with QuickLaw" is about laughing at the ignorant, not gawking at tragedy! Decorum, if you please.

Sexy pediatrician Dr. Doug Ross saved the day.¹ Maybe it's because Three Kings was on TV on the weekend, neutered of swear words and violence. Maybe the mind just settles on George Clooney like a weary salesman curls up next to his sleeping spouse.

It so happens that swear words, violence and George Clooney's tidal magnetism are some of the factors threatening the proper upbringing of young Brandon Scalisi, according to his parents' custody battle, Peterson v. Scalisi, [2001] O.J. No. 2774.

Custody disputes arise frequently in "Fun with QuickLaw". Judges in such disputes are called upon to compare the parties' worth, sight-unseen. For lack of a better yardstick, they rely upon quotidian cultural signifiers -- for example, "The Sopranos", "Rob Zombie" or "nachos for breakfast"; all viable candidates for future "FwQL" segments, all appearing in the case at hand. But we get ahead of ourselves!

Meet the Scalisi family: Nicole Heidi Peterson, Applicant; Michael Frank Scalisi, Respondent; and young Brandon Scalisi, Object of Dispute. According to the head note, the parents "met in a bar where the mother was working as an exotic dancer and the father was a probationary member of [the Outlaws] motorcycle gang. They had a child and agreed that the mother would quit dancing and the father would support the family. Their relationship deteriorated shortly after the child was born."

Things look grim from the outset for Ms. Peterson:

It appears that Ms. Peterson has what can best be described as a less structured parenting style than Mr. Scalisi. For example, Ms. Peterson admits that Brandon sometimes eats potato chips or nachos for breakfast when he is with her. While this may not be the worst parenting sin in the world, it would be preferable if she were to place the same emphasis on a proper breakfast as Mr. Scalisi apparently does. Particularly when Brandon starts school, his nutritional needs will become more and more important. I hope that Ms. Peterson understands the importance of diet in a child's development and that she will ensure that the consumption of potato chips for breakfast is not a regular occurrence.

Despite his apparent commitment to a healthy balanced breakfast, Mr. Scalisi is not without his own questionable childrearing practices. Judge Wildman does a masterful job not calling these people what they are -- an Artie Lange comeback vehicle, coming soon from AMC. It would write itself:

Ms. Peterson says that Mr. Scalisi passes gas in various ways without apology and is resistant to her efforts to discourage Brandon from doing the same thing. She says that Brandon learned the opening words to the theme song of the television show, "The Sopranos", while at his father's home. These words are something to the effect of "I woke up this morning and got myself a gun". Ms. Peterson says that Brandon has referred to her red pants as "Hell's Angels" pants and he has returned from his father's with temporary tattoos of swords and skulls, which are not "happy" or age appropriate. She complains that when Brandon had his hair cut like "George Clooney", Mr. Scalisi referred to the actor as a "fruitcake". She objects to Mr. Scalisi's habit of name-calling, although thankfully it is no longer directed at her.

... [Mr. Scalisi] admits that he does use names such as "Fruitcake" and "Bananahead" but he feels these are appropriate to ensure that Brandon does not get in the habit of using stronger, less acceptable expressions.

So you see, using a mild homophobic slur will teach Brandon that more severe homophobic slurs are improper. I am once more reminded of Three Kings, when Mark Wahlberg and Ice Cube teach Spike Jonze that "dune c---" and "sand n-----" should be foregone in favour of acceptable substitutes like "towel head" and "camel jockey".

Mr. Scalisi counters that Brandon once arrived at his home with a friend's Rob Zombie CD, the liner notes of which contained "violent, sexual and satanic images". Confronted with the CD at trial, Ms. Peterson at first maintains that there is nothing wrong with her son having it ... presumably until her counsel's eyebrows fall off his face and his teeth shatter, whereupon she acknowledges that it might be inappropriate for a young child.

Wildman J. is not overly troubled by the fact that Brandon is still listening to Rob Zombie in 2001, a full three years after Hellbilly Deluxe.² Consider, however, that as of the date of ruling, Brandon was three years old.

Remember from The Sopranos when Ralphie Cifaretto beat that stripper to death in the parking lot? And then Tony and Christopher end up cutting Ralph's head off and burying him in pieces all over rural New Jersey?

Three years old. Anyway.

I can't help but presume that by 2009, young Brandon must resemble Little Larry Sellers from The Big Lebowski.What gives Wildman J. pause is Brandon's mother's part-time employment as an exotic dancer, and her contention that her work "will never affect Brandon as he will never know":

I am not sure that this is a realistic expectation. Ms. Peterson should accept the possibility that her son may learn about her dancing, either through someone in Barrie or through cousins, other family members or friends. It may not be in Brandon's best interests to feel his mother has hidden this aspect of her life from him. While her job certainly does not mean she is a bad mother, there is some social stigma attached to it. It seems to me that the fact that Ms. Peterson chose to hide her employment, first from her parents and now from her son, is a tacit acknowledgment of this. Even if Ms. Peterson really believes that there is nothing improper about her continuing to dance, it would be appropriate for her to have some plan to deal with Brandon's questions should he become aware of her job. Her flat denial that this will ever be an issue concerns me.

Wildman J.'s treatment of Mr. Scalisi's nefarious history with the Outlaws biker gang is worth reproducing in its entirety:

Mr. Scalisi has admitted that he has a problem with some members of the police force and one officer in particular. Mr. Scalisi had his arm broken in an altercation with this officer. Mr. Scalisi was charged but subsequently acquitted of assault involving this officer. He considered pursuing a lawsuit or disciplinary action against him. He elected not to do so as he had some concerns about the likelihood of successfully obtaining relief against a member of the police force.
Despite his experience with this officer, he says he has told Brandon to trust the police and that the police are there to help him. He denies that he told Brandon that the police were the "bad guys". He was frank that, in his view, there are good officers and others who are not as good. He felt that each should be judged individually. However, he seems to understand that Brandon is too young to appreciate this concept and I am satisfied that he is making an effort not to convey his own mixed emotions about the police to his son. I am not satisfied on the evidence before me that there is a concern that Mr. Scalisi will instill any disrespect for the law in Brandon.
Mr. Scalisi has no criminal record. I heard no evidence to suggest that he is racist. He is no longer a member of the Outlaws, he has sold his motorcycle. Although he still knows some of his former club members, I accept that they are not a significant presence in his life now. Ms. Peterson did not really have anything other than her own suspicions to suggest that he might maintain ties with the motorcycle club. She admits that she does not think he is a "patch holder" and she does not really know what he does now.

An unexpected moment of levity (no one is going to accuse Tha Wild Man of not enjoying his work):

Both parents exposed Brandon to the existence of the Outlaws when he was young. Apparently Baby Gap and Baby Roots have not cornered the market on the extension of commercialism to infants. The Outlaws have baby gear available for members' children as well as a stuffed animal, which appears to be a fluffy pig dressed in a Harley Davidson tee shirt and Outlaws hat. Brandon's doting parents got these items for their baby and there were pictures entered into evidence of him as an infant sporting this gear. Whose idea this was is unclear but I am satisfied that both parents participated as there is also a picture of Ms. Peterson at the zoo with Brandon in which she, too, is wearing a "Support your local Outlaws" tee shirt. Thankfully, Mr. Scalisi was apparently required to return all logo items to the Outlaws when he resigned. I doubt that these items would do much to enhance Brandon's attempts to develop friendships with children at school or in the neighbourhood. I am pleased to see that these inappropriate clothes and toys seem to be a thing of the past.

While Wildman J. cautions (with commendable understatement) that Ms. Peterson and Mr. Scalisi would do well to "obtain further information from parenting courses or books" as to what is age-appropriate for their son, ultimately the court is satisfied "that each parent has the ability and the motivation to properly socialize Brandon so that he will not have problems fitting into a school setting." He is confident that Brandon "will not be severely lacking in manners, social skills or moral fibre regardless of which parent is his primary caregiver." Or at least, Brandon won't be more screwed up by being placed with one parent over the other.

We can take a wealth of lessons from Peterson v. Scalisi:

"Soft" slurs are appropriate for a three-year-old but the more serious stuff should be censored until he is nine or ten.
I will watch Three Kings whenever it is on television.
Biker > stripper
If you can't laugh at a former Outlaw biker who got his arm broken in an altercation with police being the good candidate for child custody, well then, you've forgotten why you got into Family Law in the first place.

* * * * *

¹Much like the time he rescued [...one of] two kids trapped in a flooding aqueduct.

²Apparently there is also a 20th Century Masters compilation of Rob Zombie's most seminal works, placing him among the likes of Marvin Gaye, Styx, and the Mamas and the Papas, which, that's really weird.

Don't Mess with Texas: Lessons in U.S. Venue Selection

2009-03-30T21:01:00.008-04:00

Q: Are you a foreign country, looking to sue an American cigarette company to recover the costs of health care for your nicotine-addled citizens? Why not try suing in the Southern District of Texas, in the court of District Judge Samuel B. Kent?
A: 'Cause there's a good chance he's going to burn you for being foreign, with the most withering sarcasm ever committed to a law report:

[G]iven the tremendous number of United States jurisdictions encompassing fascinating and exotic places, the Court can hardly imagine why the Republic of Bolivia elected to file suit in the veritable hinterlands of Brazoria County, Texas. The Court seriously doubts whether Brazoria County has ever seen a live Bolivian ... even on the Discovery Channel.

You hear that, Bolivia? Git yer ass back to whatever part of Mexico you crawled from!

[T]he Court is virtually certain that Bolivia is not within the four counties over which this Court presides, even though the words Bolivia and Brazoria are a lot alike and caused some real, initial confusion until the court conferred with its law clerks. Thus, it is readily apparent, even from an outdated globe such as that possessed by this Court, that Bolivia, a hemisphere away, ain't in south-central Texas, and that, at the very least, the District of Columbia is a more appropriate venue (though Bolivia isn't located there either.)

That'll learn ya. Now don't you show your filthy foreign face in Judge Kent's court again.

The hilarious Judge Kent is presently under indictment for alleged sexual harassment of a court clerk, who is probably not Bolivian.

Republic of Bolivia v. Philip Morris Companies, Inc., 39 F. Supp. 2d 1008 (S.D. Tex. 1999).

Eff

2009-03-25T09:19:00.002-04:00