Legal Research

Watt?s the Matter?

By Simon Fodden

The Globe and Mail reported today that there’s some dissatisfaction with the way Ontario Court of Appeal Justice David Watt has written a few of his judgments. According to the story by Kirk Makin, “some traditionalists” are upset because the judge has imitated novelists, which, according to some critics, might be okay if you’re Lord Denning judging contract disputes but not where criminal law is concerned.

Makin quotes from a few of Justice Watt’s opinions, including, for example, R. v. Yumnu, 2010 ONCA 637:

[1] Tung Duong and Dung Ton fell out over money owed and product misappropriated in their business ventures in drugs, prostitution and money-lending.

[2] Duong decided that he wanted Ton dead. Killed, along with Ton?s wife, Bon Bui, if they were together. Arrangements were necessary. Money to finance the job. A killer or two to carry it out. A weapon. A place away from public view. An escape plan.

The thing is, that’s all there is — in that case, at least. Just the opening à la Denning. After that it gets pretty much standard and less than gripping:

[80] To demonstrate an impairment of the right to make full answer and defence as a result of a default or delay in disclosure, an appellant must establish a reasonable possibility that the delayed or failed disclosure affected the outcome at trial or the overall fairness of the trial process: Dixon at para. 34; Stinchcombe at p. 348; R. v. C. (M. H.), 1991 CanLII 94 (S.C.C.), [1991] 1 S.C.R. 763, at p. 776. The reasonable possibility that the appellant is required to demonstrate must not be entirely speculative, rather must be grounded on reasonably possible uses of the non-disclosed evidence, or reasonably possible avenues of investigation that were closed to the appellant as the result of the default or delay in disclosure: Dixon at para. 34.

That seems to be a pattern in the few cases in which Justice Watt has gone “noir” — a paragraph or two at the opening done in crime novel style, then on to dry legalese for the rest of the judgment. See, e.g., R. v. Flores, 2011 ONCA 155, R. v. Luciano, 2011 ONCA 89, Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13. But Justice Watt is perfectly capable of starting out ordinary, as these two recent cases show: R. v. Levkovic, 2010 ONCA 830, United States of America v. Michaelov, 2010 ONCA 819.

Tempest in a teacup.

Full post as published by Slaw.ca on March 11, 2011 (boomark / email).