Cornell Case a Good Case Study in Written Advocacy
Cromwell J. and Fish J. put on a solid display of written advocacy in today’s Supreme Court of Canada decision in R. v. Cornell.
A 4-3 majority held that the Calgary Police Service did not violate section 8 of the Charter by the manner in which it conducted a “dynamic” or “no-knock entry” search of an accused person’s home. The appeal was made as of right, and caused the justices to answer a question of mixed law and fact based on a very physical fact scenario. This set up a clash of language used by the majority (in a judgement written by Cromwell J.) and minority (in a judgement written by Fish J.) that deserves to be highlighted, starting with each side’s opening.
Here is how each judge described the key events of the search.
The juxtaposition illuminates the techniques each judge employs. Justice Cromwell uses the passive voice and Justice Fish uses the active. Justice Cromwell tends to the abstract while Justice Fish uses detail. Justice Cromwell doesn’t use the victim’s name, while Justice Fish calls him “Robert”.
Comments welcome either on the matter of advocacy or the subject matter of the judgement itself.
Very interesting comparison. Reminds me of reading Lord Denning’s judgements. You could always tell who was going to win from the first paragraph.
I have always found that discussions of violations of Charter rights (particularly in a criminal context) turn particularly on whether you can put yourself in the accused’s shoes or not. Everything seems reasonable if it only happens to hardened criminals.