The Judge’s Tale

The literary bug has bitten our courts again, this time infecting the writing hand of Fergus O’Donnell of the Ontario Court of Justice. I came across his judgment in R v. Duncan (2013.03.26), since featured in the Toronto Star, in an ethics email list I belong to, where it came in for a lot of interesting criticism. (It’s not yet reported but a PDF copy is available on Slaw.) In the opinion Justice O’Donnell adopted a casual style that owes something to the mystery genre, as well as a good dose of the sardonic approach taken to the ideas of certain self-represented litigants in the oddly popular Meads decision.

The opening paragraphs will give you an idea of the first flavour I mentioned:

1. “You should get out of town”, the man said.

2. And so began the journey that resulted in my path intersecting with Matthew Duncan’s path. And thence to these reasons, with a slight detour through territory that might have confused Lewis Carroll.

3. I suppose that I should clarify that there was no menace in the man’s directive to me to get out of town. He was a friend and a colleague in two careers. His suggestion had been that he and I should change positions for a fortnight, giving him exposure to the realities of the northern reaches of Toronto, while I would enjoy a similar change of environment in the more sylvan environs of Niagara Region. I might even see a few plays in the evenings, he pointed out.

4. And thus I came to meet Mr. Duncan.

The defendant seems to have made use of some of the material provided on the internet by “freemen on the land” and other groups identified in the Meads judgment, causing Justice O’Donnell’s scorn and irritation to find outlet in the judgment. The quoted passage below is representative:

19. We did not finish Mr. Duncan’s trial on the first day. As I left court that day and contemplated returning in the autumn to finish the trial, it occurred to me that I would have to write rather a lot to address the various procedural issues raised by Mr. Duncan in his tome and his verbal arguments. Now, don’t get me wrong about this; I’d be happy to write until the cows came home about matters of substance relating to the guilt or innocence of the defendant and the liberty interests of a citizen vis a vis the constabulary, but the idea of having to disentangle all of the palaver, nonsense and gobbledygook in the document Mr. Duncan presented to me was not particularly appealing.

20. There is an ancient proverb to the effect that “those whom the gods would destroy, they first make mad”. The prospect of disentangling Mr. Duncan’s adopted argument and his volume of internet-derived gibberish made me wonder if, for some reason, the gods had me in their cross-hairs. This concern, however, was dissipated in mid-September, 2012 when the gods made their benevolent nature clear.

The reference is to the release of the Meads judgment on September 18, 2012, which, the court said,

. . . wonderfully frees me from having to address any more effort to the jurisdictional arguments raised by Mr. Duncan. As I have said, there is a lot of patent rubbish on the internet; if Mr. Duncan wishes to while away a few hours more productively on something that actually makes sense, I commend Justice Rooke’s judgment on to him.

22. There is no merit to Mr. Duncan’s jurisdictional argument. Such arguments are a waste of the court’s time and resources, a selfish and/or unthinking act of disrespect to other litigants and deserving of no further attention, energy or comment.

Ultimately, the court acquitted the defendant because of serious deficiencies in law in the Crown’s case. (Worth reading in order to learn the law about using your turn signal when driving.)

The judgment was severely criticized by some members of the email list as effectively disrepespecting Mr. Duncan, partly because of its semi-jocular tone and partly because of the scathing language directed at Mr. Duncan’s argument, likely to be seen as therefore belittling the person making the argument. A strong sentiment was expressed that judges should refrain from anything other than careful civility, respectful both in tone and content — all the moreso where the litigant is self-represented.

One criticism that particularly interested me had to do with the intersection of fiction writing and judging, making the point, among others, that authors who write fiction know the lives of their characters intimately and in great detail because they plan them, and it is wrong — presumptuous — for a judge to give the impression by adopting a fiction genre style that he knows a litigant as thoroughly. Having written fiction and having talked to a good many writers, I’d say that this is not quite right on the facts, though it is right in its conclusion.

Writers quite often have no idea who their characters are or will be and must write on in order to find out. So it’s not necessarily the factual knowledge per se that distinguishes them from judges. It’s the power. Simply put, a writer of fiction is god-like — which is one of the charms of the practice. The writer can call into being whatever creature is imagined, whatever setting is envisaged, whatever behaviour in the characters is dreamed up. (Yes, there are conventions and strictures imposed by the culture, but even small-g gods are constrained by these. Just ask any of the Olympians.) The presumption — and the motivation, I’d guess — of judicial Joyce wannabes then becomes clear: they’re dressing up in a deity’s magic cloak (which writers should only wear in the privacy of their garrets, by the way) instead of their usual “dull sublunary” fustian.

Of course, the common law, in its use of exemplars, i.e. stories with morals to be drawn from them, has always run close to fiction, which once was also meant to teach morally uplifting lessons. Judgments are full of facts that are not strictly relevant or even material. In an important sense not even the names of the parties are relevant. Knowing where to draw the line is important, and judges must often be tempted to stray from their field to greener fictional grass in the next meadow; but, as a playwright once said Quod licet iovi, non licet bovi, which, in this case may be roughly translated as “Hey, judge, get off the grass!”


  1. Nobody on the ethics lists mentioned that the judge ought to have referred to Finnegans Wake rather than Ulysses?

    That aside, if we assume that the Crown attorney put in the Crown’s best case, then the reasons say nothing good about every Crown who handled the file. Remarkably, the bromide about knowing the applicable law that one practises on a daily basis applies to lawyers, too; even more so when one’s duty is supposed to be to see that justice is done, not that one’s side wins.

    The deficiencies in the case that were obvious to the judge ought to have been obvious to the Crown long before the case got to trial. So, if we’re going to point fingers at who ought to be blamed for wasting the court time and resources, let’s start with the police and the Crown.

  2. Two thoughts:

    1. anyone who has done a bit of criminal defence work has no doubt worked with police who lay charges based on what they think the law is or should be, not what it says

    2. I’m sure wherever this guy is, he’s considering an appeal because (even though he won) he was prevented from telling his side of the story

  3. Mike,

    The charge was of a Criminal Code offence: assault. The police dep’t involved probably did law the charge, with or without consulting local Crown lawyers. But, after that, the Crown decided whether proceed with the prosecution or drop the charges.

    The case didn’t have to go to trial. Based on what the trial judge wrote, it should never have.

    If we assume the Crown’s lawyer put in the Crown’s best case, then there was nothing the trial judge said that the Crown lawyer(s) shouldn’t have spotted as soon as the file showed up on the desk of the first lawyer who had the file. Given that the alleged offence was assaulting a police officer, I suspect the file was seen by more than just the most inexperienced of the lawyer(s) in the local Crown office.

    Mr. Duncan, for all his other issues, was entitled to expect the Crown lawyer(s) would see the problems the judge saw in the evidence, long before the case got to trial. He got justice from the judge. He didn’t from the Crown.

    It’s worth asking why the judge didn’t lambast the Crown. Reading between the lines of the reasons, the judge had major problems with the evidence of the two officers on the assault.

  4. I know the charge was assault. My point is that there’s nothing surprising about police officers who consider the exact wording of the statute (in this case, the requiement to signal a lane change) to be only mildly relevant to what they want to charge.

    You’re right that it would have been nice if the Crown had caught it, but I can think of many instances in which acquittals were obtained (without having to put on a defence) after the Crown put in its case according to what it wished or thought the law was.

  5. Mike,

    We seem to be talking at cross-purposes.

    It’s more than a matter of “it would have been nice”. We’re talking about the Crown’s duty, especially in criminal cases, especially where the defendant is unrepresented.

    Again, my point was that the charge should never have reached trial, if the evidence led was the Crown’s best case. The Crown lawyers ought to have known that. Perhaps they did. Perhaps somebody said something to a superior but was told to proceed regardless.

    Or, perhaps not.