Watt’s the Matter?

The Globe and Mail reported today that there’s some dissatisfaction with the way Ontario Court of Appeal Justice David Watt has written a few of his judgments. According to the story by Kirk Makin, “some traditionalists” are upset because the judge has imitated novelists, which, according to some critics, might be okay if you’re Lord Denning judging contract disputes but not where criminal law is concerned.

Makin quotes from a few of Justice Watt’s opinions, including, for example, R. v. Yumnu, 2010 ONCA 637:

[1] Tung Duong and Dung Ton fell out over money owed and product misappropriated in their business ventures in drugs, prostitution and money-lending.

[2] Duong decided that he wanted Ton dead. Killed, along with Ton’s wife, Bon Bui, if they were together. Arrangements were necessary. Money to finance the job. A killer or two to carry it out. A weapon. A place away from public view. An escape plan.

The thing is, that’s all there is — in that case, at least. Just the opening à la Denning. After that it gets pretty much standard and less than gripping:

[80] To demonstrate an impairment of the right to make full answer and defence as a result of a default or delay in disclosure, an appellant must establish a reasonable possibility that the delayed or failed disclosure affected the outcome at trial or the overall fairness of the trial process: Dixon at para. 34; Stinchcombe at p. 348; R. v. C. (M. H.), 1991 CanLII 94 (S.C.C.), [1991] 1 S.C.R. 763, at p. 776. The reasonable possibility that the appellant is required to demonstrate must not be entirely speculative, rather must be grounded on reasonably possible uses of the non-disclosed evidence, or reasonably possible avenues of investigation that were closed to the appellant as the result of the default or delay in disclosure: Dixon at para. 34.

That seems to be a pattern in the few cases in which Justice Watt has gone “noir” — a paragraph or two at the opening done in crime novel style, then on to dry legalese for the rest of the judgment. See, e.g., R. v. Flores, 2011 ONCA 155, R. v. Luciano, 2011 ONCA 89, Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13. But Justice Watt is perfectly capable of starting out ordinary, as these two recent cases show: R. v. Levkovic, 2010 ONCA 830, United States of America v. Michaelov, 2010 ONCA 819.

Tempest in a teacup.

Comments

  1. Lord Denning and Justice Watt are not the only judges to use literary styles to open their judgment. Here is Justice Cory in R. v. Horseman:

    In the spring of 1983 the appellant went moose hunting in the territory north of his Reserve in order to feed himself and his family. This he was entitled to do pursuant to the provisions of Treaty No. 8. He was successful in his hunt. He shot a moose, cut it and skinned it. The moose was too large for the appellant to bring back to the Reserve. He therefore hurried home to obtain the assistance of other Band members to haul it out of the bush. When they arrived at the carcass the appellant and his friends were unpleasantly surprised to find that a grizzly bear had appropriated the moose. The arrival of the appellant was even more unpleasant and upsetting for the bear, which by this time clearly believed it had acquired a valid possessory title to the moose. Faced with the conflicting claim, the bear charged the appellant. Bert Horseman displayed cool courage and skill under attack. He shot and killed the bear, skinned it and took the hide.

    A scant few years ago the appellant no doubt would have been congratulated for his display of skill and courage and indeed his survival in dangerous and desperate circumstances. However, life in our time is not so simple and trouble of a different sort than charging grizzlies was looming on the horizon for the appellant. Horseman did not have a licence under the Wildlife Act to hunt grizzly bears or sell their hides. This omission ordinarily could be readily excused for neither the presence of the bear nor its attack could have been foreseen.

    One year later, in the spring of 1984, the appellant found himself in the unfortunate position of being out of work and in need of money to support his family. In these straitened circumstances he decided to sell the grizzly hide. On or about April 19th he applied for and was issued a grizzly bear licence under s. 18 of the Wildlife Act. This licence entitled him to hunt and kill one bear and sell the hide to a licensed dealer as provided by the regulations passed pursuant to that Act. The appellant made use of this licence to sell the hide of his adversary of the year before to a licensed dealer for a price of $200. This isolated sale, which was clearly not part of any organized commercial transaction, took place between April 19th and May 22nd.

  2. Litigation is about some person’s story, whether that litigation is in a civil or criminal context. Personally, I think that relaying a portion of a decision in a storytelling style is an effective tool for future readers. It reminds readers that law takes place in a social, temporal, political, economic, and cultural context. Written judgments are intended to be read. I see nothing wrong with a portion of them being readable.

  3. Personally, I like it. He’s not sensationalizing, he’s making it more readable.

  4. Omar – you’re right. The “problem” – scare quotes usage – with making judgments more readable is that that this tends to demystify the legal profession. (Also, it’s hard to hide the intellectual tap-dancing that is sometimes necesary, because law is not coherent across its breath.] Some people seem to believe that if we allow too much transparency, well, before you know it, not only will our “junk” be exposed but some people will get the idea that lawyers are no better than, say, politicians. After that? The deluge, of course.

    One funny thing about all of this is that Watt is being criticized for not writing like (some) professors write. And for also not writing like too many lawyers write.

  5. R v Horseman is an unusual case.

    A 4-3 majority of the SCC nonetheless upheld Mr. Horseman’s conviction of unlawfully trafficking in wildlife; that is, unlawfully selling the grizzly pelt. Justice Cory wrote the majority judgment.

    R v Horseman is an unusual case.

    The dissent, written by Wilson J, put the moral and legal question starkly:

    While my colleague has reviewed the facts of this appeal and the decisions of the lower courts, I believe it is important to emphasize that all parties were agreed and the trial judge so found that Mr. Horseman was legitimately engaged in hunting moose for his own use in the Treaty 8 area when he killed the bear in self-defence. Mr. Horseman did not kill the bear with a view to selling its hide although he was eventually driven to do so a year later in order to feed himself and his family. The sale of the bear hide was an isolated act and not part of any planned commercial activity. None of this is in dispute.

    The narrow question before us in this appeal then is whether the isolated sale for food of a bear hide obtained by the appellant fortuitously as the result of an act of self-defence is something that the government of Alberta is entitled to penalize under the Wildlife Act.

    Justice Wilson latter added:

    The learned trial judge found as a fact that the appellant killed the bear in self-defence and not with a view to selling, exchanging or bartering its hide. It is difficult therefore to describe Mr. Horseman’s act as hunting for commerce or sport. Indeed, it is difficult to describe Mr. Horseman’s act as “hunting” at all. It would be passing strange if the government of Canada in enacting the Transfer Agreement of 1930 intended to put Treaty 8 Indians in the absurd position of being penalized for defending themselves against attack by wild animals. Nor, with respect, can I accept my colleague’s suggestion that Parliament believed that if Treaty 8 Indians were exempted from provincial regulations if they killed an animal in self-defence, they would try to circumvent such regulations by making duplicitous claims to this effect.

    The real question, it seems to me, is what the local authorities motive was in filing charges against Mr. Horseman. Perhaps there was a problem in unlawful trafficking in bear and other wildlife hides – i.e. killing them, too – and a decision was made to make an example of Mr. Horseman. Perhaps he was involved in that “trade” and this incident gave the the Crown the opportunity it wouldn’t have otherwise had. If Mr. Horseman was involved in that sort of illegality on other occasions, he was very careful on this occasion to attempt to protect himself. He bought a licence that would have allowed him to sell the hide, had he killed the bear after he bought the licence.

    Perhaps the the majority wondered why the charges were laid, too, but ducked the question since that was, formally, irrelevant to the constitutional that the Court had to decide.

    There can be no doubt of the financial needs of the appellant nor of his good faith. He certainly made efforts to stay within the spirit of the law. Nevertheless, an information was laid against him in July of 1984 charging him with trafficking in wildlife.

    This is what the majority said was the issue:

    The sole defence raised on behalf of Horseman was that the Wildlife Act did not apply to him and that he was within his Treaty 8 rights when he sold the bear hide. Nothing is to turn on the killing of the bear in self-defence. Nor is it argued that Horseman was induced into a mistake of the law by the words of an official of the Government. Rather, it is the appellant’s position that he can, at any time, on Crown lands or on lands to which Indians have access, kill a grizzly bear for food. Further, it is said that he can sell the hide of any grizzly bear he kills in order to buy food. [emphasis added]

    The majority added:

    The fact that a grizzly bear was killed by the appellant in self-defence must engender admiration and sympathy, but it is unfortunately not relevant to a consideration of whether there has been a breach of s. 42 of the Wildlife Act. Obviously if it were permissible to traffic in hides of grizzly bears that were killed in self-defence, then the numbers of bears slain in self-defence could be expected to increase dramatically. Unfortunate as it may be in this case, the prohibition against trafficking in bear hides without a licence cannot admit of any exceptions.

    One wonders – well, I wonder – if the emphasized words indicate that Mr. Horseman and his constituency decided to fight the case on the broader grounds and lost. If that’s the case, then, a person “thinking like a lawyer” and borrowing from Shakespeare might say that Mr. Horseman found himself hoist with his own petard.

    On the other hand, given that everybody accepted that Mr. Horsemean had acted in good faith, a non-lawyer, borrowing from Dickens, would probably say that the law was “a ass”.

    Justice Watt is part of the effort to show that, in most cases, the law is not “a ass”. A judge of the House of Lords wrote, a bit more than a decade ago, that in the case the judges were deciding the were involved in “a practical attempt, under adverse conditions, to preserve the general perception of the law as system of rules which is fair” (White v. Chief Constable of South Yorkshire Police [1998] UKHL 45, [1999] 2 A.C. 455 at 511.) That, too, I’m sure, is part of what Justice Watt has in mind. He deserves support.