Justice David Brown of the Ontario Superior Court of Justice is a careful and thoughtful jurist. Since his appointment as Administrative Judge in charge of the Toronto Estates List, he has been confronted with a number of contentious and difficult cases in this highly charged area of civil litigation. With this background, a postscript Justice Brown added to his decision in Salter v. Salter, 2009 CanLII 28403 on the subject of costs in estate litigation matters is especially noteworthy:

“From a year of acting as administrative judge for the Toronto Region Estates list I have concluded that the message and implications of the McDougald Estate case are not yet fully appreciated. A view persists that estate litigation stands separate and apart from the general civil litigation regime. It does not: estates litigation is a sub-set of civil litigation. Consequently, the general costs rules for civil litigation apply equally to estates litigation – the loser pays, subject to a court’s consideration of all relevant factors under Rule 57, and subject to the limited exceptions described in McDougald Estate. Parties cannot treat the assets of an estate as a kind of ATM bank machine from which withdrawals automatically flow to fund their litigation. The ‘loser pays’ principle brings needed discipline to civil litigation by requiring parties to assess their personal exposure to costs before launching down the road of a lawsuit or a motion. There is no reason why such discipline should be absent from estate litigation. Quite the contrary. Given the charged emotional dynamics of most pieces of estate litigation, an even greater need exists to impose the discipline of the general costs principle of ‘loser pays’ in order to inject some modicum of reasonableness into decisions about whether to litigate estate-related disputes.”

An advertisement by a group calling itself Keep America Safe has caused an uproar in the close knit ranks of the conservative legal community in the United States. Keep America Safe was started by Elizabeth Cheney, daughter of former Vice-President Dick Cheney, and commentator William Kristol. The ad takes aim at lawyers in the Obama administration Justice Department and calls their patriotism into question for legal work done on behalf of Guantanamo Bay detainees before their government service. The lawyers are referred to in the ad as “The Al Qaeda 7.”

To their great credit, a number of legal scholars and former government officials have come forward to protest these outrageous accusations. In a statement published on March 8, 2010, the authors write:

“The War on Terror raised any number of novel legal questions, which collectively created a significant role in judicial, executive and legislative forums alike for honourable advocacy on behalf of detainees. In several key cases, detainee advocates prevailed before the Supreme Court. To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honourable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.

Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. Guantanamo detainees likewise have access to lawyers for purposes of habeas review, and the reach of that habeas corpus could eventually extend beyond this population. Good defense counsel is thus key to ensuring that military commissions, federal juries and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.

To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system.”

This important statement was signed by, among others, former senior officials in the Bush administration as well as Kenneth Starr, prosecutor in the Monica Lewinsky scandal involving Bill Clinton. Writing in the March 10, 2010 edition of the Wall Street Journal, former Bush Attorney General Michael Mukasey also joined the call:

“It is plainly prudent for us to assure that no government lawyers are bringing to their public jobs any agenda driven by views other than those that would permit full-hearted enforcement of laws that fall within their responsibility – whether those laws involve prosecution of drug dealers, imposition of the death penalty, or detention of those who seek to wage holy war against the United States. It’s also prudent that Congress exercise its long-established oversight responsibility to provide that assurance.

But that prudence is not properly exercised by arguing that lawyers who defended drug cases, or worked on defense teams in death-penalty cases, or helped bring legal proceedings in behalf of those detained as terrorists, are automatically to be identified with their former clients and regarded as a fifth column within the Justice Department. The rules of conduct of the District of Columbia bar, for example, direct that representation of a client not be portrayed as endorsement of the client’s views or behavior.

If the Department of Justice comes to attract only lawyers who have spent their professional energy principally in avoiding matters of controversy, the quality of lawyers willing to serve at the department will decline, and the department will suffer, as will we all.”

In the most recent edition of the Criminal Lawyers Association Newsletter, there is a reprint of the speech given by Mr. Justice Marc Rosenberg of the Ontario Court of Appeal on his receipt of the prestigious Martin Criminal Justice Award. Justice Rosenberg was a distinguished member of the criminal defence bar before his appointment to the Court in 1995. The award, named after legendary criminal lawyer and appellate court judge G. Arthur Martin, is the highest expression of esteem the Association can give.

In his speech, Mr. Justice Rosenberg praised the criminal defence bar for their essential role in safeguarding constitutional rights and the right to a fair trial. Those in attendance however could not have missed Justice Rosenberg’s reference to comments made by his colleague on the Court, Mr. Justice Michael Moldaver, himself a distinguished criminal defence lawyer while in private practice. Speaking before the Association in 2005, Justice Moldaver had caused a firestorm when he voiced complaints about the ever increasing length of criminal trials and the number of motions brought by defence lawyers under the Charter of Rights. The suggestion that unmeritorious motions were being brought to increase legal fees or squander precious legal aid funds hit a raw nerve. While Justice Rosenberg did not refer directly to Justice Moldaver’s views, some of the comments he made were aimed in that direction:

“When complaints are voiced about Charter motions making trials longer and overly complex, we must all step back and think about the broader context in which those Charter applications are being brought. No doubt, there are some Charter motions that should have been left on the cutting room floor. But we cannot lose sight of the fact that there is no one else out there whose job, day in and day out, in every case, is to ensure that the state is held to account, and to abide by the fundamental rules and the supreme laws that we want our society to be guided by.”

There is no doubt that co-operation between the participants in the criminal justice system and the exercise of a firm hand by trial judges, will speed up the trial process and benefit the administration of justice. Justices Moldaver and Rosenberg would undoubtedly agree on the point. This extra-judicial debate between senior colleagues of a Canadian appellate court, however, is exceedingly rare.

On February 2, 2010, the Court of Appeal for Ontario released decisions involving the jurisdiction of Ontario Courts for accidents occurring outside the Province. The decisions in Van Breda v. Village Resorts Limited and Charron v. Bel Air Travel Group Ltd., 2010 ONCA 84, involved a serious accident and death while the Plaintiffs were vacationing in Cuba. The question at issue was whether Ontario Courts could assume jurisdiction over the resulting actions, or whether the claims would have to be brought in Cuba. The issue is an important one. With the ease and frequency of travel, it is to be expected that some travellers will meet with injury while outside of their home jurisdiction. When the injured person returns home and is required to seek medical attention, the venue of a legal action can take on real practical importance.

The appeals in the two cases had been argued in April, 2009. While the decisions were under consideration, the Court decided that it would take the opportunity to revisit its earlier ruling in Muscutt v. Courcelles and four companion cases. The cases dating back to 2002, which had come to be known as the Muscutt quintet, set out an eight part test for deciding whether Ontario Courts should assume jurisdiction in cases involving accidents occurring outside the Province. As a result of academic criticism that the multi-factored test had created too much uncertainty and discretion, the Court of Appeal decided that a second look at the issue was required. The Court convened a five judge panel and the parties were invited to reargue the appeals, with particular attention to the continued viability of the Muscutt framework. I became involved in the matter at that point, as counsel for the intervenor the Ontario Trial Lawyers Association.

The resulting decisions were authored by Mr. Justice Robert Sharpe, who had also written the decisions in the Muscutt quintet. Justice Sharpe agreed that, after seven years in the litigation trenches and hundreds of similar cases, the Muscutt quintet was due for a “tune up.” He disagreed, however, with the overarching criticism that the decisions created too much uncertainty, stating “In my view, the submissions of the appellants exaggerate both the degree of uncertainty produced by Muscutt and the degree of certainty and predictability that would be achieved by adopting CJPTA.” (the Court Jurisdiction and Proceedings Transfer Act enacted in four Provinces) Justice Sharpe went on to propose “clarifications and modifications” to the Muscutt test which are designed to simplify the analysis, stating:

“The core of the real and substantial connection test is the connection that the plaintiff’s claim has to the forum and the connection of the defendant to the forum, respectively. The remaining considerations or principles serve as analytic tools to assist the court in assessing the significance of the connections between the forum, the claim and the defendant.”

Regarding the criticism that considerations of fairness had created a test that was too discretionary, Justice Sharpe again clarified that:

“consideration of fairness should not be seen as a separate inquiry unrelated to the core of the test, the connection between the forum, the plaintiff’s claim and the defendant. Consideration of fairness should rather serve as an analytic tool to assess the relevance, quality and strength of those connections, whether they amount to a real and substantial connection, and whether assuming jurisdiction accords with the principles of order and fairness.”

The intent of these important decisions is to try and simplify this complex and difficult area of the law. It will be interesting to see how the decisions are applied in practice.

Clifton Williams of Will County, Illinois got alot more than he bargained for when he yawned at an inopportune time during a hearing into his cousin’s guilty plea to a felony drug charge. As reported in the American Bar Association Journal and Chicago Tribune, Judge Daniel Rozak sentenced Williams to six months in jail for criminal contempt for what the Prosecutor described as “a loud, boisterous attempt to disrupt the proceedings.” Williams’ father disagreed, saying “I was flabbergasted because I didn’t realize a judge could do that. It seems to me like a yawn is an involuntary action” and Williams’ cousin, the defendant in the case, weighed in and said that “it was not an outrageous yawn.”

The Chicago Tribune undertook a decades worth of contempt citations and found that Judge Rozak was responsible for issuing a third of them, usually for cell phones going off or shouting by spectators during the proceedings. As noted by the Tribune, criminal contempt in the face of the Court can occur where there are acts that embarrass, hinder or disrupt the Court in its administration of justice or lessen its dignity.

The situation was perhaps best summed up by Williams’ aunt, with whom he resides and cares for his 79 year old grandmother. “This is ridiculous – you’ve got all these people shooting up kids, and here this boy yawns in court [and gets six months]. It’s crazy. This could happen to any one of us.” Williams was eventually released by Judge Rozak after serving three weeks in jail.

Trial lawyers are constantly searching for those elusive qualities of clients and witnesses which will capture the attention of the Court and result in favourable treatment by a judge or jury. Opinions on the subject are frequently based on little more than gut reactions. In the recent case of Catholic Children’s Aid Society of Toronto v. Nikesha B., Madam Justice Heather Katarynych of the Ontario Court of Justice gave a helpful summary of her observations of the mother in that case, who was facing the loss of her child to adoption as a result of her battle with mental illness. Justice Katarynych’s moving tribute included the following:

“She [the mother] paid attention to her personal appearance and was unfailingly well groomed. There is a generosity of spirit about her. She presented herself throughout the trial, and in the face of difficult testimony, with great calm. She paid careful attention as the society unfolded its case against her. The only time she showed impatience and it was brief, occurred when society counsel was being particularly obtuse with her at one point in cross-examination of her. She displayed good understanding of the court’s task. She was thoroughly attentive to the witnesses, refrained from dialogue with her counsel or others when witnesses were in the midst of their testimony, refrained from body language designed to draw the courts’ attention to herself rather than the witness and was responsive to the courts’ directions. She displayed good stamina. Her own evidence was presented over the course of three days. She was articulate. Her answers to questions, whether posed by her own counsel or society counsel, were responsive and thoughtful. She displayed excellent listening ability and excellent ability to communicate her evidence, faltering only briefly when society counsel asked about the sorts of symptoms that indicated to her that her mental health was deteriorating. The question was appropriate cross-examination. It was nonetheless apparent that this concentration takes this mother to a place in her being that is quite raw.”

Although Justice Katarynych decided in favour of the society, it seems to me that her words of wisdom and insight into the qualities of a good witness extend well beyond the case before her.

Sadly, Justice Stephen Borins of the Court of Appeal for Ontario passed away on June 13, 2009. Justice Borins was appointed to the then County Court in 1975 and was highly respected throughout his career for the quality and thoughtfulness of his judicial writings, which were characterized by historical references and scholarly analysis. Justice Borins was elevated to the Court of Appeal in 1997 and continued to serve on the Court with distinction until his passing.

One of Justice Borins’ most interesting recent judgments was the 2006 dissenting decision in Cowles v. Balac, which involved the striking out of a jury in a personal injury claim. His reasons amounted to a love letter to the jury system and characteristically included a lengthy historical overview of the discretion of a trial judge to strike out a jury on grounds of complexity. Justice Borins wrote:

“In my experience as a trial judge, I presided over several very lengthy criminal jury trials involving difficult concepts, such as complicated conspiracy trials that involved the co-conspirator’s exception to the hearsay rule, and trials where self-defence had to be explained to the jury. Based on that experience, I have a high regard for the intelligence and common sense of juries. If a jury can deal with similar issues in the criminal context, logically a jury should be able to deal with them in a civil context notwithstanding that in criminal trials the trial judge has no discretion to strike the jury. Based on my experience on this court, I have a high regard for the ability of trial judges to explain difficult and complicated concepts of law and factual issues to a jury.”

“In reviewing the cases in which the court has considered whether to strike a jury on the ground of complexity, I was struck by the absence of any attempt to define what constitutes a case that is too complex to be trusted to a jury. In addition, I was struck by the absence of any analysis as to why some cases should not be tried by a jury and others should be, and by a similar absence of any analysis as to why a judge is presumed to be able to do a better job than a jury. Although juries have rendered fair and rational verdicts for centuries in very complicated criminal trials, why is it assumed that they are not capable of doing so when the same circumstances become the subject of a civil action? In reading the judicial opinions, it is difficult to escape the conclusion that decisions about the right to a jury trial in particular cases are informed more by intuition and assumptions about the relative abilities of juries and judges than by empirical knowledge. Stated somewhat differently, without the benefit of supporting empirical data, the hypothesis used to support striking a jury is that jurors, but not judges, are incompetent to deal rationally with complex civil cases. To this I would add, as it is accepted that a jury trial presents more management issues for a trial judge than a bench trial and requires the trial judge to prepare and deliver instructions to the jury, in my view judges must be careful to avoid subconscious bias in favour of a bench trial when confronted by a motion to strike the jury.”

Justice Borins also wrote a number of important judgments on the standard for the granting of summary judgment under the Ontario Rules of Civil Procedure, holding that it is not the function of a motion judge to make findings of fact on disputed evidence.

Justice Borins’ passion for law and justice were evident throughout his distinguished career.

In a revealing interview with law blog Bitter Lawyer, the distinguished investigative reporter Gerald Posner has some interesting comments on life at Wall Street firm Cravath, Swaine & Moore, where he practiced as an associate before becoming a journalist.

“Sweat shop with a capital ‘S.’ I billed over 3300 hours the first year and I was not the highest biller in the firm. You had no life but the firm. The partners loved their practice, but that’s the only way you can stay at a place like that. Divorce was almost viewed as though an associate had made the decision to stay with the firm rather than have a personal life.”

Posner was asked whether his legal training helped him as a journalist.

“Big time. The major thing is that I’m not afraid of documents, after getting used to them on the antitrust litigation against IBM while at Cravath. So when I approached the JFK assassination, reporters would say there are tens and tens of thousands of pages of docs. And I’d think, ‘So?’ Also, non-lawyers tend to be more impressed with a legal degree than they should – it helps open up doors.”

Posner also shared his insights into the reason for enduring conspiracy theories on issues such as the Kennedy assassination and 9/11.

“Conspiracies are so much more satisfying when a major accident or death takes place that shakes up our world.  We hate to think our lives can be changed by random acts of violence by sociopathic losers in life – like Lee Oswald or James Earl Ray.”

The Ontario justice system lost a leading light on May 17, 2009, when David Humphrey passed away at the age of 83. Justice Humphrey was a leader of the criminal bar for over 35 years and was known for his extraordinary cross-examination skills, his humour and story telling ability. For years, he held court in the lawyers lounge at 361 University Ave. telling war stories and mentoring young lawyers. Justice Humphrey was appointed to what is now the Superior Court of Justice in 1985 and promptly took to calling himself “Merciful Dave.”

The stories regarding Justice Humphrey are legendary. In a rape case in the 1970’s that he considered to be particularly weak, his entire closing argument consisted of “Ladies and gentlemen of the jury, if this case is rape, then I’m a monkey’s uncle and although the resemblance may be amazing, I ain’t.” The jury acquitted on all counts. One day in his law office, with partner and now Justice Hugh Locke, the office secretary called out in alarm “Mr. Humphrey, the law society auditors are here to audit your books. It’s a spot audit.” Without missing a beat, Humphrey replied “That’s terrific Patty. Order them a coffee and take it out of the trust account.”

His exploits extended outside of the courtroom. An opera lover, Humphrey was the only member of the audience to boo Maria Callas at a concert at Massey Hall. Watching from the sidelines at the 1957 Grey Cup game at Varsity Stadium, he stuck his foot out and tripped Hamilton Tiger Cat defensive back Bibbles Bawel who was running down the field with an interception.

Justice Humphrey was honoured by the Advocates’ Society in the wonderful book “Learned Friends” as one of the fifty greatest advocates of the period 1950-2000. And in November 2008, he received the G. Arthur Martin Award given out by the Criminal Lawyers Association in recognition of those at the very pinnacle of the profession. Justice Humphrey will be sorely missed.

The Criminal Lawyers Association has announced that members with more than ten years experience or the qualifications to represent clients in serious criminal cases will no longer accept legal aid certificates in cases of homicide or complex matters involving guns and gangs. This important effort is meant to highlight the woefully inadequate legal aid tariff and the discrepancy in resources between the Crown and defence in serious criminal cases which has been identified, most recently in the report of the Goudge Inquiry Into Pediatric Forensic Pathology, as a potential source of wrongful convictions. The consequences of this action will undoubtedly be watched with great care by officials at the Ministry of the Attorney General. Persons charged with serious offences and who cannot afford to hire a lawyer will be unable to secure representation, with the effect that they will either be unrepresented or, more likely, will have counsel appointed for them by a judge at rates well above the legal aid tariff. There will almost certainly be more news to come on this issue.