One word comes to mind in tussle over judge’s writing: catfight

From Saturday's Globe and Mail



Because I continue to live like a squirrel, with almost all my worldly goods in storage pending the completion of the longest renovation ever, I can’t immediately lay hands on my collection of Elmore Leonard novels.

But I have read about half a dozen of his crime thrillers, enough to know that he’s among the best practitioners of his own Ten Rules of Writing, of which my favourite is No. 10, “Try to leave out the part that readers tend to skip.”

So when I read my Globe colleague Kirk Makin’s story last week, about a judge who purportedly has transformed himself into “a writer more in the vein of American best-selling novelist Elmore Leonard” – this is not necessarily a compliment in judicial circles – I was keenly interested.

While I have read a few judges I consider models of clarity and common sense, not nearly enough of them for my liking subscribe to No. 10, which is why so many decisions go on like trains stuck in molasses.

In any case, the judge whose writing is alleged to be “causing a rumble amongst traditionalists who favour solemn rulings,” turned out to be Ontario Court of Appeal Judge David Watt, in whose court I’ve often sat and whose judgments I’ve frequently read.

I’ve sometimes disagreed with Judge Watt (not that it matters, he being a judge and me not even a lawyer), but he is one of the best writers on the bench, and for my dough, always has been.

In fact, what first endeared him to me, many years ago when he was still handling big murder cases in the Ontario Superior Court, was the way he could work hockey into his remarks from the bench.

“You’re ragging the puck, Mr. Smith,” Judge Watt would say to a defence lawyer who was prattling on too long. Or, “You’re not seeing the ice, Ms. Jones” to a prosecutor blind to the big picture of a case.

These aren’t exact quotes; my point is that this is the sort of thing he would say. He’s a plain talker.

In any case, as I read the story carefully, I saw that the man most quoted as being critical of Judge Watt was one David Tanovich.

Now, Mr. Tanovich was identified in various ways – as a University of Windsor law professor; as a lawyer “who has argued almost 100 cases in senior appellate courts”; as a law clerk for former Supreme Court of Canada Chief Justice Antonio Lamer, etc., etc.

What I thought was probably at least as relevant was the fact that Mr. Tanovich appears to have close ties to another judge, Casey Hill of the Superior Court, who recently was overturned, rather resoundingly, by none other than Judge Watt.

Three years ago, Judge Hill, in a fairly impenetrable (only to non-legal eyes like mine, of course) decision that ran to almost 100 pages, acquitted a young woman named Ivana Levkovic on a charge of concealing the dead body of a child.

(Ms. Levkovic, a former stripper-turned-baker, cruelly twice has faced such an allegation, one baby of hers ending up found in a bag on her apartment balcony and another, a former boyfriend claimed, stashed in a freezer, then dumped in a river. She was twice acquitted.)

In any case, in acquitting her on the former charge, Judge Hill also struck down as unconstitutional a section of the Criminal Code and changed its wording.

Writing for a three-member appeal court panel last December, Judge Watt overruled Judge Hill and was kind enough not to name him, but said he had goofed, smacked him around a bit for subjecting the language in the code to “microscopic scrutiny,” allowed the appeal, and ordered a new trial for Ms. Levkovic.

Getting overturned by the appeal court is a big deal for many lower-court judges, who are often very pleased with themselves, and would be especially so if they’d gone and changed the wording of the code.

Enter Mr. Tanovich, who said of Judge Watt: “He is out of control. I am frankly surprised that no one on the court – including the Chief Justice – has said anything to him. I would not be surprised if there is not a judicial council complaint if he continues.” Mr. Tanovich also said that the criminal law is no place for lively writing, which “serves to sensationalize and desensitize tragic facts and serious social issues.”

Fair enough, but it seems to me Mr. Tanovich may have a bit of an oar in these waters and may be more sensitive to Judge Watt’s plain language once it was applied to Judge Hill.

He and Judge Hill, so recently slapped about by Judge Watt, write a book on criminal evidence together (with a third lawyer, Louis Strezos), McWilliams’ Canadian Criminal Evidence, now in its fourth edition. Judge Hill has also quoted Mr. Tanovich’s scholarly works with approval in decisions, as indeed he has at least twice modestly referenced the book they write together.

Judge Watt not so much; near as I can tell, he hasn’t cited Mr. Tanovich’s learned writings.

All of this is just me indulging in rank speculation. But it’s also why, when I read that story, I thought of the great Seinfeld line and shrieked aloud, “Catfight!”

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