Am I Late For This Supreme Court of Canada Appointment?

I wake early. This morning was no different, except this morning I woke to the news of the long-awaited and speculated upon appointments (actually nominations) of the Supreme Court of Canada (or SCC - another acronym).

I was on the whole relieved and pleased. Although I do not know Madame Justice Karakatsanis, I do know Mr. Justice Michael Moldaver. He will be an asset to the Court. He is smart, hard-working, and humorous. He has experience as both a trial judge and an appeal judge. He has written judgments in all areas of the law, including criminal law.

He is an oft-quoted judge, even as a trial judge in the superior court. His reasoning tends to be impeccable. Even when he is in the minority on an issue, Moldaver deserves and receives respect. In the SCC Find decision on challenges for cause based on the partiality of potential jurors in a sexual assault against children trial, Moldaver's dissent formed the basis of the accused's appeal. Althought the SCC did not agree with Moldaver's outcome, it is clear that his reasons gave the Court pause for thought and helped illuminate the issues. As the Chief Justice stated:

 As Moldaver eloquently observed in Betker, supra, at p. 447, "the test for partiality is not whether one seeks to change the law but whether one is capable of upholding the law...

I, for one, will look forward to the change.

Poetic Justice?

Does poetry have a place in the courtroom? An Ottawa Crown thinks so. In an attempt to convince a judge to convict an accused of an impaired driving charge, the Crown set his submissions to rhyme. Although the judge convicted the accused, she did not mention the use of the unusual literary device. My advice to the Crown: don’t quit your day job.

Poetry and the law are no strangers. Many eminent poets have also been trained in the law such as the American, Wallace Stevens and the Spanish poet, Frederico Garcia Lorca. In Canada, F. R. Scott was a legal scholar who also waxed poetic. He held the position of the McGill Dean of Law in 1961 and was a well-respected constitutional/human rights litigator. Indeed, he was a vocal proponent against the Quebec anti-communist statutes known as the “Padlock Laws.” His poems are beautiful. They are insightful reflections of a proud Canadian and are well worth reading.

But does poetry, for it’s own sake, have a place in the legal arena? It depends on the use. In the Emkeit case, the Crown read an inadmissible and inflammatory poem to the jury on a murder trial. Although the majority of the SCC did not overturn the conviction, the strongly worded dissent by Hall, Spence, and Laskin JJ. suggest they were not amused by the “so-called poem.”

On the other hand, in light of the contextual approach used by the SCC in Charter cases, poetry and other literary material may have a place in elucidating and interpreting Charter rights and values.

For those interested in further reading, there are suggestions at the Law and Literature blog from April.

Update on Friday, October 14, 2011 at 1:03PM by Lisa A. Silver

I just did a very quick search of Supreme Court of Canada cases to see if any literary books and/or authors have been refrred to or quoted. In the 2003 Wu case, Binnie J., speaking for the majority, on the issue of the use of conditional sentences in lieu of fines, referred to the concept of debtor's prison and said:

The trial judge of course put his finger on a serious problem.  Debtors’ prison, a dreadful institution excoriated by Charles Dickens in Little Dorrit, is no longer with us.  But according to the most recent report from Statistics Canada, 17 percent of all people in custody in provincial or territorial institutions in 2000-2001 were jailed for default on unpaid fines...

By using the Dickens analogy, Binnie J. quickly transports us to the dank and dark world of 19th century England with great effect. Now, this is the way law and literature can really connect!