One of the best lessons lawyers can learn is, know your judge.
I fondly recall a case I had where a client pled guilty to impaired driving. She operated a car after having consumed a glass of wine too many. Maybe two glasses. OK, so her blood alcohol level was about 3 times the legal limit.
Unfortunately she had a similar offence conviction 5 years earlier, drawing a fine. This time the judge remanded the case for sentencing, dropping a subtle hint that jail was a possibility, saying, "When you leave here next time you will not be passing GO and collecting $200.00."
My client was a young woman originating from the Maritimes. The judge was a visiting judge. I recalled the words of my student days' mentor, Henry, "It's not how well you know the law; it's how well you know your judges that counts most".
I asked around and all I could determine was that His Honour was a heavy hitter who especially abhorred alcohol offences. I also discovered that he was a tenth generation Ottawa native and that he was very proud of this fact.
The crown incidentally was out for blood. He was looking for something like a life sentence less time served. He would have been more favourably disposed to Lizzie Borden. At least she wasn't drinking while she was whirling that hatchet, doing a piñata on her parents' heads.
The big day arrived and with trepidation of the kind I had not felt in years I started my submissions:
"Your Honour. My client has committed a dastardly crime."
His Honour interrupted, looking over his moon shaped spectacles, "Yes and she will be punished accordingly. Continue counsel."
I resumed, "My client originates from Digby, Nova Scotia. Her family still remembers that great explosion in the Halifax harbour in 1917, just a year after the Parliament buildings burnt down."
"And that was quite the disaster wasn't it counsel. The pride of Ottawa’s architecture up in smoke, “His Honour commented.
“My very point your Honour, my very point. This woman's life has been filled with many disasters. She wanted always to be an artist. But in Digby opportunity was scarce. There were not many world-class museums, like the Louvre, the Rijksmuseum or the National Gallery of Canada in Ottawa. In fact the highlight of her teen age years was making that high school trip to Ottawa."
"She liked Ottawa, did she?" His Honour queried.
"She talked of nothing else. Every spring around the time of the Ottawa Tulip Festival, she would purchase a large bouquet of these delightful flowers to remind her of that lovely experience."
The crown attorney interrupted, "Well let her set up her bouquet in jail this spring Your Honour."
"Mr. Crown, where is your sensitivity? Go on Mr. Strigberger. Why did she drink and drive?"
‘I was getting to that your Honour. You see she had a number of paintings on display at an exhibition at a small museum in Toronto, on Parliament Street."
"There is a Parliament Street in Toronto?"
"Yes sir. There is even a market place, called Kensington. It's something like Ottawa’s Byward Market but they don't sell beaver tails. No pastry in the world holds up a candle to a Byward beaver tail."
"It certainly doesn't counsel. Beaver tails with powdered sugar. Heavenly. Go on counsel, I'm listening."
The Crown busted in again: "I say we send her tail to jail Your Honour."
"Counsel, do not irk me. I am trying hard to follow Mr. Strigberger' most interesting submissions. Go on please."
"Thank you sir. You see the public loved her paintings, especially her depiction of the Gatineau Hills country-side. It won a blue ribbon."
"There is scenery and then there are the Gatineau Hills", commented His Honour.
“Exactly Your Honour, exactly," I conceded. "And after the awards presentations the museum hosted a reception. A couple of toasts were made. My client realized she had drank a glass or two too many only after she got into her car and drove for a few minutes. She noticed she had difficulty reading the time from the Old City Hall clock tower. "
"Old City Hall clock tower?"
"Yes Sir, that Toronto cheap imitation of the Peace Tower."
"Oh yes, of course. Pure fake. Go on sir", His Honour said encouragingly.
"No it's not, Your Honour. It was built before the Peace Tower. The Peace Tower imitated the Old City Hall, and Big Ben," the Crown interrupted.
Triple bogey. His Honour took off his spectacles and eye-balled my friend. "One more display of this xenophobic attitude Mr. Crown and you'll find yourself up the Rideau Canal without a paddle."
I continued, "At that time she immediately tried to pull her car over. But alas she got arrested. I ask Your Honour not impose a custodial sentence. Thank you sir."
"Mr. Crown have YOU anything else to say?"
"Well, sir, I don't think..."
"Thank you sir. The offence is grave. But a judgment must be tempered with common sense and leniency where warranted. The accused is a poor young artist who came from a rather deprived area. Her heart was always in the right place. Just observe the subject matter of her paintings. She did not waste her time doing lighthouses. We cannot allow a moment of indiscretion to ruin her life. I order her to pay a fine of $100. She shall have reasonable time to pay. How’s ten years. After all she is only a poor artist, not the Royal Mint."
There is nothing like pleading a case before a judge with an open mind.