University of Alberta Faculty of Law Blog

Law, Science and Truth

All of the papers from the 2007 Brooklyn Law School symposium on law, science and truth - “Symposium: A Cross-Disciplinary Look At Scientific Truth: What’s The Law To Do?” - as published in (2008) 73 Brooklyn Law Review are are available for downloading in one pdf, here.

All law students should also read Mr. Justice Binnie’s “Science in the courtroom: the mouse that roared” (2007) 56 UNB LJ 307. The article is available on Carswell/Westlaw and can be found here and here.

He has more to say about science in the court room in his recent “exit” interview. The full interview is on the Globe and Mail site.

NYT Graphic on Major Rulings of the SCOTUS, 2010-11 Term

via www.nytimes.com

View here.

It would be interesting to see a similar graphic for the SCC. Any takers?

This land is your land

this land is my land,
From Bonavista
To Vancouver Island*

Except, apparently, sometimes in the various provincial superior courts.

 

Clerks, Research Lawyers, Judges & Scholarship (2)

[the parable continues]

I first typed legal scholarship, but good scholarship is good scholarship, right? It shouldn't matter whether it's "legal" scholarship or choosing another area, history scholarship (chosen simply because I happen to know at least one excellent scholar in that area - something to do with the genetics, no doubt).

 

Clerks, Research Lawyers, Judges & Online Research

This is a small parable for you 3Ls out there (and for that matter the rest of you 1Ls and 2Ls, too.

 

Result versus Reasons: Get it right AND do it right.

“[T]he three functions of reasons for judgment at the trial level … are: 1) explaining to the losing party why he or she lost; 2) enabling informed consideration as to whether to appeal; and 3) enabling interested members of the public to see whether justice has been done. A shorthand way of describing reasons that fulfill these functional requirements is to say that the reasons permit meaningful appellate review”: Diamond Auto Collision Inc. v. The Economical Insurance Group, 2007 ONCA 487 at para. 11,  R. v. Sheppard, [2002] 1 S.C.R. 869 at para 24.

Nonetheless, one proposition that law students are taught - at least they were when I was in law school in the last millennium - is that appeals are from the result, not the reasons. What this means, broadly, is that the result stands if the appellate court is satisfied that it is the correct result - the one that would have been achieved had the judge applied the correct law -  even if the judge got the law wrong in making the decision. However, this mantra ignores the not-so-small niggle that litigation is quite often not driven solely by merits - the desire for truth - but other motives which may not be as laudable. That means that a significant enough mistake by a trial judge in his or her statement of the law may well produce an appeal by the losing side for tactical reasons, particularly where the losing side is better financed and even more so when it feels aggrieved, even if this is without legal merit.

The losing side in litigation often feels aggrieved, especially when it has to pay the winner, but also the losing side's own lawyers. Sometimes the lawyers warned the losing side that the winning side had the better case. But that's not always so. One tactical reason for an appeal is to give the loser time to attempt to negotiate a better result, in the context of the implicit (or explicit) "if we don't settle at a figure I like, we're going to appeal as high as we can go and you won't get your money for quite some time, if ever."

What this means that it is important that the judge not only get the result right but the reasons right.  This has become even more important now that it is more likely than not that the reasons will widely available on some database. The chance of bad reasons luckily vanishing into obscurity, without becoming some sort of precedent, is less than it used to be. A judge of the British Columbia Supreme Court wrote in 2005: "The appellants have not asserted any error in that approach, but I would not wish it thought that by this judgment I accept it. Before the practice developed of posting all judgments of the court below on the internet and thereby saving them for posterity, I would not have considered it necessary to express such a caveat, as the reasons for judgment below would have disappeared into obscurity." (Zacharias v. Leys, 2005 BCCA 560 at paras. 34-35 per Southin JA).

"Bad" precedent injected into a system of decision making based on the assumption that the precedents are "good" causes problems. The Alberta Court of Appeal once wrote: "To a person untrained in law and evidence, these false trains of reasoning are highly meretricious. Once that poison is injected into his or her brain, there is probably no antidote. They even lure some with training." (R. v. Kusk, 1999 ABCA 49 at para. 13.) You shouldn't assume the court intended to refer only to the bar-side of the the legal profession.

The SCC wrote, recently, about the process of law-making by statute: "Bad law, fixed up on a case-by-case basis by the courts, does not accord with the role and responsibility of Parliament to enact constitutional laws for the people of Canada." (R. v. Ferguson, 2008 SCC 6 at para. 73.) The same principle should apply to law-making by judges. (Judges make law, too, right?)

I suppose I could cite the most recent of example of reasons for judgment that triggered this screed but that would unfairly single out one judge for repeating variations of what far too many of his or her trial and appellate colleagues are doing in courts across this country, in too many instances, in too many areas of law. Any lawyer or judge with sufficient expertise in a particular area will know many examples.

In short, it's not enough to get it right. The judge has to do it right, too.

Obiter and do what I say, do what I do?

This is for the judge, lawyer, and law student portion of our readership. The rest of you can safely ignore this. It won't ameliorate the consequences of anyone's friggatriskaidekaphobia. It may, however, provide some of you with more than your preferred daily dose of sarcasm.

Some years ago, an Ontario trial judge (who later became an Ontario Court of Appeal judge) wrote:  "With respect to her first basis for distinguishing ... [a prior Ontario Court of Appeal decision] ... it may be true that, in a highly technical sense, the view of the Court of Appeal ... [on an issue of law] ...  may not have been essential for the ...  [prior decision] ....  but to act on that technical analysis would be to ignore reality."  (Woloszczuk v. Onyszczak (1976),  14 O.R. (2d) 732 at 739,  1976 CarswellOnt 274 at para. 15.) 

It might be bad for one's professional future, too, particularly if one is a trial judge hoping to move up the pecking order.

But what if the problem is Supreme Court of Canada statements of law that are (1) arguably obiter and (2) clearly inconsistent with prior Supreme Court of Canada decisions which aren't even arguably obiter? What if the trial judge's own Court of Appeal has continued to apply the older cases?

Whose hand does the trial judge then bite?

Factual Causation, Parsimony, and the Lord of the Tests

One Test to rule them all, One Test to find them,
One Test to bring them together, and in the light of doctrine bind them.

(apologies to Tolkien, Lord of The Rings)

Law needs to describe itself as a science, ultimately based on empirically verifiable principles, in order to avoid being nothing more than another form of theology, ultimately based on faith. Faith, by definition, does not require empirical verification. Similarly, Law's principles and rules need to avoid amouting to a form of magic that is fantasy, not merely an instance of knowledge beyond our current understanding. Magic, too, does not need verifiability. It simply is.

Physics has its search for the TOE (Theory of Everything). Canadian tort doctrine, in the area of factual causation, at least as expounded by current Supreme Court of Canada doctrine, apparently has its own TOE, its own one "One Test": the but-for test.

Unfortunately for the SCC, the but-for test when properly understood is not a TOE at all. It is not a theory that explains everything.While it is, in practice, a default test; nonetheless, even as a default test, it is not the all-powerful master test in the sense of the One Ring in Tolkien's Lord of the Rings.*   (The LoTR has been endlessly parodied. Two of the best are the Harvard Lampoon's  Bored of the Rings - easy enough to find online - and the Jack Black, Sarah Michelle Geller, and others parody of a seminal scene.) Nor, is it even even a positional equivalent of Asimov's Zeroeth Law of Robotics. 

(edited June 23, 25)

Homolka's Pardon

The media are reporting that Karla Homolka will soon be eligible for a pardon under existing legislation. Nobody has suggested that they have information that she intends to apply. I do not know whether it's a given that she would get a pardon if she did apply. Nonetheless,  a majority of the members of the House of Commons have agreed, apparently, to expedite passage of the portion of  part of Bill C-23 that deals with pardons and changes the existing federal law (The Criminal Records Act) with the intention, apparently, of making it more difficult for Homolka to qualify.The Globe and Mail report is here. 

I assume - I haven't read the new provisions and it's been years since I did anything more than glance at the current - that under the new legislation H has less than the proverbial snowball's chance of getting a pardon in the immediate future.

The politics of the play are obvious, as are the good intentions of the MPs. But, there's that proverb about what the road to hell is paved with.

The lawyer in me wonders whether the Tories, in their grandstanding, and the other  MPs, in their rush to judgment, have received advice from lawyer(s) competent to give that advice that the legislation is constitutional, under the Charter, to the extent that it purports to alter, to their detriment, the eligibility for pardon of persons convicted of Criminal Code crimes prior to the passage of the proposed legislation? Bear in mind that, had the Criminal Code changed to her detriment after Homolka committed her crimes, she'd have been tried under the law criminal law as it was. Is "pardon law" a part of the criminal law for that purpose? The fact that deals with a criminal record suggests there's an argument it is. If it is, then isn't Homolka entitled to pardon eligibility under the law as it was when she was convicted (or new law if it's better for her, but that's not the case.)

The heinous nature of what she did doesn't entitle the current gov't and the rest of the MPs who are onside with it to knee-jerk in a way that's unconstitutional. Her acts were heinous. But that doesn't entitle the state to act unconstitutionally. There is something called the "Rule of Law" that even the current gov't is bound by, even when they don't like it.

But, if the proposed legislation isn't constitutional on the basis that it's contrary to the Charter - say s. 7 - and can't be saved by s. 1, and there isn't a notwithstanding clause, does that mean Homolka would have a s. 224 action against the Crown for damages?

Or does the gov't intend to use the Charter's notwithstanding provision just in case?

I don't know the better (or even correct)  answers to any of this. It's not my bailiwick. Perhaps I've missed something that means the problem I've raised doesn't exist.

Perhaps one of the members of this blog (or another reader with the required expertise) is in a position to comment.

Candidly, nothing I've seen in the conduct of the current party in power, or its members antics while in the oppostion makes me confident that the gov't has adequately considered the legal issues. I'd like to be wrong. about that. I'd also like to win Friday's $50 million lottery. (Yes, I 've bought a ticket.) 

Research, law journals and reviews, and competence

A friend said to me a while back that more and more of the articles that appear in reputable, peer-review required, law publications are written by academics for academics and intended to be read by academics familiar with the unstated assumptions. The corollary is that they're not written for lawyers in practice. Another corollary is that they're not written for judges. Since there is limited space in the publications, yet another corollary is that there's less space for articles written by anybody for practitioners and judges, even if the subject is one that should be written about for practitioners and judges. And yet another corollary is that it is less likely that a practitioner or judge looking for something helpful will devote the time required to determine whether there is something helpful in the journal.

On the other hand, the Advocates' Quarterly is, I think, the primary common law Canadian journal whose purpose is to publish articles about legal issues written for practitioners and judges. It has existed since the late 1970s. It is very easy to find well written, helpful, information in the AQ. It is easier, now, that the AQ is indexed on line and is available in full text, on line. However, the articles have been indexed online for years.

A quick check on CanLII produces 167 hits in reasons for judgment on what might be references to the AQ across all of the Canadian courts and 57 limited to the appellate courts. Some of the hits won't be to the AQ. Conversely, it is also likely that there were references to the AQ material in argument, but the judge did not consider the material relevant to the issues that needed to be decided, so didn't mention the journal. Still, putting these uncertainties aside,  what does an average of about 5 references a year suggest to you about the extent to which the profession fails to refer to what could well be a helpful source. 

Measuring angels' butts and wild (Canada) goose chases

Judges are now required to provide meaningful reasons for their decisions. That means that, more often than not, the judge will say something about the law that will be applied to the facts, whether in paraphrase or by quoting from another decision. 

The Supreme Court of Canada is at the top of our judicial pecking order. That means that judges below the SCC should be safe from criticism if they accurately quote, or paraphrase, the relevant SCC decisions right?

No.

As some of you will suspect, the rest of this post deals with factual causation. Those of you who aren't interested should skip to the conclusion.

SCC says: no more common law fundamental breach of contract

Or, you can't get there from here that way any more, but if you go this way, you can: Tercon v British Columbia (Transportation and Highways) 2010 SCC 4

Addendum - I've added some excerpts from the reasons.

Greed is Good (Not)

This post, after the break, is long. It deals with the just posted (on the ONCA website) result in Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47 . If you click on the case, it will open up in a new window in html form. The pdf and html links are below.

http://www.ontariocourts.on.ca/decisions/2010/january/2010ONCA0047.htm
http://www.ontariocourts.on.ca/decisions/2010/january/2010ONCA0047.pdf

In summary, the MFN claimed that they are entitled to 35% of the net revenues from Casino Rama - the casino and night club located on their reserve in Ontario - in perpetuity or until they agree otherwise. The MFN lost at trial. The MFN lost again on appeal. The decision was unanimous. I suspect that, given the amounts involved, this one is headed for the SCC.

I've excerpted paragraphs that might explain, for some, the title I've chosen. I suggest the excerpts "speak for themselves".

Just Deserts and Oh, Henry!

A loaned $200,000 to B under demand promissory notes. A and B agreed that B would pay the interest in ways that enabled A to avoid declaring the interest as income. A didn't declare it. A's heirs continued that practice after A died. B repaid part of the principal - about $67,000-  but eventually stopped paying the interest and didn't repay the principal. A's heir sued. Their action for repayment of the principal and payment of the unpaid interest was dismissed on the basis the loan was part of an illegal arrangement and entirely unenforceable.

Blame Peter?

or be careful what you wish for, just in case you get it.

Once upon a time Ontario had legislation which, as statutes are wont to do, contained some provisions; that is, sections (clauses) declaring something that was supposed to be law.

One of the sections declared (provided) something that was probably required for the better working of the area of law to which it applied. It also seemed to declare (provide) something else - lets call that Principle C - that was not necessary, in the sense that Principle C already and necessarily existed as a matter of the common law of that area of law. However, not surprisingly, the Ontario courts acted is if (indeed some even said) that Principle C was a creation of that section of the statute. None of the decisions bothered to consider whether the section did nothing more than declare existing law because it didn't matter to the end result. The result was what mattered.

Would You Want This?

Most people reading this board know something about the difference between the process by which Canada appoints its Supreme Court judges and the U.S. appoints its. In addition, most people reading this board know something about why, at least until recently, (1982)  the SCC generally wasn't a lightening rod for political attacks of the sort regularly faced by SCOTUS.

There's a recent paper about the SCOTUS worth reading for those interested in such issues. 

CS Lerner and N Lund, "Judicial Duty and the Supreme Court¹s Cult of Celebrity", just published on LSN (SSRN). Clicking on the link will take you to the SSRN site. (h/t to Prof. Lionel Smith (McGill))

A Purifying Ordeal or Just An Ordeal?

Consider:

Cordell v. Second Clanfield Properties Ltd., [1969] 2 Ch. 9 (Ch. D.), at page 16 per Megarry J.:

"The process of authorship is entirely different from that of judicial decision. The author, no doubt, has the benefit of a broader and comprehensive survey of his chosen subject as a whole, together with a lengthy period of gestation, and intermittent opportunities for reconsideration. But he is exposed to the peril of yielding to preconceptions, and he lacks the advantage of that impact and sharpening of focus which the detailed facts of a particular case bring to the judge. Above all, he has to form his ideas without the aid of the purifying ordeal of skilled argument on the specific facts of a contested case." 

Maybe so. One might well challenge Megarry J.'s thesis. (Some one will, in due course,)

In the meantime, though, there's the other hand (but not yet the third): sometimes there's apparently no aid whatsoever.

"Since neither counsel cited the binding decisions of the Court of Appeal (or indeed, any authority at all), neither party is entitled to costs of this motion."

Wilson v. Bobbie, 2006 ABQB 22 at para. 42 per Slatter J (now Slatter JA)

The Decline Of Common Law Constitutionalism in Canada

With the passing semester, the time comes for a little reflection. Bradley Watson wrote this piece over a year ago, and noticing it not to be already on the blog, I find it apt to reference it now. Quote:

If one were to scour the course syllabi of Canadian law schools over the past twenty to twenty five years, one would search in vain for two things: a sense that anything might have been lost with the introduction of the Charter, and an account of rights rooted in anything other than the fashions of the current generation. With respect to the former, one Canadian observer has noted that “not one public voice was raised in opposition to the end of British North America.” Furthermore, the “Charter has also played its part in encouraging us to forget our own history. Law students are unshakeably convinced of two things about the Canada that existed before the Charter. First, Canadians simply had no rights until we adopted the Charter and, second, until it got a constitutional guarantee of rights, Canada was just not a proper, respectable country.”

Osgoode as it Gets

The Toronto Star is running an interesting piece about a former sex worker whose grit and tenacity landed her a spot in Osgoode Hall this year, and one of ten students whose requirement of a previous degree was waived. As the reporter notes, this Pretty Woman meets Legally Blonde scenario is perfect for a movie script. It is a remarkable and inspiring story of personal achievement against the odds.

Book Review

God's Joust, God's Justice
John Witte, Jr.

Grand Rapids: William B. Eerdmans Publishing Company, 2006

 498 Pages

 

Witte, a professor at Emory University, offers an intriguing account of the role of religious life shaping our legal heritage, and makes a case of its continued relevance in tracing our history and its role both in continuing our particular historical circumstances, as well as an argument for its necessity in interdisciplinary legal studies. 

The book is a compilation of previously published articles that have been moulded together, so one can expect less of an exhaustive argument, but rather illustrative “snippets” that highlight and emphasize issues that align more with both his methodological approach and traditional American preoccupations, viz. human rights, constitutionalism and American founding, and understandings of family before and after Roe v. Wade. As such, for the purposes of contextualization, it does bear the marks of a distinct tradition and most notably in its debt to his mentor Harold Berman.

 

Overview of approach:

 

“For me, history is more than a series of tricks that we play on the dead, or that the dead play on us. History is more than simply an accidental chronology of first one thing happening, and then another. For me, history is also a source of revelation, a collection of wisdom...The challenge of the Christian historian is to search within the wisdom of the ages for some indication of the eternal wisdom of God. It is to try to seek God’s revelation and judgment over time without presuming the power of divine judgment. It is to try to discern God’s justice within God’s joust” (4).

 

Witte puts forth what he calls “the binocular of law and religion” which is to say that, in the Western tradition, the historical vision is one part law, one part religion that interact and bounce off each other, and the means that informs the major currents of change has been dialectic: “Every legal tradition has known both theocracy and totalitarianism – the excessive sacralisation and the excessive secularization of law.  But the dominant reality in the West is that law and religion stand not in monistic unity, nor in dualistic antinomy, but in dialectic harmony” (5). The modes of cross-fertilization include, but are not limited to:

Conceptual overlap – eg, sin and crime, covenant and contract, righteousness and justice

Formal overlap – eg, liturgy and ritual, habits of tradition and precedent, shared sources of authority and power

Methodological overlap – analogous hermeneutic interpretation, casuistic and rhetorical methods of argument and instruction, systematic methods of organizing doctrine

Professional relationship – both have officials

Institutional interaction – political and ecclesiastical officials and institutions (5)

 

As he notes, the goal of the “binocular” is to avoid the monocular view of looking to history with law or religion alone, for the purposes of:

Grand civilizational pictures – in which he follows Berman by identifying a distinctly Western tradition with its distinct watershed moments, particularly Rome and its conversion under Constantine, the Papal Revolution, the Protestant Revolution, The Enlightenment, and Post-WWII.

Narrower denominational pictures – in which emphasis is placed on mainly Protestant interactions and influences post-Reformation

Discrete doctrinal pictures of law and religion in Western history – revealing origins and trajectories of issues as they have played out and influence our understanding, with an emphasis on human rights and the family (6)

 

 The merits of the approach is an illuminating perspective that casts light on panoramic glimpses of history and ways of conceiving unifying threads that persist and continue to inform. It situates itself comfortably and contents itself as being detached from other scholarly investigations of the past. The student of history will find the approach most problematic, especially since it refuses to engage itself with defences from competing interpretations and problems. One issue comes notably to mind, that law and religion are not defended from the critiques that would displace them as foundational, nor an outline of the basis of granting them similar status in historical investigation, which would require deeper theorization. Thus, the reader is left with an interesting approach, but which presses no compulsion in acceptance. However, one suspects a combination of textual approachability, time, faith, and perhaps other unarticulated theological underpinning grounds the apparent complacency.

 

So much for me trying to sound academic. Bottom line: interesting book, controversial issues, moderated tone.