Will McNair

seldom updates the following sites

Posts

February 02, 02:57 PM
Fucidin (tm)
There's no good way to tell a pair of cute nurses that the antibiotic cream they probably saw in your bathroom while they were visiting to watch The Lion King in 3D is for the moles you had removed two weeks ago, and not treatment for some sort of weird rash or something equally icky and potentially transmittable.

There's the chance that they didn't notice anyway, but the odds of that are pretty low. That tube could not have been more front and center, and you noticed far too late. On the one hand, they're nurses, so they're probably fully aware of the myriad uses for antibiotic cream. On the other hand, they're probably also aware of uses which involve horrifying diseases that you don't even know about. And bringing it up later, say, in some sort of offhand and charming tweet, well, thou doth protest too much.

Oh, and it doesn't help that the name of the stuff sounds like the answer to the question "how do you get a venereal disease?"


January 24, 10:33 PM
Markian Assangerberg, Billionaire Info Terrorist
January 17, 04:14 PM
Hierarchy of Wrong
People are always doing terrible things. They're not necessarily terrible people; sometimes they believe themselves to be in the right. Lawyers exist because sometimes it turns out the not-terrible people were right about being in the right. (You did some terrible things earlier today and you didn't spare a thought for whether you were in the right -- I saw you and so did your God.)

But how to explain all the rioting this year? And, more importantly, what of the theft of my bike last weekend?

Hierarchy of wrongdoing:
  1. things that are not wrong
  2. things that are not wrong if done for the right reasons (I know there's an age gap, but she's eighteen and I love her!)
  3. things that are clearly wrong but about which one has no choice (if I don't steal this loaf of bread I'll die, and later Jafar will marry Princess Jasmine!)
  4. things that might not seem wrong if done for the right reasons but actually are still wrong regardless (you don't understand! she's a really mature fourteen! and I love her!)
  5. things that are just wrong
Sometimes rioting could fall into Category Three. If one lives under a tryrannical government, for instance, and foments a popular uprising. People will get hurt in the revolution, but lives will be saved when the thought police are disbanded. Ensure that nobody gets hurt, and maybe you can even keep it in the second category! But if you're running around indiscriminately killing shopkeepers in the name of the revolution, it's down to Category Four with you. Your cause is still just, but you're not.

And if you're just burning down hundred year old shops throughout England without any semblance of political message, or stealing iPods because the Canucks lost, there's no saving you. Category Five.

This is where you will find the individual who stole my bike. (Unless I find him first, in which case you won't find him at all 'cause I'll have arranged to have him sent to a mental institution with a false set of medical records ensuring both that his real identity is never known and that he is kept sedated 24/7 due to his violent nature LIKE BATMAN DID WITH RA'S AL GHUL THAT ONE AWESOME TIME.) This guy wasn't feeding his children with that bike. He was not making a statement, or operating under the belief that his actions were justified. He saw a bike chained up in a locked garage, and made a conscious and concerted effort to steal it. He returned with wire cutters to get into the garage, despite the presence of security cameras (ach! foiled by a baseball cap! dammit!), cut the bike lock with a bolt cutter, nonchalantly wheeled the bike back across the garage and disappeared like a thief in the night.

Left to my own devices in the company of this individual, I might find myself in Category Two.
January 17, 04:01 PM
Chinese Wall
The first lesson in the beginner politician's manual should be how to speak so as not to offend broad swaths of people. Unless the speaker is a linguistically precise comedian who makes his or her living by producing incisive social commentary, there's little to be gained from offending people. Seldom does a politician a good comedian make.

But political correctness that causes us to dance around what we really want to say, watering down the nomenclature while adding nothing of value, should not be tolerated.

This week Nigel Wright left a private equity firm on Bay Street to become Prime Minister Harper's chief of staff, opening himself up to accusations of conflicted interests. He has suggested that he will erect an "ethical wall" to separate him from such conflicts. It has also been called a "conflict of interest screen". Either term would be perfectly reasonable in the circumstances, if we didn't already have a better one.

There is nothing objectionable, let alone racist, about a Chinese wall, yet the government, opposition and media have taken pains this week to avoid using the common and accepted descriptive device. Law firms throw them up whenever a new lawyer is hired from a firm with which they have files, yet the term is beginning to disappear even from professional responsibility textbooks. Why? Who are we trying to save from offense? Certainly not the Chinese. Does anyone think for a moment that Chinese Canadians are somehow ashamed of the Great Wall of China? Merely mentioning an ethnicity or nationality is not a racist slur. Going to great lengths to avoid doing so turns our language into a dull expanse of colourless nouns and verbs, in this case by ignoring a great wonder of the world.

The term is accepted for a reason. No one should be ashamed of it. The wall is more than six thousand kilometres long. It can be seen from space. [EDIT: No it can't, as it turns out.] It turned back marauding Mongolian hordes itinerant combatants. Isn't that more evocative than any barrier that could be provided by some flimsy screen, or worse, the suspect ethics of politicians?
January 17, 04:13 PM
Chad is Ugly from Space

Dear Google,

Please fix Chad. The images you've stitched together make it look like a face with an unfortunate forehead birthmark.

Thanks.

Also, please fix Other Chad. Both his brother and his wife are way more awesome than he is. That's got to be rough.


January 17, 04:15 PM
Sometimes Things Work Out
When a four week trial settles on its second day, there are, to paraphrase Joker, a lot of little emotions to savor. The client's happiness in receiving an award and recognition without having to go through the hassle of a whole trial.

The jury's evident confusion about being brought in, instructed about their important and complicated role, and then being told that they can now go home, having done nothing but listen to some promises about what they were going to hear, and then taking a lunch break. The sadness of London news stalwart Nick Paparella, hanging out all day and having nothing to report.

The palpable rage of an old man tasked with presiding over a case that probably should've settled long ago. The humility of defense counsel, chewed out for being too argumentative in his opening statement.

The shock from plaintiff's counsel, reeling from the old man's admissibility ruling that painted the trial's potential in sombre shades vastly different from the vivid technicolour in which we had previously been viewing it.

But all of this pales in comparison to the emotions I'm feeling. I'm happy that the client is happy. I'm entertained by the way settlement rumours float around the office. I'm disappointed that I don't have a trial to drop in on for the next four weeks.

And I'm stoked that I don't have to finish all the assignments I was working on for this file.

August 11, 06:40 PM
United Kingdom of Rigel VII
July 27, 04:21 PM
Bill Something
May 17, 12:43 AM
Chapter 43: The Tax Principles of Family Law





April 27, 12:11 PM
Fourteen Questions Not Answered on the Law Society's Articling FAQ Page
  1. humourous coffee mug, or no?
  2. what is the appropriate number of Batman posters with which to decorate one's law office?
  3. the mud and rust on my truck: too embarrassing to park where clients might see it?
  4. if I buy an expensive TV with my new income, but I have no time to watch it 'cause I'm always at work, have I really bought anything?
  5. can I wear headphones in my office, or do I have to sit in silence, saddened by the lack of Norwegian Black Metal in my life?
  6. my new firm laptop: will it be able to run Arkham Asylum?
  7. do I have to start eating adult food, or can I eat KD for lunch at my desk?
  8. how much of what I've seen on Mad Men still applies to the office environment?
  9. Harvey Dent: appropriate lawyer idol?
  10. bathing: like, every day?
  11. how much of my attention has to be on work for me to justify billing fifteen minutes while I watch The Daily Show?
  12. how do I respond when clients ask to be represented by someone with the ability to grow facial hair?
  13. will the Justin Bieber ringtone on my firm-provided phone negatively affect hireback?
  14. do I have to explain the whole articling process to girls at bars, or can I just start saying "I'm a lawyer" now?
January 17, 04:16 PM
Universities Can Tell Ann Coulter to Shut Up without Canada Becoming a Police State

Ann Coulter should certainly be allowed to speak freely, if only to demonstrate the ridiculousness of her opinions. And the official position should respect the public enough to differentiate for themselves between her shameless shit-disturbance and legitimate political discourse. And it has! Coulter spoke, insulted ethnic minorities and offended everyone unfortunate enough to wander into her sphere of toxicity. Then she got a letter asking her to watch her mouth. There is a significant difference between politely cautioning someone about the state of the law and "threatening someone with criminal prosecution". (The Vice Provost of the University of Ottawa does not have a say in who is and who is not prosecuted.)

Greenwald, however, is under the mistaken impression that what he calls "Canada's intrinsically subjective 'hate speech' laws" are responsible for this situation. He makes no mention of the Charter, nor this country's robust protections for political speech, instead equating a university official's letter with Big Brother-style thought policing.

Canadians' evident distaste for Ann Coulter has nothing to do with our laws, and everything to do with our advanced civil society. We're not a police state, we just don't countenance the pathetic infotainment that passes for political commentary in the United States. Unlike in America, our newscasters are more than babysitters waving shiny toys to keep us distracted between Cialis commercials. We're much the better for it. We allow political expression of all stripes, pushing social and political discussions to their logical limits in precisely the style of liberty John Stuart Mill envisioned. We just don't allow inflammatory hate speech. As a result we seem to have less hate.

Greenwald's main error is his conviction that all speech is of equal value. It is not. In a country as diverse as this one, verbal attacks on visible minorities serve no legitimate purpose, and are prohibited. This is not an arbitrary or draconian law, it's a progressive one. We have simply elevated the cliché of shouting "fire!" in a crowded theatre to the national level. No sane country allows any person to say anything at any time. Such extremist libertarianism leads to real disasters, not to mention the Hobbesian breakdown of society. The theoretical underpinnings behind the cliché are the same as those which justify limiting hate speech against vulnerable groups.

Ultimately, Ann Coulter, abhorrent though she is, does not pass the threshold for hate speech. She would not be prosecuted in this country for the simple reason that she is not taken seriously enough to warrant such official sanction. But that doesn't mean a respected university must ignore public outcry and let this hateful woman take up valuable campus real estate to spew her self-aggrandizing filth.

Limiting Ann Coulter's exposure is a valuable public service. It's not evidence of our Canadian closed-mindedness. It's a demonstration of our good taste.
March 05, 12:16 AM
Imagine
January 17, 04:17 PM
LSUC Grants a Holiday
In the middle of restitution class today, I received an email from the Law Society of Upper Canada, notifying me that I had an urgent message waiting to be read on their online system:
Dear Candidate,

Due to circumstances beyond the control of the Law Society of Upper Canada, please be advised that the Barrister and Solicitor Licensing Examination dates for June 2010 have changed....

Seems they've pulled everything forward two weeks, meaning I'll be writing the Ontario Barrister exam on May 25, and the Solicitor exam on June 8, two weeks before the original dates for both.

As class ended, students erupted with complaints. Most seemed to center around travel plans now destroyed, and deposits likely lost. "Travelocity is getting an email today," claimed one individual, sounding resigned. I made my own cursory objections via a status update and my MSN display name, bastions of lazy protest both.

But, really, this development might just play right in to my hands. How would I have used those extra two weeks? Studying? Hardly.
In all likelihood I would have spent as much time as possible sitting outside in the spring sun, resuming my annual game of chicken with the family history of melanoma.1 Certainly I would have had my exam materials with me, but a good patch of afternoon sun demands an equally good nap, and the outdoors are not conducive to reviewing papers and books in an organized fashion. Now, due to these new time constraints, I'll have to find somewhere to get some real work done.

Best of all, the keeners are in the same boat! There was no way I would properly use the ample time I had been given. But the Other Half would have. Now much of their advantage has been wiped away. I've spent my life doing things at the last minute, with little preparation and even less review, while they went to office hours and asked questions of profs, and created multiple drafts of their work. Foolish.

In the span of one month, I will have to relearn everything I've forgotten over the last 6.5 terms (the silly dual-degree program requires a summer term of American tax law--also blissfully forgotten), the real estate law to which I currently pay negligible attention in class, the entirety of family law (avoided like the plague), and any number of other testable subjects I don't even know about. Daunting, certainly. But I've been training for this, while the keeners have not. By never doing anything early, wasting valuable study-time reading Batman comics and writing inane blog posts, I've developed a heightened ability to perform under time constraints.

I'm like a blind man with a refined sense of smell. Or like Jughead, when he claimed to have developed the most powerful jaws in Riverdale through disciplined food consumption. Now there's a guy who knows when a good nap in the sun is called for.

So here's to the procrastinators, the real beneficiaries of LSUC's erratic behaviour!

1On the other hand, melanoma may have the upper hand this year, as some of the time I spend outside will shift from the comparatively weak sun of early-May to the burning power of mid- to late-June. By July, it will be time to book a new appointment with the dermatologist.
March 02, 07:37 PM
The End of 2-for-1 Credit and the Fallacy of 'Getting Tough'
The March 8th 2010 issue of Maclean’s, “Canada’s magazine”, has this to say about the elimination of two-for-one credit for pre-sentence custody:
Do the time

“It seems like a no-brainer: convicted criminals shouldn’t get a break for prison time served prior to court dates. And yet, it’s taken four years for the federal government to enact legislation ending two-for-one jail credits. As the old saying goes: you do the crime, you do the time—the whole time, not just half. Convicted criminals have been gifted shorter sentences by the justice system for too long. It’s time to get tough.”

Fortunately, old sayings do not figure among our sentencing principles. The objectives of our sentencing regime are enumerated at section 718 of the Criminal Code, and they are as follows:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Parliament enacted those objectives to guide the courts in fashioning sentences that are just and appropriate to the circumstances of each case. By looking beyond the obtuse imperative to “get tough”, a judge can craft a sentence that neither threatens the safety and security of the public nor condemns the offender to a lifelong cycle of recidivism.

Equitable and progressive though they might be, however, Parliament’s sentencing principles do not take into account the backlog that plagues the criminal justice system. Too often, prisoners languish in dangerous, dirty, overcrowded jails for weeks and months before their cases can be heard.

It was this dubious “gift” that the two-for-one sentencing regime was meant to address: the policy acknowledged that outrageous pre-sentence delays, coupled with deplorable conditions in some Canadian prisons, resulted in suffering that our sentencing provisions did not countenance. Moreover, this hardship is utterly preventable, but for a lack of public or political will. (As ever, “get tough” is a politically unassailable stance.)

To be sure, giving double credit was a bandage on the problem, not a curative. Jail conditions remain execrable, and the Attorney General’s “Justice on Target” initiative has only just begun to rein in administrative delay. But instead of curing these ills, the government has decided to rip off the bandage.

In that respect, Maclean’s is right: it’s a no-brainer.
March 02, 08:39 PM
This Is Old City Hall, Day 19
It's the day after reading week. I've been on the Olympic Tourist diet for two weeks: nachos, wings, caesars and beer, some of the foregoing items recurring more frequently than others. My suit feels more ill-fitting than usual as a result, and I was already half way to looking like Columbo as it was.

My browser thinks that "caesar" is spelled wrong, because the world outside Canada is missing out on that sensational beverage.

I'm with a new judge this week: Judge C-----. She is a recent appointment; prior to this she was a crown in Scarborough. She says Scarborough is a better place to prosecute than downtown, because you get thrown into the deep end faster. I don't know why everybody likes the deep end so much.

She hasn't quite mastered the corridors of Old City Hall yet: she doesn't know where all the secret stairwells go. She does know that there used to be a morgue in the attic, to accommodate the men who were hanged in the central courtyard. The pipes that fed the tubs are still visible, she says. I don't know what morgues use tubs for and I don't ask Her Honour. Still though: why would anyone want to work elsewhere than here?

This morning I watched the trial of an individual charged with assault. The charge arises from a brawl in front of a nightclub -- the same one mentioned in the prosecution of the MMA fighter two weeks ago. It must be a bad news place.

The alleged victim showed the court pictures of his injuries. According to him, just as he was leaving the club, he was punched in the back of the head by unknown aggressors. Outside the establishment some time later, he flagged down a taxi, but before he could get into it a group of young toughs beckoned to him and showed him their rings, which were caked with blood from the back of his head.

The young toughs (see composite at left) challenged the complainant and his friend to a duel, noting that their numbers were even-strength. The complainant alleges that he did not accept this challenge but the accused and his friends began raining blows on him nonetheless. One of these blows resulted in a scratch on his cornea. His friend tried to intervene on the complainant's behalf and likewise went down.

I used to be a bouncer. Not a strong bouncer or one who was at all effectual, but a bouncer nonetheless. I have heard this song-and-dance before: the victim, just trying to make his way home, stymied in his efforts by a persistent aggressor whose only apparent motivation is bloodlust. It has never rung true for me and it does not ring true here. If you wanted to get into a cab and peace out, could the accused really have stopped you? Or did you turn back and defend your honour from some drunk idiot whom you have never seen before and will never see again?

Some young men (and some old men -- see below) ascribe much importance to not backing down from fights.


The justice system doesn't care that you were defending your own honour, your buddy's honour, your girlfriend's honour or the honour of your Stacy Adams shoes. If two people apply force to each other without consent, they have both committed assault.

Worse: no matter who started it, the party who wins the fight is the party against whom it is most expedient to lay charges. Had he been a better fighter, the complainant might have been the accused.

Observations
  • The lead investigating officer looks just like Idris Elba. The crown looks just like Sam Waterston. They make a good team.
  • A question for defence counsel: do you ever advise your clients about proper court attire? Maybe recommend to a young client that he shave his teen 'stache before leaving home, and pick a shirt with buttons over his black housebreaking-issue hoodie? The court is composed of people, for better or worse. Mightn't those people be more inclined to leniency if the accused before them doesn't tickle their prejudices by dressing the part? By bringing this up, am I being classist and/or racist, or just pragmatic? Either way, aren't I keeping the best interests of my client at heart?
A word that the crown made up?
  • "concertation"
March 01, 08:27 PM
This Is Old City Hall, Day 18
Another slew of drug pleas. The first accused can't afford a lawyer and has been denied legal aid. He has attended CLASP for legal assistance from Osgoode students -- but he's charged with possession for the purpose of trafficking, a straight indictable offence, so unlicenced students aren't allowed to represent him. So another guy with criminal charges gets to "wing it" in court. Why bother with criminal lawyers at all?1

The court recesses for twenty minutes after HALF AN HOUR, while counsel get their s**t together. I'm starting to recognize the regular OCH lawyers, just from sitting in hallways. In the foyer, I recognized defence lawyer Kim Schofield from her well-earned Toronto Star style write-up. Plus Mister Mayor; he's always here.

I think I should get some cards printed and put them in the lawyers' lounge. "NEED AN ARTICLING STUDENT FOR CHEAP?"

I bailed on plea court in favour of a high-profile bail hearing relating to the death of a cab driver two weeks ago. In that courtroom I had difficulty hearing: I had a chattering radiator on one side and an interpreter on the other. He (the interpreter, not the radiator) was addressing the parents of the accused. They weren't thrilled I was there. Evidently they didn't think that their son's travails should be treated as a learning opportunity for nosy law students.

Counsel thought I might be the press, which in a way I am. He called for a publication ban and was obliged. Thereafter I didn't record what I heard -- but it was juicy.

Remarks to an accused person (in another courtroom), made in my head
  • You knew when you got up this morning that you were going to court, so you put on your finest court apparel: black jeans, paired with an oversize black hoodie with silver pattern of interlocking American dollar bills in large denominations. I salute you.

Some ridiculous Criminal Code provisions
  • CC s. 163(1)(b) makes it illegal to possess crime comics.
  • CC s. 167 makes it illegal to produce or appear in an immoral theatrical performance.

1 Maybe because it's in the Charter?
March 01, 08:04 PM
This Is Old City Hall, Day 17
There's a poster on a pole outside Old City Hall advertising something called Zeitgeist Toronto:
"We have the opportunity to build a new civilization. Your bankers, lawyers and politicians -- GONE because they are NO LONGER RELEVANT."

On Day 17, I heard a lawyer put forward the argument that his client had had "no intention of smoking crack", but had put a small quantity of the drug in his pocket "just to be polite" to an acquaintance.

If that's not a repudiation of the Zeitgeist platform, I don't know what is. How could society function without such fearsome advocacy?

Observations
  • Justice G---- has a giant portrait of Lenin mounted in his chambers. No matter what your political stripe, that is magnificent. I told him as much.
  • I met a lovely gentleman while waiting outside a courtroom. He was there to make his thirty-second court appearance for the purpose of obtaining counsel and setting a date for resolution or trial. | EDIT, February 20: I don't mean his court appearance was thirty seconds long. I mean he had appeared without a lawyer and pushed the matter back on thirty-one prior occasions.
  • Inscrutable handwritten note of the day: "Poor old man and creepy longhair -- what are they doing here?"
March 17, 12:22 PM
This Is Old City Hall, Day 16
His Honour was feeling vital when I got to his chambers on the morning of Day 16. He had been for a morning swim at the Y and was expecting a shipment of olive oil from Greece. What judge wouldn't be stoked? Such was his generosity of spirit that when I produced a two-page research memo1 for him, he commended me for my initiative and pretended it wasn't at his request.

He told me that he had been speaking with Justice S-------- recently, and that they wanted to get the articling ball rolling for me. (It's gracious of both of them not to inquire as to why I haven't been able to move that ball on my own.) Like His Honour, His Honour didn't seem enthusiastic about my bright idea to take a year off, come what may.

I watched the direct- and cross-examination of an officer who conducted a motor vehicle stop that resulted in charges of fail-to-comply-recognizance and possession of crack cocaine. The stop took place in downtown Toronto's club district. My notes indicate puzzlement that the controlled substance was crack cocaine, not powder, but who am I to know what club kids are into these days? I was always more of a pub person.

Two different accounts of the incident emerged in the courtroom. Which story one subscribes to depends where one falls on the liberty/security, anarchy/order spectrum. According to the truncheon-swinging stormtroopers and their fascist cohorts, the incident was a matter of public safety wherein a person demonstrably dangerous to society was taken off the street and brought to justice after repeatedly abusing Her Majesty's patience and generosity. According to the glassy-eyed defence with its boundless tolerance for drug use and impaired driving, the incident was a series of escalating Charter violations culminating in a highly improper arrest. What is clear, however, is that both parties, police and accused, made some errors in judgment. Both views are noted below.

It was New Year's Eve, close to 3:00 a.m. The accused and his girlfriend were leaving Light Lounge at Richmond and Peter streets, en route to an after-hours club, when they were stopped by police for alleged reckless driving [accused mistake #1]. When the driver stepped out of his vehicle [accused mistake #2], the investigating officer noticed a cell phone on the front seat [accused mistake #3], in breach of the driver's recognizance.

(From the fact that the driver had been ordered not to possess a cell phone, we may deduce that he had some trafficking charges outstanding at the time he was pulled over. That makes the discovery of cocaine in his vehicle a good deal worse.)

After espying the cell phone, the officer lodged the driver in the back of his cruiser. At this point, it seems the officer either did or did not advise the driver accused of his right to counsel, per s. 10(b) of the Charter. The officer's duty notes do not reflect whether the caution was issued [officer mistake #1]. Immediately after so advising or not advising but before placing the accused under arrest, the officer entered and searched the vehicle [officer mistake #2]. The thought process behind this was as follows:
"One cell phone having been found, [the officer] was searching for other telecommunications devices."

Right, because most people get two when they're forbidden from having any.

In due course, the officer located a baggie of crack cocaine [accused mistake #4].

Returning to the cruiser, the officer addressed the accused, and either
(a) held up the baggie of crack and asked, "What's this?", thereby posing an incriminating question before advising the accused of his right to remain silent [officer mistake #3],

OR

(b) held up the baggie and said "Look what I found!" or words of like effect, thereby -- according to defence counsel -- attempting to elicit an incriminating statement from the accused before advising him of his right to remain silent,

to which the accused replied, "I forgot that was in there" [accused mistake #5].

Then it gets a little nutty. Not satisfied with the incriminating admission he had just elicited, the officer made as if to arrest the passenger in the vehicle, the accused's girlfriend. Right before placing the handcuffs on her, the officer turned back to the accused and said, eyebrows raised, "Are you sure?" [officer mistake #4] -- to which the accused replied, "Whatever you find in there, [my girlfriend] had nothing to do with it. If you find anything it's mine" [accused mistake #6].

Clearly, some mistakes were made on both sides. His Honour took stock of them and released his decision that afternoon.

So what happened? The evidence was
(a) obtained in a manner that gravely violated some or all of sections 7, 8, 9 and 10(b) of the Charter, such that, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute;

(b) obtained in a manner that violated some or all of sections 7, 8, 9 and 10(b) of the Charter, such that admission of the evidence would not bring the administration of justice into disrepute;

OR

(c) not obtained in a manner that violated the Charter.

I leave it to you to decide which.

Terms that lawyers use too much
  • "on all fours with" -- who said this first? it sounds dirty
  • "dispositive" -- is that even a word? my Google Chrome spell check thinks not
  • "in terms of", "with respect to", "as far as", "by way of"; lawyers have had drilled into them the value of focusing the judge's attention; they use highly artificial segues to do so.
Apropos of nothing
  • Where are these after-hours clubs? Is it like Mad Men -- are there passwords? Is one permitted to attend if one does not have crack cocaine on one's person?
  • I sat at the counsel table throughout the evidence and Charter submissions. At one point the accused caught me drawing a cartoon of his lawyer holding a gun. He seemed to like it well enough.
  • History will record Day 16 of my Old City Hall tour of duty as the day that Google added something called "Buzz" to Gmail users' accounts. It aggregates every note, chat, blog, tweet, flerg and squib that I post to the ether, and those of all my Gmail-using friends as well. It makes my phone vibrate twice as much as usual. As soon as I hit PUBLISH POST on this bad boy, it will do so again.
  • Below: a misguided suburban youth takes a misguided stand, suggests drug trafficking as a viable alternative to a legal career

1 Would that I could bring such brevity to my blog posts. I omitted to tell His Honour that I drafted the memo between 7:30 and 9:00 that morning, having spent the previous night catching up on Lost. I had to skip showering and run to the courthouse to make it for 9:45. My suit smelled.
February 18, 04:51 PM
This Is Old City Hall, Day 15
Little of note to report from Day 15: Preliminary hearing. 401 collision. The accused, a mid-40s blond lady, was driving on the 401 and struck a parked service vehicle -- specifically a "crash truck", the kind of truck with a plywood tryptich with blinking lights forming an arrow. The driver had been on the scene for thirty seconds before the impact. He heard no squealing or braking: one second he was sitting, the next he was flying. From his testimony, it seemed pretty clear that he intended to get some money out of the ordeal. Maybe he was even genuinely injured. Stranger things have happened.

Observations
  • I ran into a classmate leaving the court just as I was arriving, at 9:45. He thought I was late. Au contraire!
  • I wore all black-and-white to court today. Head to toe: shoes, suit, shirt, tie, jacket, bag, gloves, scarf, hat. I heard once that juries tend not to trust lawyers wearing anything other than black or dark blue -- they think they look cheap, shifty, like used car salesmen. I don't have any other colours anyway. I plan to have a black-and-blue wardrobe with maybe a tweed for the weekends.
  • The third floor of Old City Hall smells of human waste. Entia non sunt multiplicanda praeter necessitatem.
February 18, 04:42 PM
This Is Old City Hall, Day 14
I was at the courthouse at 9:00 a.m., but I managed to miss Justice B-----. So much for a good first impression. I got to Courtroom 128 at 10:15 and court was already in session. A man was pleading guilty to driving with 140 mg of alcohol per 100 mL of blood. He was issued the minimum sentence: a $600 fine, one-year driving suspension. Pretty lucky, all things considered. At the morning recess, His Honour bolted out the door and I had to jog behind him, yelling, before I could introduce myself. We are off to a rousing start.

His Honour is the sixth judge I've shadowed but the first to assign me some research. Counsel for a man accused of assault alleges that no information was produced at his client's first court appearance, which prompted a loss of jurisdiction requiring a new summons to be issued, and since no such process was forthcoming after ninety days the matter ought to be dismissed for want of prosecution ZZZZzzzzzzzzzzzzz ... Clearly there has been a mistake and His Honour was expecting a competent student. One of my classmates, perhaps.

But that was for later in the week. First and foremost His Honour was concerned that probation officers weren't taking seriously their obligations to enforce judicial orders for community service. The accused before him that morning was ordered to perform 150 hours of community service. In 15 months, he had finished a mere 27 hours. The man said he met his probation officer each month and insisted that he would soon take a month off work and plough through the whole thing at once.

As someone who frequently procrastinates and devises ludicrous, quixotic timelines -- this blog is proof positive of that -- I understand the man's impulse. But how was he expecting to feed his family for that month? In the 15 months, did he put any money away, make a nest-egg to tide himself over? Anyway, he said he worked two to three days a week. Why does he think he needs time off? His Honour tightened up the conditions of probation and that was that.

The rest of the day was devoted to another drunk driving trial. The accused was self-represented. He attempted to cross-examine the arresting officer himself. His hands were shaking while he did it. He didn't ask questions so much as allege that his actions subsequent to the traffic stop were reasonable and not indicative of intoxication, that the officer didn't administer the breathalyzer properly, that he didn't hear the officer inform him of his rights. His Honour, trying to be as accommodating as possible, turned to the officer after each accusation and said, "I'm going to take that as a question."

The officer was pretty unflappable. Rightfully so: he knew that it was his word against that of the accused, and in that circumstance the police officer is usually the winner, notwithstanding the court's claim to the contrary. He was polite. He was patient and gentle when addressing the accused's "questions", even when repeating his direct testimony or simply saying, "That's not what happened. You're mistaken. I disagree."

Guess which way that trial went.

Denying a person counsel in a criminal court effectively guarantees they will be found guilty in a complex matter like an over-80 case. But there will be more self-represented accused until legal aid loosens the purse strings, and that can't happen until they have a lot more funding and support. And that can't happen until something really tragic prompts a real appetite for reform. So don't drink and drive. And if you don't have any money, maybe just stay off the road altogether, unless your secret ambition is to have a public inquiry named after you.

Observations
  • During a brief recess, I spied the lawyer I think of as Methuselah, sitting with a client. It occurs to me I should approach him to article. He could probably use the help.
  • On the Kafkaesque layout of the court: in the basement, administrative offices are denoted by letters; on the third floor, letters mean specialized courtrooms; everywhere else, courtrooms use numbers, and they all start with 1, no matter what floor you're on. Whose bright idea was this!
  • What's the connection between law enforcement and baldness? Don't tell me there isn't one.
February 27, 04:19 PM
This Is Old City Hall, Day 13

Day Twelve was a wash: His Honour was called away and I was left in a conference room to finish preparations for my seminar the following day. The seminar was abominable and in retrospect, my time would have been put to better use by running at top speed in the opposite direction from Osgoode Hall, but -- hindsight, what can you do!

The following Monday I attended mental health court with Justice S--------. My notes from that day begin as follows: "It smells like cheese in here." And from that promising beginning, the day only improved.

I don't wish to make light of mental illness. I believe that the mental health court performs an invaluable service and that its officers deserve notice and commendation. But as they will be first to tell you, a lot of funny stuff happens in there.

Consider Ms. X. His Honour informed me that Ms. X was a fixture of the court, and that her court appearances had taken on a critical significance in her life. (Apparently this is not uncommon.) She was doing legal research on her own behalf, and it showed, much to the chagrin of her lawyer. Mrs. X proved the adage that a little bit of knowledge can be a dangerous thing. Also a hilarious thing.

When her name was called, Ms. X was in the body of the court. She drawled "ho-o-o-ld on a moment" as she hauled herself up; "you can hold the matter down for a moment while I get something out of my knapsack." Just like that -- languorous, like a veteran clerk that everybody's scared of.

Her lawyer wanted to put the matter over a week or so. Ms. X gave her about four seconds to speak -- "I think if we could come back on the 22nd" -- and then she went off. I recorded her as accurately as I could manage:

"ONCE AGAIN, you don’t have my interest in mind. I’m entitled to an election, OKAY? So I’m not obligated to have a preliminary inquiry, OKAY?1 Once again I’m the only one here with any brains. [Addressing her lawyer] You don’t know how to use your brains because your father lives in a city. [Addressing duty counsel, His Honour and the court staff] Your father lives in a city, and your father lives in a city, and your father lives in a city. And on the day you retire your father will be in a city. None of you could do what I do in custody. I was at Vanier and Algonquin.2 None of you can do what I do because you don’t know how to use your brains."

Everyone remained silent until this tirade ran out of gas, and then her lawyer resumed. "If we could come back on the 22nd, please." The court was agreeable.

I wasn't completely unprepared for the mental health courtroom. It was depicted on the short-lived CBC series This Is Wonderland, which I have mentioned before. (TIW took place at Old City Hall and didn't spare the details of life in the bowels of the Toronto justice system. A week into my placement, I hunted down the DVDs of the first season.) One early episode featured a mentally-ill homeless man who was campaigning for a municipal government seat. The day after I watched that episode, I saw the real deal. When I arrived at the front doors of the courthouse in the morning, a crowd outside was listening to a homeless man whom I had seen often. He was announcing his candidacy in the upcoming Toronto mayoral election. Not only that -- he was maligning his opponents George Smitherman, Rocco Rossi and Adam Giambrone (obviously this was way back in early February). I see him often, as his campaign headquarters is on the sidewalk at the corner of Bay and Queen. I call him Mister Mayor and I wish him the wildest success.

But back to the real mental health court: midway through my morning in the cheese-smelling courtroom, a group of high school boys entered the courtroom. They were about five minutes too late to get wind of some sordid charges involving a man who stood in the window of his house, naked, waving his genitalia at children passing by on their way to school. I thought it was fortunate that they didn't hear this, not because it would have affronted their delicate sensibilities, but because they would have found it hysterical.

Inexplicably, the young men were accompanied by Mister Mayor. He sat with them for five minutes, then stood up and broke wind. It was audible from my seat on the opposite side of courtroom. He took the opportunity to address His Honour. "How ya doin, Judge S--------?" His Honour greeted him in kind, by name. Evidently Mister Mayor too is a fixture of this court. "God bless you," the mayor continues. "Take care of these young kids; they're just learning. God bless." He took his leave. Outside the courtroom he could be heard to announce, "I just farted in the courtroom!" The high school boys lost it. They will never forget this field trip.

During the morning recess I made friends with a fellow observer from the body of the court. She had a matter coming up -- that is to say, she was one of the accused. I showed her how to get to Coffee Court, the snack bar on the other side of the courthouse. En route she told me that she had had a bench warrant issued against her because had been confused and had attended at the wrong facility on the right day.

My new friend told me that the government wants to take away judges' decision-making powers, so that all they can do is sit on the bench and go to sleep. This is (more or less) my understanding of the government's intentions too. She went on to opine that this was unfair to those who couldn't afford to retain experienced counsel. Other people, not her, of course -- she was rich. She laughed when she told me this. I chose to believe it despite the context.

Observations

  • After observing several matters in mental health court, I felt comfortable noting a pattern that, with some minor modifications, could be applied to every matter that appeared there:

mental illness → family estrangement → poverty → alcohol → crime → arrest → cat death → guilty plea for diversion and treatment

  • From my notes: one accused party was "way too good-looking to be [mentally ill]". Nothing else is stated.
1 I don’t know how she stumbled upon the concept of accused election, but she was right: she’s not obligated to have a preliminary inquiry. Unfortunately, the fruits of her research must have omitted the distinction between summary and indictable offences—she wasn’t getting an election. Moreover, she wasn’t going to trial, so the matter was pretty moot.
2 It’s a short trip from academia to the nut hatch. | EDIT, February 19: It didn't occur to me when the accused mentioned Vanier that she probably meant the women's prison rather than the post-secondary institution. I'm pretty sure she really did go to Algonquin College though.

February 18, 04:02 PM
New York, New York
"since I made it here, I can make it anywhere"

New York is entitled to self-aggrandizement, I suppose, but a line should be drawn. Admit it, HOV: all the makin'-it infrastructure is split between New York and LA! That's like saying being born a block from Broadway is a disadvantage to your theater career.

Make it from Cheyenne, Wyoming and I'll be impressed.
February 14, 02:49 PM
February 14, 02:47 PM
February 19, 01:31 PM
This Is Old City Hall, Day 11
On the morning of Day 11 I sat in on Old City Hall's Drug Treatment Court panel. Justice B------ gave me materials to read the night before, to educate me about the panel's role in justice, health and rehabilitation.

The panel is comprised of ten people, including His Honour and representatives from the offices of crown, defence, duty counsel, probation, court administration and CAMH. Like in pretrial negotiations, the panel considers the facts of an individual's case, his background, and how his treatment is going. Then it negotiates what is to be done -- whether treatment is to continue or whether additional conditions are called for. Like in pretrial negotiations, the accused is not permitted to attend the panel.

Completion of a course of treatment is called "graduation". Relapse delays a participant's graduation, but relapse is anticipated and he doesn't flunk out. Good faith trumps almost everything here. For instance, it seems like just about every participant fails to show up for court, at the beginning. Some hand-holding is required. I don't think Justice K----- would have the patience to administer this kind of justice. But then, the approaches of Justice B------ and Justice K----- are like night and day.

According to the first file on the docket, the accused omitted to mention to the panel that he had separate, non-drug-related charges before the courts. He also failed to honour some of the conditions of his bail. True to the spirit and principles of the program, the panel doesn't let failure (relapse, toxic urinalysis, re-arrest) derail their work or deter them in the pursuit of their objectives. His Honour lets the first accused proceed with his program of treatment on the basis of his statement of desire and notwithstanding his actions to the contrary.

They're a happy group, the panel. Not raucous, but chatty. They remind me of missionaries, doing God's work, happy in the righteousness of their cause. One doesn't expect to meet optimists in their line of work, and it's heartening. I want to ask them whether the program has made them more or less cynical but I'm afraid to do so.

After observing for an hour, it's easy to detect the currents running through the room: sanction vs. rehabilitation, denunciation for past misbehaviour vs. encouragement for future efforts. The currents run along the expected channels. Duty counsel, defence and social workers sit on one side of the table. The crowns (provincial and federal are both here) and the probation officer sit on the other side. I wonder how many times the panel convened before that started to happen.

The crowns are pretty grim, as befits their role on the panel as representatives of the state (and tangentially the public, who arguably have an interest in seeing these offenders kept off the streets. Arguably. And I'm not arguing it).

No participant is just a drug addict. They're addicts and burglars, addicts with histories of abuse, addicts with "immigration problems" (i.e. the problem that Immigration wants them removed -- what other problem could there be?). Violent offenders are not eligible for the treatment program.

It's like detention. Some of the accused are required to write essays to His Honour asking to be admitted or re-admitted to the program, some, like A, His Honour knows well.

A wrote a two-page letter to Judge B------, committing himself to recovery. Eighteen months ago, A was a college graduate, winner of the dean's medal, and gainfully employed. Then A got laid off from his job, got addicted to crystal meth, and went off the rails. In his letter, A declares that by 2015, he will be back to his old self, back to the kind of man he was eighteen months ago. He recognizes that it is going to take five years to undo the damage he has inflicted on himself in a year and a half. That gives one pause.

I wonder how many people on the list are high at the very moment the panel is in session. The number is not zero. I feel guilty for wondering.

The panel finishes all the names just in time for lunch. Drug Treatment Court itself convenes in the afternoon, where faces are put to the names on the morning list. Everyone from the morning panel is present in the afternoon: crowns, probation officer, CAMH workers.

It's nothing like court. There is none of the tension of the adversarial system. A court worker calls a name. The party stands and addresses the court. His Honour peers over the top of his glasses and asks, "Any drug use to tell me about?" When the recovering addict answers "No", the other recovering addicts in the body of the court applaud.

Participants submit to frequent urinalysis, so His Honour knows the answer before he asks the question. Those who have been confirmed clean are called first.

Participants tell the court how they are staying clean. The answers are fairly uniform: volunteering, working, going to meetings, staying busy. One woman admits that she's having trouble staying busy enough: "I can only clean my house so much."

Watching the procession of recovering addicts/offenders put me in mind of the Spectrum of Human Achievement. I'm having a hard time explaining what I mean by that. When I try to elaborate on the idea, the words seem patronizing. Suffice it to say, irrespective of whatever charges the participants might be facing, the strength of will required to conquer a serious addiction and change one's life must be very great.
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September 12, 12:47 PM
Flann O’Brien, At Swim-Two-Birds (1939)

Young [A] passes his undergraduate career drinking with his friends, lying in bed, and working on his novel. The novel-within-the-novel is a work of meta-fiction: its protagonist, [B], another indolent writer, devises characters who spring to life to do as the writer’s pen commands — though they don’t always do so willingly. The characters include a fetching young woman whom B writes as a lust object and whom he then cannot resist. He has his way with her, notwithstanding that she is the product of his imagination.

Following?

Their coupling produces a half-fictitious/half-corporeal (-but-still-fictitious, remember) bastard son, [C]. He is an angry young man, with a talent for writing inherited from his father. He uses this skill to help his fellow fictional characters have their revenge on their progenitor, [B]. Meanwhile, the original protagonist has managed to snooze his way to the top of his class and all is well.

Then the camera cuts away before the top topples.


November 18, 02:20 PM
I want to preserve this forever

July 21, 12:08 PM
Robert Fulford, Toronto: Accidental City (1995)
Robert Fulford is an essayist and mainstay of Toronto’s journalism community. As is expected of Canadian essayists not named Stuart McLean, he is something of a ruffled old malcontent. In Toronto: Accidental City, Fulford takes the reader on a tour of Hogtown’s physical and civic geography (somewhat dated after 14 prosperous years), along the way decrying every architectural, cultural and technological development in Toronto since the end of the nineteenth century. His only affection is reserved for the Red Tories (has anyone ever used the phrase “Red Tory” who is not an affluent white man with a guilty conscience?) who attempted to safeguard the city’s cultural landmarks in the 70s. Fulford supports the attempt, even if he thinks they too fouled up everything they touched and sullied the achievements of their Victorian forbears. It’s a good read if you agree that everyone since Goldwyn Smith (and maybe him too) has been a grasping, shortsighted bureaucrat.

On the whole, I recommend it highly. Unless you’re not from Toronto — in which case, Robert Fulford has no time for you and neither do I.


July 21, 12:07 PM
Charles Dickens, David Copperfield (1850)
Thoroughly lovely!

A friend recently reported that her Creative Writing professor discouraged writing about children because “children don’t have sex or agency”. Charles Dickens gave the lie to this claim 160 years ago (though not the sex part, thank God — we don’t need that kind of blog traffic around here). It’s true, for the first part of his life (and half the book) young Davie isn’t the engine of his own fate. Rather he is buffeted to and fro by the rising and falling fortunes of his family and acquaintances. No matter what happens to him in this period, he maintains an aspect of perfect, childlike guilelessness. As he gets older, David gets better at judging character but always remains earnest in his dealings with people. Over nine hundred pages (or about thirty years) he only thinks ill of maybe four people, fleetingly, and only speaks his mind to one of them. By and large, fate/karma delivers to the villains of the book their just deserts, without David having to sully his hands by interfering.

Dickens acknowledged that David Copperfield was semi-autobiographical, and the writing sparkles where the author drops any pretense to the contrary and the description might be ascribed to either author or character:

“I have been very fortunate in wordly matters; many men have worked much harder, and not succeeded half so well; but I never could have done what I have done, without the habits of punctuality, order, and diligence, without the determination to concentrate myself on one object at a time, no matter how quickly its successor should come upon its heels, which I then formed. Heaven knows I write this, in no spirit of self-laudation. The man who reviews his own life, as I do mine, in going on here, from page to page, had need to have been a good man indeed, if he would be spared the sharp consciousness of many talents neglected, many opportunities wasted, many erratic and perverted feelings constantly at war within his breast, and defeating him. I do not hold one natural gift, I dare say, that I have not abused. My meaning simply is, that whatever I have tried to do in life, I have tried with all my heart to do well; that whatever I have devoted myself to, I have devoted myself to completely; that, in great aims and in small, I have always been thoroughly in earnest. I have never believed it possible that any natural or improved ability can claim immunity from the companionship of the steady, plain, hard-working qualities, and hope to gain its end. There is no such thing as such fulfilment on this earth. Some happy talent, and some fortunate opportunity, may form the two sides of the ladder on which some men amount, but the rounds of that ladder must be made of stuff to stand wear and tear; and there is no substitute for thorough-going, ardent, and sincere earnestness.”

The book also sparkles when David is in love (often), when David is admiring of a peer (often), and whenever Wilkins Micawber embarks on a speech or letter.

According to Wikipedia, a big screen adaptation of David Copperfield is in the works, featuring Simon Pegg as Uriah Heep. IMDb, however, discloses no such plan.


July 21, 12:06 PM
Warren Ellis, Crooked Little Vein (2007)
This is an exercise in hardboiled detective fiction by an author best known for his graphic novels. The book is far removed from the specific time and place in American history that gave rise to the genre — namely, postwar L.A., where racial fears prompted white flight on a massive scale, which precipitated the city’s economic decline and the ghettoization of the urban centre and made a perceived threat into a real one.

In order to overcome the difference between McCarthy-era-L.A. and contemporary New York, where Crooked Little Vein is set, Ellis describes a city full of degenerates with truly astounding sexual proclivities — another hallmark of urban decay. Those hallmarks feature more prominently in the short work than perhaps they ought: instead of undergirding a detective story with sexual preoccupations, Ellis makes contemporary American sexual deviance the central driving force. The square-jawed private dick (hardboiled? check) is conscripted by forces beyond his understanding (led by a man who may or may not be John Ashcroft with a heroin addiction — still hardboiled? check) to recover a mysterious McGuffin document bartered for sexual favours by President Nixon (hardb — what?).

Here the book departs the realm of the hardboiled and becomes something like a Dan Brown book with naughty bits: the missing document is an alternate Constitution which, when read aloud, would cleanse the country of sexual deviance and restore it to its Puritan beginnings. The author has a great time peopling his underworld with villains both in favour of and opposed to such a cleanse and is relatively successful at obfuscating his anti-hero’s stance on the subject until the end. The detective can either rail against the putrification of America or he can throw in with its corruptors. You can guess the outcome by the fact that America is still, happily, awash in filth and depravity. The fact that it’s not the 50s anymore and the degenerates have won, is both the problem with contemporary pulp fiction and its solution.


July 21, 12:03 PM
Kazuo Ishiguro, Never Let Me Go (2005)

Readers of English novelists (even Japanese English novelists) of the last two or three centuries can count on a class sub-text. It’s inevitable, at least until the Windsors themselves start publishing. Kazuo Ishiguro wrote the ultimate treatise on the nuances of English social behaviour (less sub-text than simply -text), The Remains of the Day, in the form (mostly) of an aging butler’s ruminations on the proper etiquette and philosophy to be adhered to by servants such as himself.

In Never Let Me Go, Ishiguro takes a less direct, more allegorical approach, crafting a world just like ours in all but one major respect: that world’s solution to illness and disease. [Spoiler] Generation after generation of clones (never explicitly identified as such) are bred, raised and educated in pastoral seclusion until each is of the appropriate age to fulfill the purpose for which he or she was created — namely, to “donate” his or her organs to normal people. The clones’ “guardians” don’t really come out and tell the young replicants that this is their sole function until it’s necessary that they know, which occurs some time around puberty. In the mean-time, they’re taught to excel in art, academe and sport. The guardians are mindful that the outside world should view the “donors” as equals, as human beings with souls; but even they can never wholly accept the notion. They walk a fine line, telling their charges enough that they might harbour the delusion of some day leading normal lives, but not so much that the clones ever actually rebel against their lot or seek out such a life for themselves.

Instead of eliminating the pain and grief associated with ill-health, the advent of cloning burdens one group with it at the expense of the other. The practice has created a dual society; master and servant, Eloi and Morlock — only in this case the inhabitants are indistinguishable.

After twenty pages or so, a curious parallel reveals itself. It is an injustice of our age that a reader (this reader, at least) approaching Never Let Me Go might find it reminiscent of Michael Bay’s big-budget sci fi flop The Island, minus the chases and with a great deal more pathos and character (apologies to Michael Clarke Duncan). If Ishiguro weren’t already established as a master at capturing mortality and Englishness, this book might have been pigeonholed as speculative fiction and its human elements overlooked. Never Let Me Go is sci fi the way P.D. James’ Children of Men is sci fi: its strengths lie not in imagining the technology of the future but in fully realizing the regular people who will have to live with that future. It’s more notably a coming-of-age novel and a reflection on aging, death, and a life lived with an expiry date.


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