Lessons from Papa Hemingway

Like all of you, I read a lot of law every day. I have a job as a lawyer which requires me to know a bunch of stuff and I’m also a legal textbook writer. A steady stream of cases, articles, blogs and news­letters helps me keep up.

Today we are relentlessly pummeled by waves of information washing into our in-boxes. That is also how law is delivered now; I almost drowned in the spam I received from law firms warning me about Canada’s anti-spam legislation.

Thank goodness legal writing these days is focused on clarity and conciseness: We want to get through it with optimal efficiency.  But it’s not art. As Simon Fodden lamented on slaw.ca last year, legal writing is falling into predictable templates stripped of any individuality.

He wrote: “It’s far from easy to give expression to your style without rotting your argument, far from easy, instead, to make the lines of truth and beauty leave the parallel and suggest, at least, a convergence.”

He’s right, of course. I warn my students, most of whom are twentysomething millenials with facial piercings, that the cases I assign are not the same as novels, movies or TV shows. The primary purpose of cases is not to entertain, but to state the law. I also tell them that the latest federal omnibus bill and the legal textbook I asked them to buy likely won’t make next year’s Canada Reads list.

If law is truth and beauty is art, then, with rare exception, the twain does not meet.  For that reason, I was excited to hear about a new app called Hemingway; I was disappointed to learn that it is an editing program, not something that converts your writing into the style of Ernest Hemingway.

Hemingway’s minimalist approach is well-suited to the concise expression of legal ideas. I imagine that if the Supreme Court of Canada adopted a Hemingway-esque style for its written judgments, R v Sekhon, 2014 SCC 15, might read like this:

Ajitpal Sekhon drove a pick­up truck. He drove it across the border from Washington State into British Columbia. The customs officer saw that he was gripping the steering wheel hard. He was detained and the truck was searched. It contained 50 one-kilogram packages of cocaine in a hidden compartment. A key fob recovered from Ajitpal Sekhon was engineered to open the compartment. He was charged with unlawfully importing cocaine and possession for the purposes of trafficking.

The Crown called RCMP Sgt. Vincent Arsenault to give expert evidence. He had investigated 1,000 cases of cocaine importation.

“I’ve never known a case where the importer did not know he was importing cocaine,” he said. The trial judge admitted that statement into evidence.

Ajitpal Sekhon gave evidence in his own defence. He did not know about the cocaine or the secret compartment, he said. He was driving the pickup truck over the border for a friend. He didn’t know his friend’s last name.

The trial judge disbelieved Ajitpal Sekhon and gave weight to Sgt. Arsenault’s statement. In convicting, the trial judge also found that Ajitpal Sekhon had detached the key fob from the key chain, an incriminating act.

A majority of the Court of Appeal agreed with the trial judge. In dissent, Justice Newbury said Sgt. Arsenault’s evidence was anecdotal and irrelevant and even if relevant then highly prejudicial.

In the Supreme Court of Canada, the majority held that Sgt. Arsenault’s evidence of his previous experiences in cocaine cases was legally irrelevant and lacked probative value as to Ajitpal Sekhon’s knowledge. It should not have been admitted. However, there was a lot of other evidence on which to convict, so it goes. 

In dissent, the minority said it would have granted a new trial because an accused is entitled to be tried with only admissible evidence. The curative provision of s. 686(1)(b)(iii) should not apply.

Ajitpal Sekhon could hear his heart beating in the quiet of his jail cell.

Suppose, for the sake of the convergence of law and art, that the recent judgment in A.I. Enterprises Ltd. v Bram Enterprises Ltd., 2014 SCC 12 had been written as a scene from the HBO series True Detective:

RUST COHLE: The tort of “unlawful means” is like a flat circle. (Crushes beer can for emphasis.) The defendant engages in unlawful conduct against a third party and it comes around and harms the plaintiff, economically speaking. There are no principled exceptions. It always happened like this and it always will.

MARTY HART: You are one sick booze-aholic. If you were drowning, I’d throw you a barbell.

Now that’s entertainment.