The Wit (not just wisdom) of the Bench

Most people (even lawyers!) usually think that reading case law is dry and humourless. But it depends on the judge! There have been several decisions over the last few years that have shown that judges have a sharp wit and a flair for writing! Take a moment to enjoy these.

One example is R. v. Duncan, a recent decision by Mr. Justice Fergus O’Donnell. In this case a young man was accused of assaulting police officers who were attempting to arrest him. His defence was that the police and the Courts had no jurisdiction over him. Justice O’Donnell employs some highly entertaining writing in his decision. Don’t ignore the footnotes… Mr. Duncan was self-represented. Other than a mildly annoying disinclination on his part to stand when addressing the court (although he did stand when questioning witnesses), he was a rather pleasant young man. Unfortunately, he was a rather pleasant young man whose mind was filled with what my late father would have called “notions”.¹ It has been said that, given enough time, ten thousand monkeys with typewriters² would probably eventually replicate the collected works of William Shakespeare.³ Sadly, when human beings are let loose with computers and internet⁴ access, their work product does not necessarily compare favourably to the aforementioned monkeys with typewriters.⁵ …

Thus it was that the trial began with Mr. Duncan objecting to us proceeding on the basis that I had no jurisdiction over him. Mr. Duncan provided me with an “affidavit of truth”, a rather substantial volume that appeared to me to be the result of somebody doing a Google search for terms like “jurisdiction” and the like and then cobbling them together in such a way that it makes James Joyce’s Ulysses look like an easy read. This hodgepodge of irrelevancies relied upon by Mr. Duncan was one of the misbegotten fruits of the internet. Finding it was a waste of Mr. Duncan’s time; printing it was a waste of trees; and my reading it was a waste of my time and public money. With that volume as his starting point, Mr. Duncan spent some time explaining to me that I had no jurisdiction to try him, that he was not a citizen of the province or the country, that he was not a person as defined by my definitions, that there was no contract between him and me to give me status to sit in judgment over him and so on. As I have said, Mr. Duncan struck me as a perfectly pleasant young man, but on this issue he seemed a bit obtuse. I suppose that if perfectly pleasant young men weren’t led astray from time to time by drugs, alcohol, broken hearts or rubbish on the internet, then the dockets of provincial court wouldn’t be quite as plump as they usually are.

1. I should point out that Mr. Duncan preferred not to be called Mr. Duncan but rather Matthew. There was some mumbo-jumbo about the natural person and the administrator and that one of them might have been Mr. Duncan and one might have been Matthew and one, but not both, of them might have been the person speaking to me in court (while seated). However, when I read the “affidavit of truth” presented to me by Mr. Duncan, I noticed that it had been sworn by someone whose first name was clearly “Matthew” and whose second name looked very much like “Duncan” and certainly began with a “D” and a“u”. Since Mr. Duncan agreed that the affidavit had been sworn by him and accepted my proposition that there is no “D” and no “u” in the name Matthew, I continued to refer to him as Mr. Duncan through the proceedings.
2. For readers under the age of thirty or so, the “typewriter” was a mechanical device used for creating documents that pre-dated the computer and lacked some of the computer’s more annoying characteristics, in particular the computer’s facilitation of “cutting and pasting”, which is undoubtedly one of the four horsemen of the modern apocalypse and which has cost many trees their lives and many lawyers and judges their eyesight.
3. “William Shakespeare” was a sixteenth century English poet and playwright of some skill. He is remarkable insofar as he and Joseph Conrad are among the very few English-language authors of particular merit who were not either Irish or Scottish.
4. The “internet”, also known as the “world-wide web” is a bi-polar electronic Leviathan that has erupted on the world scene in the past two decades. In its benevolent manifestations, it has enormously increased and expedited access to useful information of all sorts, increased global awareness of myriad events, facilitated family and commercial communication across national boundaries in the blink of an eye and helped topple dictators; it is probably fair to say that its advent is of no less significance than the invention of the printing press. However, just as the printing press has been put to odious use from time to time, the internet has its own Jekyll and Hyde nature: it is a near certainty that future generations will look back at these decades, obsessed as we are with the twin behemoths of “reality” television and the “ooh, look at me, I must tell the world what I had for breakfast” narcissism of social media and at the billions of hours thus lost to a near psychotropic electronic escape from any useful pursuit and wonder if Aldous Huxley only got a few details wrong in Brave New World. For the purposes of this case, the relevance of the internet is its un-policed “garbage in/garbage out” potential and its free-market-of-ideas potential to lure in otherwise pleasant and unsuspecting folk with all manner of absurdity and silliness.
5. Lest anyone misunderstand me, this is by no means intended to compare Mr. Duncan to a monkey. As I have noted, Mr. Duncan seemed a decent fellow who expressed himself well (other than when rambling a bit too long about jurisdiction, as noted herein) and whose principal shortcomings appeared to be too much free time with internet access and too little discernment in whose example he followed. The reference to monkeys with typewriters is intended solely to point out that technological “advances” are sometimes used to such ends that one wonders if perhaps the Luddites didn’t have a point.

Read the full judge’s Decision Documents on the Canadian Legal Information Institute website here.

Somewhat less kind, but equally entertaining, commentary comes from Mr. Justice Quinn in Miller v. Carley, a dispute about which of several unsavoury characters might be entitled to the proceeds of a lottery win: After a busy day conducting illegal drug transactions, the plaintiff, the defendant and a mutual friend stopped at a corner store where the defendant purchased some “scratch” lottery tickets. One of the tickets proved to be a $5-million winner.

The parties dispute ownership of the winning ticket. If the ticket were a child and the parties vying for custody, I would find them both unfit and bring in Family and Children’s Services.

The case is awash in untruths and curiosities. It is a study in good fortune squandered and generosity abused.

Read the full judge’s Decision Documents on the Canadian Legal Information Institute website here.

Mr. Justice Quinn is known for his witty, but pointed, commentary.  His opening line in Bruni v. Bruni, a family law case, is another classic. He ultimately stated that, as the parties “repeatedly have shown they are immune to reason, … I have tried ridicule as a last resort.” Paging Dr. Freud. Paging Dr. Freud.

This is yet another case that reveals the ineffectiveness of Family Court in a bitter custody/access dispute, where the parties require therapeutic intervention rather than legal attention. Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder requiring treatment.

Read the full judge’s Decision Documents on the Canadian Legal Information Institute website here.

Perhaps the moral of this posting is that one should be cautious about engaging in litigation, lest one’s foibles be commented upon by a judge with both a strong opinion and a quick wit.

If you have any questions or would like more information on this topic, please contact Beth Traynor at [email protected] or call 866-820-6652.