Victim of Formality

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?”

Pusey v. Pusey (1684), 1 Vern. 273, 23 E.R. 465

Land held by the tenure of a horn. Bill brought by the heir for the horn.

Bill was, that a horn, which time out of mind had gone along with the plaintiff’s estate, and was delivered to his ancestors in ancient time to hold their land by, might be delivered to him; upon which horn was this inscription, *viz. pecote this horn to hold huy thy land.

The defendant answered as to part, and demurred as to other part; and the demurrer was that the plaintiff did not by his bill pretend to be intitled to this horn, either as executor or devisee; nor had he in his bill charged it to be an heir loome.

The demurrer was over-ruled, because the defendant had not fully answered all the particular charges in the bill, and was ordered to pay costs. And the Lord Keeper was of opinion, that if the land was held by the tenure of horn, or cornage, the heir would be well intitled to the horn at law.

“huy” doesn’t make much sense. Probably a typo for “buy”.

See here for a picture of the horn. The full inscription supposedly reads:

I kynge knowde [Cnut] gave Wyllyam Pecote [Pusey, mistranscribed] thys horne to holde by thy land.

Historically, the (eldest male) heir would get the real property, and the widow would get the personal property (chattels). But if you hold the land by virtue of possessing a chattel, what happens then? Apparently the heir gets it, not that the Lord Keeper presented much reasoning.

See also J.H.D., "Pecote": A Bit of Legal Archaeology (1913) 11 Mich. L.R. 506, which claims that Pecote means “bequeath”.

Supposedly this is an important case, showing you can sue in equity for items of “unique value”. I happened to come across it while doing some busy work for the Law Review (yes, people still cite things from the 1690s). The author of the little comment in the Michigan Law Review notes that one scholar thought that an estate holder in cornage was required to blow the horn to warn of impending attack, although another commentator described that explanation as an “idle tale”.

You are the Honourable Madam Justice Louise Arbour. (88.8% match)

Born: 1947, Montréal, Québec
Appointed: 1999
Key word: “details”

Your decisions on our sample cases indicate that you pay close attention to the fundamental rules of the Charter and other Constitutional documents of Canada. Sample opinions you wrote reflect keen attention to details and legal specifics, in cases like Malmo-Levine and Caine (marijuana) and CFCYL (corporal punishment).

Which Canadian Supreme Court Justice are you? v0.1 by mskala

Notwithstanding the fact that Justice Arbour is no longer on the Court, I suppose this makes sense.

Schuster v. Blackcomb Skiing Enterprises Ltd. Partnership, [1994] B.C.J. No. 2602, [1995] 3 W.W.R. 443, 100 B.C.L.R. (2d) 298 (BCSC)

¶ 1 HALL J.: This is a case that arises out of a skiing accident that occurred on December 23, 1992 at Blackcomb Mountain. The defendant now applies under to the provisions of Rule 18A for an order that the action against it be dismissed on the basis that the plaintiff is not able to successfully maintain this suit because of a waiver document that she signed a short time prior to taking part in a ski programme called Ski Esprit at Blackcomb Mountain.

…

¶ 11 After the advent of the railway, we find that most of the cases after the middle of the 19th century typically deal with railroad passengers. An example is Van Toll v. Southeastern Railway Company (1862), 31 L.J.C.P. (N.S.) 241, wherein the defendant was successful in upholding a waiver clause. In that case, the plaintiff traveller had deposited a bag containing apparel and jewelry in a cloakroom at the railroad office and had received a ticket. In addition to the writing on the ticket there was also a prominent sign situate in the cloakroom where she had checked the items. So because the plaintiff had adequate notice, she was bound by the waiver. Not along after came the case of Harris v. Great Western Railway Companyk (1876), 1 Q.B.D. 515. There, the railway passenger who had deposited luggage with a clerk at the defendant’s cloakroom and received a ticket with limiting conditions was also held to be bound by the notice limiting liability.

¶ 12 In the next year was decided the case of Parker v. Southeastern Railway Company (1877), 2 C.P.D. 416, a case that is often quoted and that is usually considered to be a leading case in this area. That case settled the law in that it provided that a defendant who sought to rely on a waiver or exemption clause was obliged to do what was reasonably necessary to give to a customer adequate notice of conditions limiting liability if a defendant was to successfully to rely on such as a defence to an action for loss of goods entrusted to it. Again, this case resulted from the deposit of goods in a cloakroom at a railway station. From the proliferation of cases involving the Southeastern Railway Company in that era, one is constrained to think that they either ran a rather insecure cloakroom system or else thieves were uncommonly active at the time.

Re Manitoba Language Rights, [1985] 1 S.C.R. 721

The Governor-in-Council asked if we
could rule on questions of no small import.
One way, and Winnipeg’s in anarchy,
the other, and Lévesque’ll surely snort.

The Manitoba Act requires that
its legislature publish laws in French.
Yet for one hundred years they’ve excelled at
ignoring confirmations from the bench.

In Blaikie, this Court likewise bound Quebec,
thus Manitoba’s laws are not legit.
And yet the “Rule of Law” will stop this wreck,
enjoining time to translate, per our writ.

We’ve wondered what that term meant, now we know:
enforcement of a stop-gap status quo

Being a yuppie is hard. I had to jump out of the shower this afternoon to catch the UPS guy, a day later than promised, delivering my suit. It wasn’t entirely his fault, as whoever in Shanghai wrote the commercial invoice put down West Vancouver, as opposed to nth Avenue West, Vancouver. (They also claimed the suit was a sample worth $45 dollars, but that’s what happens when duty’s included). It didn’t turn out as badly as I’d feared, but it’s not a masterpiece by any means. In the great tradition of Chinese tailoring the sleeves were an inch and a half longer than I’d hoped for, and so I made the familiar walk over to my own tailor to persuade him to shorten them (we’re cool, he’s used to it by now).

The bigger problem was that, at this level of customization, there’s just no getting around my disproportionately square (and apparently mildly uneven!) shoulders, and so there was slight bumpiness across the yoke. It wouldn’t have been as noticeable but for the unexpectedly tropical-weight wool (who knew that’s what they meant by “thread count”?) I could have returned it, but I honestly just needed something to wear to all these career centre events apart from that old Eaton’s suit I got in Kensington with Josh (and yes, apropos of your postcard, I did get your Temple of the Golden Pavillion reference). When those lead to a job, then I can get something fancy.

While I was out I also dropped a good $130 at the cobbler’s. Got a mild scolding (I assume—It was in, I think, Cantonese) for not coming to them sooner. Given Vancouver’s weather I don’t think they really need the extra work.

Anyway, the real reason I’m writing is, natürlich, to get my mind off studying. Closely related to the travails of yuppiedom, Law School is also hard, or at least not easy. My first exam, Constitutional Law, was on Monday. Four normative essay questions, open book, 1 hour. I felt confident going in, to the point of annoying my fellow students with trivia (quick: where did Abel teach?) and I think I did moderately well, but you better believe I had pen to paper for 95% of the time allotted. It’s not like undergrad humanities, where they give you 2 hours to do a question which, for a top student, would take an hour, and which to physically write would take 45 minutes. Open book is also a misnomer, because if you’re looking at your textbook you’re doing it wrong. Much better to condense everything you have and to occasionally refer to those notes to make sure you haven’t missed/mixed a key point (are we talking about Bell #1 or Bell #2?)

Tomorrow I have Criminal Law. The fun part about that one is we don’t really know much criminal law yet: our exam will assume the accused are found guilty, and we’ll have to sentence them. I’m struggling to see how more than 10-15pp of our 400pp of assigned reading so far is directly relevant to the task. The bulk of it was designed to knock us out of our assumedly white, assumedly middle class complacency, and expose the shocking over-representation of aboriginal Canadians in all areas of the criminal justice system. Of course, one element of complacency is that you don’t necessarily think too much about the matter at hand, so as we’ve all become at least tangentially exposed to details like what constitutes a “major” versus a “regular” sexual assault, students are polarizing as to the merits of overarching themes like restorative justice, and more specific programs like daycares in prison—and not necessarily in the direction intended. I guess all the Professor can hope for is that more end up on his side than would otherwise, and it’s probably fair to say that those most resentful of his relentless campaign were never his to win. For my part, I’ll just say that, Rosie Dimanno notwithstanding, if the Toronto Star is a fair measure of my middle class complacency (and after some experience consuming Vancouver media I think it is) then I don’t think the Prof. ever had to worry about me.

Come December 20th I’m looking forward to sitting back in la Ville Reine, drinking some Creemore, and reading that Walrus I bought the other day at Caper’s out of pity. Or, finishing that Virgil I got in the bargain bin at Chapter’s. Or, maybe, to further cement my Canadian middle class credentials… first edition!

There are of course two major reasons given for why one is in law school:

1. “I didn’t know what else to do with my degree… took the LSAT… why not?… certainly beats working.”
2. “I have a science background and am highly interested in intellectual-property law.”

The first answer, by far the more common, implies a lot about the probable background of the speaker. It takes a certain amount of effort on [some]one’s part in order to be so whimsical. The ritualized mutual interrogation which served to pass the drunken hours between first-week classes bore this out.

“You’re from where? Is that the [fancy] neighbourhood overlooking C.O.P.?”
“No, you’re thinking of S’s. I’m from the other one.”

For my part, whatever ease is to be gained by being amongst one’s intellectual equals (at least until the marks come in) is tempered by the constant awareness that they are, for the most part, and in a broad sense, at least one’s social equals.

I suppose my latest attack of bourgeois class consciousness (pace Lukács, on several counts) was primed by my trip to Winnipeg at the end of summer. As I get older, I appreciate how much I am the product of my wider family—I guess all those educational toys worked. Anyway, palavering over some boxed white with my grandmother we discussed her reading list:

1. The Winnipeg Free Press
2. The Globe and Mail
3. The National Post (“But only because the Aspers have been so kind to the city.”)
4. The Economist
5. The New Yorker
6. The Guardian Weekly (which, as you know, reprints some content from Le Monde)
7. The New York Times online, specifically for the TimesSelect columnists (“But not for Friedman!”)

Throw in some Lewis Lapham, a sprinkling of Marxist book critics, and substitute lemonde.fr for the paper Guardian and I’m not far off. We also covered our respective disappointment with The Walrus, later rehashed with Tina. (Perhaps it would be apropos to mention that, in Toronto, after I had poked fun at the whole idea of a Walrus Arctic Expedition my aunt informed me she’d already signed up?) Later on that week another aunt arrived from Germany, by way of Montréal, and we spent some time trying to figure out the pronunciation of the Economist’s British-affairs column.

But back to Law School. As I’ve come to appreciate since the first week, a common set of referents, and The Economist serves as well as anything else, certainly has its advantages. Passing the time, for one thing (after we had spent a class watching 2/3 of A Beautiful Mind, even before they started complaining that we’d spent a class watching a Ron Howard film, people felt the need to hold forth on Nash equillibria). Intuitively knowing my audience may also be one reason I’ve been able to cultivate a reputation as a class clown (though it’s probably just as much down to technical skill, as evinced by my in-class comment on the lingering presence of the community standards test with respect to consent to “deviant” sexual practices: “It’s hard to apply a harm-based test when there’s a whip involved.”)

Unfortunately, it’s not all Game Theory, Mozart, and “les scènes élevées en grec.” There’s also money, sexism, and certain lack of self-awareness that a more parochial student might attribute to those who haven’t had the benefit of extended inculcation in the lesser psychoanalysts (when I went to a Centre for Feminist Legal Studies talk I had to explain the Feminist to someone).

Humour actually provides a good example of the problems. Friday was the Guile debate, wherein law students, beers in hand, fill the auditorium and cheer on their colleagues in attempting to prove some proposition: in this case, “be it resolved Justice is blind.” I need only remind you that Justice is oft depicted as a topless woman wearing a blindfold to adumbrate the course of the next 2 hours. The high point was when A. stood up and, in so many words, said she wasn’t going to tell dick jokes, and that this whole exercise was patriarchal and problematic. The low point was when a drunken speaker handed the microphone to a homeless man collecting empties, who then, to entirely dissociated cheers, urged the students present to work toward the betterment of those less fortunate.

I don’t mean to suggest there aren’t good people here. I just wonder about their ability to effect change given the properly de-politicizing strictures of “professionalism”. I wonder what long term effects our ineluctable camaraderie will have when applied to an already homogenous group. And, concomitantly, I wonder what I’ll be like in a couple years after I’ve completed what, more every day, seems less like an academic institution and more like a finishing school (except you’re expected to take French after hours). Would I be willing to use the word “patriarchal” in front of 300 drunk students?

Then again, maybe the above is just an overreaction. Maybe, I thought to myself back in first week, overhearing the genuinely academic conversation of the nearby grad students, law school is about more than just consolidating one’s position in society. Maybe I was not simply taking up my appointed position as a scion of the State Nobility. Or, if so (as that’s an awfully hard thing to disprove), maybe I can be said to like law in some meaningfully independent sense. And so what if my friend is dating someone from JRR/Glenview/LP? We’re good people. And so what if my acquaintances’ tastes have shifted from veggie subs to lobster fresh off the plane? Isn’t that just getting older? It’s not like this is some sort of vast, well-shod, conspiracy.

So I tried not to think about it, as I waited for the first of many free burgers, and the imminent arrival of my 2nd year buddy…

“Wait a minute… weren’t you the Bishop of UAAC?”

The Law Society of British Columbia
In the matter of the Legal Profession Act, SBC 1998, c.9
and a hearing concerning

Dean Thomas

Respondent

Decision of the Hearing Panel
on Facts, Verdict and Penalty

Under the Act this panel did convene
to rule whether your conduct can be found
unbecoming—if so, can we be mean?
I’m sure, upon review, we’ll find some ground.

To save the trees you lay across the road,
the injunction in place you thought unfair!
When called, your principles you should have stowed
in favour of your duty to be square.

Re: Ogilve we’ll go, and for some time,
through eight factors to reach a penalty.
You’re young, upright, but still admit no crime?
Dissent does not befit the bourgeoisie.

It’s not just jobs but benchers who will treat
your drunken Facebook pics too indiscreet

Gilbert Steel Ltd. v. University Const. Ltd.
(1976), 12 O.R. (2d) 19, 67 D.L.R. (3d) 606 (C.A.)

Both A and R had orally agreed
to change the contract price A billed for steel.
But when the bill came R would not concede
the obligation owed to A was real.

“Consideration wants: he cannot sue.
I promised much—in what way has he paid?”
“But surely, A replied, I lost my due
under the first when second contract made.”

“‘Tis clever, said the judge, but you had pled
you understood the contract was the same.
You could but gain! Be fair? I’m sure you’ve read
estoppel’s a defence, but not a claim.”

A change in terms, and cost’s negotiable,
needs quid pro quo to be enforceable

We got our first assignments back about 15 minutes ago, and some were disappointed.

“So basically the TA’s saying that we should keep our case briefs simple.”
“Not in iambic pentameter then?”
“Well…”

Household Fire & Carriage Accident Insurance Co. v. Grant
(1879), 4 Ex. D. 216 (C.A.)

The Court declared the post office should be
An agent of the contracting parties.
And if acceptance there deposited,
The contract is then formed, and not when read.