When I practiced as appellate counsel in the Court of Appeal for Ontario, I came to know the differing approaches of the Justices of Appeal very well. Just prior to the hearing date, I would call the Registrar's office seeking the one piece of information which could make or break a favourable hearing: the panel list. Would there be a Justice on the panel familiar with and sympathetic to criminal law issues? Or would the panel be stacked with Justices more concerned with commercial liens and the division of property?
In truth, the best panel was not filled with Justices learned in the law but those hardened by the trial courts: those Justices who had spent the prime of their career sitting in the lower level courts presiding over murders, robberies, and drug conspiracies. Judges like Justice John Brooke, Justice Allan Goodman, and Justice Horace Krever were the best draw in a criminal appeal as they exercised their judgment and common sense in a manner made for a criminal appeal. True they were no stranger to case law, indeed, they made case law. But their legal acumen was enhanced by their uncanny ability to seize upon the heart of an issue and render a fair and equitable decision. For this panel, the law was known, and the advocate's challenge was to adroitly respond to the comments made by these wily and nimble judges, who could see the play of a trial in their mind's eye, like an intricate chess game, and thus appreciate the dynamics of the case before them.
In contrast, the Supreme Court of Canada seemed to be more lofty, requiring a sublime understanding of the case law. Only Chief Justice Lamer, as he then was, (and yes, I just dated myself) offered a refreshing glimpse of one who was, like Leo Bloom in Ulysses, a journeyman accustomed to the realities of the trial courts.
This nostalgic foray was brought about by the recent decisions of the Supreme Court of Canada, some of which I have written about in prior postings here, here, and here, culminating in the last effort when the SCC released the jury vetting trilogy. The trilogy decision seemed effortless, straight forward, almost easy and uneventful. On the second reading, it dawned on me why this was so: the decision was based on a common sense and practical approach to criminal law. The decision was pure trial judge.
Essentially, the decision approves of background criminal record checks of jurors, where legislation permits, as long as the information is subsequently shared with the defence. By extension, should the police or the Crown come across other pertinent information relating to the potential juror through other investigative techniques, then that too can be used in choosing a jury, but again with the concomitant obligation to disclose the material.
However, this disclosure is not limitless in its aspect. Often experience and intuition are invaluable tools, producing invaluable information. Such irreplaceable information gleaned through years of practice, need not be shared and cannot be reproduced to form part of a disclosure package. How true. Common sense cannot be packaged and this decision, together with the other recent SCC decisions I blogged about show that common sense can make precedents. As an aside, these decisions were all written by Justice Moldaver, a recent SCC appointment from Ontario, who not only sat as a Trial judge but was also a defence lawyer. It seems as though the SCC is truly kicking it old school!