Tuesday, May 21, 2013

Play nice in the sandbox boys and girls of the Supreme Court of Canada

All I really need to know about how to live and what to do and how to be I learned in kindergarten. Wisdom was not at the tip of the graduate school mountain, but there in the sand pile at school.

These are the things I learned:
  • Share everything
  • Play fair
  • Don't hit people
  • Put things back where you found them
  • Don't take things that aren't yours
  • Say you're sorry when you hurt somebody
  • Wash your hands before you eat
  • Flush
  • Warm cookies and cold milk are good for you
  • Live a balanced life - learn some and think some and draw some and play and work ever day some
  • Take a nap every afternoon
  • When you go out in the world, watch out for traffic, hold hands and stick together
  • Be aware of wonder. Remember the little seed in the Styrofoam cup: the roods go down and the plant up and nobody really knows why, but they are all like that
  • Goldfish and hamsters and white mice and even the little seed in the Styrofoam cup - they all die. So do we
  • And then remember the Dick-and-Jane books and the first word you learned - the biggest word of all LOOK
Everything you need to know is there somewhere. The Golden Rule and love and basic sanitation. Ecology and politics and equality and sane living

Take anyone of these items and extrapolate it into sophisticated adult terms and apply it to your family life or your work or government or your world and it holds true and clear and firm. Think what a better world it would be if we all - the whole world - had cookies and milk at about 3 o'clock in the afternoon and then lay down with out blankies for a nap. Or if all governments had a basic policy to always put things where they found them and to clean up their own mess.

And it is still true, no matter how old you are, when you go out in the world, it is best to hold hands and stick together.

All I Really Need To Know I Learned In Kindergarten by Robert Fulgham.

"The Scoldee"

Retiring Supreme Court justice scolds junior colleague
Kirk Makin - Justice Reporter
Monday, May 20, 2012
Supreme Court of Justice Morris Fish is pictured on the front steps of the Supreme Court on April 22, 2013 in Ottawa. Justice Fish announced he will retire at the end of August. (Dave Chan for The Globe and Mail)

With his departure just weeks away, the senior judge from Quebec took a sharp jab recently at Justice Richard Wagner, the province's junior judge, in a homicide case featuring a hotly contested aspect of criminal law.


Supreme Court orders new trial for woman who disposed of baby’s body

“My colleague’s assessment ... is both incomplete and flawed,” Justice Fish said.
The key issue in the case, R v Buzizi, was whether a trial judge should have permitted the jury at a Montreal murder trial to consider whether the victim provoked the accused into attacking him.
Writing on behalf of Justice Michael Moldaver and Justice Andromache Karakatsanis, Justice Fish said that the defence had “an air of reality” and, therefore, the jury should have considered it.
Justice Wagner concluded that there was no air of reality to the appellant’s claim of provocation because his violent acts were not a response to a “sudden, unexpected, spontaneous and unforeseeable situation.”
He urged his colleagues to show deference to the trial judge, “who is in the best position to determine whether the evidence is capable of supporting the necessary inferences is credible.”
Justice Fish accused Justice Wagner of ignoring key aspects of the evidence that bolstered the notion that the accused was provoked.
In a modulated response, Justice Wagner cited case law to bolster his own view of the defence of provocation.
Ottawa lawyer Eugene Meehan, a Supreme Court expert, said that Justice Fish’s unusual salvo at Justice Wagner, the court’s newest appointee, brought to mind National Geographic nature shows where a tribal patriarch smacks around a “newly arrived young buck.”
“Except this isn’t National Geographic; this is the Supreme Court of Canada,” Mr. Meehan said in an interview. “This was a high-water mark of juridical jabbing; something heretofore seen only in the U.S. Supreme Court.”
Mr. Meehan also noted that Justice Wagner’s elaborate minority reasons – which were considerably longer than those of Justice Fish’s judgment – strongly suggest that either Justice Moldaver or Justice Karakatsanis switched their vote late in the game, abandoning Justice Wagner and helping Justice Fish to fashion a majority.
Mr. Meehan said that Supreme Court judges tend to control their adverse reactions to colleagues since they know that in future cases they will need to solicit each judge’s vote in hopes of piecing together a majority.
“There will always be another playtime,” Mr. Meehan said. “And if you want the playtimes to be productive, you have to play nice in the sandbox. But if someone knows it’s their last playtime, the gloves come off.”
Criminal law has always been a staple of the court’s docket. As its ranking expert in the field, Justice Fish’s imminent departure from the court is a major concern to the defence bar, which perceives him as the only judge on the court who consistently advocates for the rights of the accused.
Last year, he aimed another shot across the bow of a colleague at a legal conference hosted by York University’s Osgoode Hall Law School.
In a speech that went unreported at the time, Justice Fish appeared to take on Justice Moldaver over a controversial position Justice Moldaver has espoused to the effect that the court system is being ground down by needless, futile challenges under the Charter of Rights and Freedoms from defence lawyers who pursue “mind-numbing” legal manoeuvring.
Justice Moldaver, a former defence counsel, invariably describes himself as a strong supporter of the Charter – but not of lawyers who “trivialize and demean” it by delaying cases and “pilfering precious legal-aid funds.”
Without mentioning Justice Moldaver by name, Justice Fish referred in his Osgoode Hall speech to “a controversy that has arisen in recent years about when counsel shall make submissions under the Charter.”
He urged defence lawyers to launch Charter challenges any time they feel it could advance a client’s interests, and where there is a reasonably cogent case to be made.
“I suggest to you that it is part of the duties of defence counsel to test the perimeters of Charter protection,” Justice Fish said. “I think it is counsel’s duty to assist the courts in litigating Charter claims.”


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