The appellant is personally acquainted with the business of the criminal courts. He has been exposed more than once to the terrain — to its traps, its obstacles and its safeguards. But he needs help in navigating its waters, and has a right to counsel for that purpose.

The decisive question on this appeal is whether he was improperly deprived at trial of a reasonable opportunity to exercise that right.

I believe that he was.

One need only read the briefs to be struck by the palpable animosity that practically leaps off the pages. If I order costs at this point, whether increased or normal, against either party it will be in the context of a bellicose and confrontational atmosphere and will only add fuel to the fire. If the cases go to trial the trial judge can probably make a more informed determination of the costs in the overall disposition of the case. If the cases are settled the costs can be dealt with as part of the overall resolution.

The Crown brought a cross-motion having to do with setting dates for the further steps in these appeals. Counsel should communicate with the Court to arrange a conference call to deal with these matters. A pre-trial conference will be scheduled before another judge. May I express the hope that the parties will approach the question of settlement with an attitude of dispassionate serenity that has not heretofore always been evident.

Miscommunication, and unintended consequences, are best minimized when, as the saying goes: “the parties are on the same page”.  More specifically, that adage suggests a “written” page will more likely effect a consensus and certainty as to the nature and extent of the precise legal obligations and expectations between parties to a contract.

This dispute is a controversy of undoubted public importance.  It involves an attempt by a person or persons unknown to dupe the National Post into publishing an allegedly forged bank document which, on its face, implicated the then Prime Minister of Canada, Jean Chrétien, in a serious financial conflict of interest.  The courts below concluded that the police possess reasonable and probable grounds to believe that the inculpatory entries on the “leaked” document are false.  The document, if authentic, would have suggested that at the same time the Prime Minister was said to be exerting influence on the federal Business Development Bank of Canada (“BDBC”) to grant a $615,000 loan to the Auberge Grand-Mère, a private business in his riding, the Auberge Grand-Mère allegedly owed the Chrétien family investment company $23,040.  Unless the Auberge Grand-Mère could be saved from insolvency, the story went, the debt would likely go unpaid.  The Prime Minister’s private financial interest, on this theory of events, conflicted with his public duty.  Some in the media referred to cluster of events around the loan controversy as “Shawinigate”.

Recently, some rules of evidence have been liberalized, allowing for more flexibility. Seduced by this trend towards flexibility, some judges in various jurisdictions have been tempted to rule all relevant evidence as admissible, subject to their later assessment of weight. But according to our Supreme Court, this is heresy. The trend towards flexibility has not undermined the need for judges to take a rigorous approach to admissibility, separating that analytical step from others, such as determining the weight to be given to evidence: R. v. Khelawon2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787 at para. 59.

I do not criticize the responding party for any unethical conduct. It is an appropriate and recognized effort to examine and test legislation that governs the conduct of a particular enterprise. Where there is apparent conflict between the enterprise and the governing legislation, it is common place and not inappropriate to attempt to bring the enterprise into compliance with the legislation. Frequently this involves creative, out-of-the-box thinking by entrepreneurs and their legal advisors. The present effort was genuine and inventive, but ultimately the plaintiff relies on a distinction without a difference.

The activity is one that many would enjoy and it is not unethical for an individual to create a business that would meet the demands of those who enjoy the activity. This court makes no comment whether hunting animals in captivity should be permitted or not.

However, the legislators enacted the FWCA which is remedial legislation with a purpose. It was the legislators' purpose to prohibit the hunting of elk et al. in captivity. I have found, on the facts put forward by the responding party, that the activity whatever it is called and whether or not it is proceeded by the sale of the animal in advance of its "harvest", the activity remains a "hunt". That is why people want to do it. That is why they pay to do it rather than being paid for harvesting on behalf of a farmer.

Nor, does Rule 52.03 of the Rules of Court under which Dr. Dumais's medical report was admitted assist the Plaintiff. This Rule procedurally facilitates the admission of evidence of medical practitioners for pragmatic reasons related to resources, time and costs. It does not cloak the contents from all the laws of evidence.

In commenting on the absence of admissible evidence, the Court recognizes, of course, that evidence need not always be explicit; reasonable inference can be drawn from proven facts. It is quite another matter, however, to make assumptions as a substitute for evidentiary gaps. With due respect for the contrary argument advanced, on the record here the Court is being asked to simply accept as a circumstantial leap of logic, not evidence, that "but for" a broken finger the plaintiff would probably not be in her present condition. The Court cannot leap that far. This is not a remoteness of damage issue. It is a proof of damage issue.

Il s'ensuit que la décision du juge de « retirer » le plaidoyer est dénuée de tout fondement juridique. À mon avis, elle rejoint la catégorie des décisions arbitraires et capricieuses que la règle de la primauté du droit proscrit. Disons-le clairement: la décision d’écarter le plaidoyer de culpabilité et de mettre un terme à la poursuite constitue une entorse aux normes les plus élémentaires de conduite judiciaire, normes que tout juge, même le plus inexpérimenté et mal renseigné, est censé connaître et est tenu de respecter. Le serment d'office du juge est de rendre justice selon le droit et la décision frappée d’appel n'est aucunement conforme à cet engagement solennel. Il est dans la nature humaine de se tromper. En définitive, ce qui importe c’est la leçon que l’on tire de l’erreur commise.    

The appellant has attempted to distinguish the factual situation in this case from that in Renfroe v. Higgins Rack Coating and Manufacturing Co., Inc. (1969), 17 Mich.App. 259, 169 N.W.2d 326. He didn't. We couldn't.

Marisa, it is clear that both of your parents love you very much.  They both want to be there for you.  And – and this is the thing about love Marisa – they both need you to be there for them too.  You have a role to play here.  It’s okay for you to love both your mother and your father.  The love you have for your father does not take away from your love for your mother.  And the love you have for your mother does not take anything away from your love for your father.  Love is not some small thing, like a monthly allowance, that has to be spent carefully and can easily run out.  Love is like the air that we breathe, Marisa: it is everywhere, and there is plenty of it to go around for all the people we love.  You don’t have to choose between your mother and your father.  You can choose both of them.  You should choose both of them.

As I read George, and while the terms are certainly not used interchangeably, surrounding pleadings were struck for the use of innuendo, argument, conclusions, and “inflammatory” language.  I say this to make the point that pleadings are not restricted to the dull greys of formulaic prose.  A little poetry or colour is not necessarily a bad thing.  The question is: do the phrases used take such liberties that they go beyond informing the other party, to the extent of becoming inflammatory or prejudicial?  In this case I think not.  I take “shattered” to be reasonably synonymous with “broke”, or “failed” and unlikely to mislead a fact-finder.  Similarly, while “launching” may be, as the defendants argue, more colourful than “propelling”, or “throwing”, it does not offend.

Mr. Venditello has proved himself a veritable virtuoso at exploiting the fervent desire of the justice system to facilitate his right to counsel to create delay for his own ends.  In the interim, the main complainant has fallen ill and died.  Even a peremptory “with or without counsel” trial date was not proof against the stratagems of this defendant who, thus far, has avoided trial with all the determination of a cat fleeing a bath.

The court in Jordan sought to change a culture of complacency not gullibility.  The latter may well need addressing as well, but only in an Alice in Wonderland world can the pursuit of justice be advanced by its denial.  The Charter will not long stand as a publicly-cherished bulwark of fundamental rights and freedoms if it is permitted to be exploited and indeed perverted to secure ends utterly disconnected from those of justice. 

Closing argument was in writing: an eye-glazing, bum-numbing, disc-herniating total of 662 pages (single-spaced, medium-sized font and heavily footnoted). Then there were the answers to dozens of written questions that I forwarded to counsel in the course of preparing these Reasons. It was a superb effort.

The trial was like a physical deformity that one, eventually, accepts as a permanent condition. Yet, despite everything, I will recall the experience fondly because of the unrelenting civility of counsel and their unceasing mastery of the evidence, all under difficult circumstances.

But perhaps more important is the fact I do not see Smoczyneski’s evidence as being necessary. Zuber has testified and presented his case on his wage loss. I have to assess the credibility of that evidence and will still have to decide what his earning capacity was pre and post-accident. In short, Zuber’s claim for past and future wage loss will be for me to decide, not Smoczyneski. 

Third, even if the provisions of rules 30.10 and 31.10 could have been satisfied in the immediate case, which is far from certain, the Plaintiffs circumvented the jurisprudence about class action procedure. Under class action procedure, the availability and the use of evidence, compelled or otherwise, that goes to the merits of the plaintiff’s claim pre-certification is strictly limited and temporarily regulated. This is not a small matter in the theory and methodology of class actions; a great deal of byzantine argument has been made and jurisprudential blood spilt over the battleground of the gatekeeping role and scope of the certification motion and about when the merits, as opposed to the procedure, of a class action should be the focus of the parties’ and the court’s attention. The Plaintiffs circumvented this class action jurisprudence. 

I made a fuss. I told them to stop wasting money. So they settled. 

But why do we have a system in which so much tax money gets wasted, unless someone takes the time to make a fuss? 

Hal Lancaster, the recently retired Wall Street Journal editor, bureau chief, and columnist of 30 years has observed that, “Getting fired is nature’s way of telling you that you had the wrong job in the first place.”

The British essayist, Samuel Johnson (1709-1784), also commented that “the excesses of hope must be expiated by pain, and expectations improperly indulged must end in disappointment.”

At bottom the case at bar is the spawn of a turf war between the provincial government and the teachers’ union.  The prize in that war is control of the College of Teachers.

The stench of power politics is a miasma that emanates from the mound of materials placed before me in this case.  The language of war and the making of peace (“the holding out of an olive branch”) even entered the courtroom.

I make it clear that the court is not blind to reality.  But fundamental to the Rule of Law is the need for a judge in a case such as this to deal only with the justiciable issue and take from the materials only that which is of interest as a matter of law.  And ignore the rest.  This I have done.

I would like to make one parting comment.  I have been challenged by this case.  It is not because of the complexity of the legal issues posed by the charges although I admit that they were not always easy.  I have been challenged because this young man was clearly up to no good.  In the particular circumstances of this case, the line between criminal liability and a reprehensible anti-social attitude was a fine one. It is sometimes seductive to convict and punish someone for being a “bad” person.  Especially when that person came so close to committing the offences for which he was charged. However, that fine line remains a bright line.  That line is a fundamental one.  It marks the boundary between a finding of guilt and the presumption of innocence.  Our criminal justice system depends upon impartial and dispassionate judges who are not swayed by any result-oriented thinking, doing their best in drawing that line correctly.

I have tried to do so in this case.

Typical of the bizarre procedural history of this seven-year-old action between a client and his former lawyers, the immediate motion presents the procedurally rare-as-hen’s-teeth phenomena that, practically speaking, it ultimately does not much matter whether I grant or dismiss the motion. Regardless of whether I grant the motion or dismiss the motion, the genuinely important issue that underlies the immediate motion, which is a meta-motion, a motion about another motion, will remain to be determined. Practically speaking, the meta-motion is dysfunctional in the bringing of it and in the resisting of it.