“I will ask for the mercy you love to decline”
Scene: The Supreme Moot Court, a steeply raked lecture hall after hours. 4 gowned students seated at the fore, clutching speaking notes. A singled gowned judge sits several rows up, complete book of authorities open before him.
Case: On appeal from the Ontario Court of Appeal: Judgement of Justice Laskin (R. v. Grant (2006), 209 C.C.C. (3d) 250, 81 O.R. (3d) 1 (C.A.)).
First co-counsel for the Appellant
“Good evening…”
“Let me stop you right there. If you had been so familiar with Madam Justice Southin I can assure you she would have been alarmed.”
Thereafter follows 45 minutes non-stop questioning, 15 minutes more than allotted, as no one had been watching the time.
Second co-counsel for Appellant
“What if the evidence you seek to exclude under s. 24(2) of the Charter hadn’t been a gun? What if had been a baby’s head in a plastic bag? And let me tell you, you will get baby head cases.
First co-counsel for the Respondent
“The Crown further submits that there was no detention as…”
“Just concede that point. You’re not going to win.”
Second co-counsel for the Respondent, our hero
“…appellant has failed to meet their burden under s. 24(2)…again, failed to meet their burden…burden…however, the full quote reads…burden…
...
Those are my submissions. Are there any questions?”
“Would it have been different had it not been a gun? Perhaps, as in your example, a single counterfeit bill?”
“The first two elements of the Collins test, the impact on trial fairness of admission, and the seriousness of the putative breach would be the same, so any difference would centre on the third factor: the direct effects on the repute of the administration of justice of exclusion. In Toronto, today, yes.”
“Thank you counsel. Court is adjourned
...
so what do you really think…will happen at the Supreme Court?”
March 30th, 2008 at 3:02 pm
My co-counsel had a similar experience to your co-counsel. Her job was to talk about how the trial judge had failed to alleviate prejudice with two sentences in her jury charge.
“Fortunately, no bloodbath occurred here, so don’t focus on that possibility. Finally, I want you to apply the law and not t-shirt slogans.”
Her argument was that absent of any other significant charge, all this did was remind the jury of inflammatory rhetoric of the Crown and individuals in the courtroom. Regarding the second sentence, the judge just stopped her and was like, “Really, I don’t see how this be any more clear in alleviating prejudice. DON’T focus on t-shirt slogans.” When she started to repeat her argument, Mr. Justice G. just stopped her and told her to give up much as happened to your co-counsel. On the second issue, she focused on the repetition of the word bloodbath. After five minutes of arguments on this, Mr. Justice G. sits there, thinks for a sec and goes, “Okay, I’m not convinced, BUT the word ‘fortunately’ is problematic because…”
It was like he made a third oral argument.