624 V O L . 7 5 P A R T 4 J U L Y 2 0 1 7 THE ADVOCATE
focuses on questions of law alone—Lambert J.A. often wears them off the
bench. Appellate judges often can’t resist the temptation to borrow the trial
judge’s glasses and, because they are not used to them, they sometimes see
his mice as elephants and his elephants as mice.
The magic glasses have some odd characteristics, e.g. they cloud over and
become opaque just before 10 a.m. so a seeing-eye clerk is required to lead
the judge to the bench. On arrival the judge is unable to recognize counsel
until they have put in an appearance, even though they may be friends of 30
years standing. (Of course counsel cannot be heard either if they are wearing
brown shoes or mini-skirts or ice-cream pants, like Peter Butler.)
An unfortunate feature recently forced upon judges enables them to see
the bottom line. Repeated invitations to view this phenomenon strains the
temper more than the eyes.
The right lens has a tiny aperture drilled in it through which the judge
can see the evidence as a whole.
The prettiest distant view is afforded by the zoom lens of the Future
Income Stream. This tends to overspill its banks when plaintiff’s counsel is
addressing the jury. In the same landscape is a mountain called Nonpecuniary
Loss. Several well-beaten trails lead up it, but there are signs posted
on them saying “Closed—By Order—Supreme Court of Canada”. Only one,
almost indiscernible trail, is open, and it is marked by a sign—Beverly
McLachlin’s Way—The Functional Approval to Non-pecuniary Loss.
Another trail marked “Danger” leads to the Rough Upper Limit. When you
look at the Future Income Stream and reverse the zoom lens you see the
present value of the Future Income Stream.
Any damages outside the range of the zoom lens are too remote. If a piece
of evidence shows only in a dim, blurred fashion it may be seen as part of
the res gestate. Images of obiter dicta are tricky. When a judge doesn’t like
a pronouncement of a higher court because it conflicts with his own view
of the law, he can take a second look, and behold, it turns out on closer
scrutiny not to be ratio but mere obiter dicta. The glasses are also quite
exceptional in their ability to distinguish the facts of one case from another.
They give an immediate reading on relevance and materiality. The trick
here is to close the left eye (closing both eyes for long periods of time is
sometimes almost irresistible but not allowed)—anyway, to close the left
and to focus with the right eye on the courtroom clock. If the evidence does
not fit within the evidence frame in the right lens then it is inadmissible.
This practice accounts for the high incidence of judicial clock-watching.
They also need to check the clock frequently to see if it is at this particular
point in time.