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| Marcel Strigberger |
a. Order in the court
I practised in Ontario for ages, and I have never seen a judge using a gavel. Yet there is rarely a caricature of a judge without a gavel in his hand. Some have wigs. Gavels must be an American creation. Their real purpose? Probably protection. I’ve seen these mallets. A zealous litigant might think twice before lunging at the bench with their fingers. And for protection, a gavel definitely beats a wig.
b. What’s a continuance?
Apparently, when American lawyers want to reschedule a hearing, they ask for a continuance. (I casually draw this conclusion after recently binging Law & Order).
Here, we ask for an adjournment. This makes more sense to me as you are asking to postpone today, not continue. It also makes more sense to me because I am more familiar with adjournment than continuance. Now, let me continue.
c. Will counsel approach the bench?
Also no such creature in Canada. The parties might think the judge is having a private conversation with the lawyers to their respective detriment. Looks suspicious.
Here, if the judge wants a private conversation with counsel, he recesses the court and says, “I want to see counsel in my chambers.” This then really gives the litigants a good reason to feel something secretive is going on — and that their respective lawyers are trying to sell them out.
d. This comment will be stricken from the record
Another all-American feature, and an amusing one at that. A lawyer suggests to a witness charged with attempted murder something improper and irrelevant like, “And I understand, sir, that you have an automatic firearms collection,” After he cries “Yes!” before the opposing lawyer gets a chance to object, he demands and the judge orders: “This testimony will be stricken from the record. The jury will disregard this evidence.”
Like Dorothy said of the Scarecrow, I like this one the most. Here we have 12 people who are given the responsibility of determining whether a person goes free or possibly goes to jail, or worse. Yet the judge expects them to act like morons and willfully forget some of the juiciest testimony of the trial. Ugh!
In Canadian courts, nothing ever gets stricken from the record. The judge may merely remind the jurors during the final charge that they should not take this evidence into account. I am sure no Canadian jury would even think of rendering their decision with this tainted evidence when asked to disregard it.
e. The King v. The People
In the United States, the prosecution side of a criminal case is dealt with by the state’s inhabitants. The case will be designated something like People v. Brown or Texas v. Brown.
In Canada, the people are replaced collectively by “the King.” The court docket will read Rex v. Brown.
Our prosecutors are even referred to as Crowns. Americans call them District Attorneys or DAs. I prefer the American system as the Canadian one puts too much pressure on His Majesty. For example, if the culprit Brown shoplifts a tumbler of shampoo from a Walmart in Dallas, then it is the people of Texas who will prosecute him. When the knave Brown sees the docket reading The People of Texas v. Brown, he’ll no doubt get overwhelmed, and he’ll think twice before committing another larceny. Size does matter.
But if he were to pilfer in Edmonton, it would be Brown against the King. One on one. If he’s any sort of hardened criminal, I doubt he’ll be put off by a septuagenarian gentleman across the ocean waiving his finger at him and saying, “Shame, shame.”
Furthermore, prosecuting thousands of charges a year must put a tremendous strain on the monarch. Imagine the busy schedule he has performing his royal duties, like travelling to New Guinea to watch tribal dances or attending state dinners from Ottawa to San Francisco. The last thing he needs is to get a call from some police officer in Edmonton asking, “Your Majesty, what do you want us to do with Mr. Brown?”
Even if Walmart might want the charges dropped, it is the King himself who is the aggrieved party. When that rogue snatched the shampoo from Walmart, little did he know His Majesty King Charles might have to go next door to his wife, Queen Camilla, and say, “Excuse me dear. Can I borrow your Head & Shoulders?” It would therefore only be fair for the loss to be spread among all the people as it is in the United States.
f. Garb
In the United States, only the judges wear those black robes. Lawyers wear business dress. In Canada, however, in the higher courts, lawyers all don robes and white shirts with pointed ends and white tabs. We also have our own entrance into the courtroom. Wearing this outfit allows us unconditionally to go through that door that says on it, “Barristers entrance.” Thrilling, actually. You Americans don’t know what you’re missing.
And our confrères in England also wear those wigs, traditionally made out of horses’ hair. The theory is that barristers still wear wigs because they represent the history of the common law, allowing for a visual separation of the law from those before it. Sounds convincing. Then again, I always thought the British were eccentric. I’d pass on that horses’ hair. I think we lawyers can still enjoy this visual separation by simply going through those aforementioned doors. The door is good enough for me.
As I think about our respective court systems, they both have pluses and minuses. However, what does bother me a bit is the burden on the shoulders of His Majesty. All I can say is God save the King.
Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His book, Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging, is available on Amazon (e-book) and in paper version. His new book First, Let’s Kill the Lawyer Jokes: An Attorney’s Irreverent Serious Look at the Legal Universe, is available on Amazon, Apple and other book places. Visit www.marcelshumour.com. Follow him on X: @MarcelsHumour.
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