It’s a judicial decision that stems from an alleged Highway Traffic Act violation, but unlike most of that genre, it references William Shakespeare, Lewis Carroll and castigates the cut and paste function as “one of the four horsemen of the modern apocalypse.”
The judgment, written by Justice Fergus O’Donnell tells the tale of a “pleasant young man” who thinks his case should not proceed because he believes the court has no jurisdiction over him — an argument O’Donnell believes is a “misbegotten fruit of the internet.”
Currently making the rounds in the legal community, O’Donnell’s lively page-turner includes such passages as: “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.”
O’Donnell normally presides at 1000 Finch Ave. W. but, as the ruling notes, swapped jobs for a “fortnight” with a colleague in the “sylvan environs of Niagara Region.”
Here the judge met Matthew Duncan, who was pulled over for allegedly failing to signal a turn near his Grimsby apartment in late 2011. Duncan refused to present his licence, telling police they had no jurisdiction over him. A struggle ensued and Duncan was Tasered and arrested for allegedly assaulting an officer, according to the court.
O’Donnell wrote that the case was unremarkable — “the bread and butter of provincial court,” except for Duncan, “whose mind was filled with what my late father would have called ‘notions.’ ”
While Duncan did not consider himself a freeman on the land, O’Donnell wrote, his approach was similar to the fringe movement, where people generally see themselves as outside of the law because they do not consent to be governed.
“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.”
In a section titled “The Gods are Kind,” O’Donnell expressed relief that a recently published Alberta ruling addresses similar “freeman on the land” jurisdictional arguments. He concluded Duncan’s argument had no merit.
But things end well for the pleasant young man. O’Donnell dismissed the charge, deeming the initial traffic stop unlawful, and noted Duncan was entitled to resist arrest.
Torstar News Service could not contact Duncan. O’Donnell did not wish to comment.
O’Donnell was called to the bar in 1986 and practised commercial law at the Toronto firm of Borden & Elliot (a Borden Ladner Gervais predecessor firm), before serving as a prosecutor in the federal Justice department for more than 20 years.
Justice John Laskin of the Ontario Court of Appeal hasn’t read O’Donnell’s judgment, but noted that as a lawyer, he wrote good, entertaining factums that always begged further reading. (A 2010 judgment written by O’Donnell, relating to an impaired driving charge, reads like a more traditional, legal document.)
While many in the legal community appreciate the writing, florid decisions can attract criticism.
“There is always a risk when reasons are too witty or clever that they are about the judge. This is a problem because the courts exist to serve the litigants, not lawyers or judges,” said Toronto defence lawyer Frank Addario.
Wendy Earle, a Borden Ladner Gervais (BLG) partner who worked with O’Donnell in the ’80s, thought he made a serious point effectively, and made it more accessible through humour.
“It’s vintage Fergus,” she said.
Sean Gosnell, also a partner at BLG who worked with O’Donnell, said the decision shows the justice system operating at its best.
“To be a good judge requires not just being smart, it requires a sense of humanity, and a sense of fairness, and he showed that in the way in which he disposed of the case,” Gosnell said. “He didn’t allow this person’s behaviour to distract him from applying justice as it should properly be applied.”
Stephen Pitel, a legal professor at the University of Western Ontario who focuses on ethics, says he smiles when he reads literary decisions, but wonders if a smile is enough of a reason for the trend to continue.
He said of all possible litigants to “poke a little fun at” self-represented litigants are “well down the list,” after professional lawyers who might be more used to criticism.
Pitel said that doesn’t appear to be what’s happening here — he sees O’Donnell as being dismissive of a particular style of argument, and not so much the litigant.
“The problems created by these judgments are small, the gain we get from these sorts of judgment, if any, are small, so it makes it a tough debate,” he said.
A course for judicial writing has been offered to judges since the early ’80s, and an advanced course since 2010, sponsored by the National Judicial Institute and the Canadian Institute for the Administration of Justice.
In the advanced program (slated for Victoria this year), Canadian author Charlotte Gray is one of the instructors, as is Laskin. Over the course of a few days, judges write decisions and focus on introductions, organization and finding their voice.
A renewed focus on writing may be one of the reasons why more decisions with a literary bent are appearing. Lawyers are quick to point to a few notable Ontario examples, including Justice David Watt, who wrote about a murder appeal:
“Early one morning in June 2006, Melvin Flores closed the book on his relationship with Cindy MacDonald. With a butcher knife embedded in Cindy’s back. Fifty-three blunt force injuries.”
And Justice Joe Quinn, who began a decision about a volatile custody dispute: “Paging Dr. Freud. Paging Dr. Freud.”