If confession is good for the soul — a proposition about which I'm still unsure — I have to confess one more time to having once been a lawyer. Not that there's anything wrong with being a lawyer per se, which is a Latin phrase meaning "in itself."
Lawyers are, perhaps, the only people who still say per se. They use it because they can justify charging $500 an hour for spurious opinions if they sprinkle their conversations with Latin. I use it because I like italics and because some habits are hard to break. But I'd like to make it perfectly clear that Mr. Barnett doesn't pay me any more for using a dead language in my column.
As I was saying, there's nothing intrinsically wrong with being a lawyer. Many of them do good deeds and some of them are darned fine people. And, truth be told, much of the social stigma they carry stems from a gross misunderstanding of their role in the justice system, fostered by a group even more reviled — politicians — and people who have been fortunate enough to never need their services except in some perfunctory, clerical way.
Now I know this is going to sound cynical but you'll just have to trust me that it isn't meant to be and, if you've been roughed up by the rigours of legal training, it's really not cynical at all... just professionally amoral. Justice is a word we all use and think we know the meaning of. Justice is a noun that means, more or less, something that's, well, just, right, equitable, moral, lawful. It is a concept of morality based on ethics, natural law — whatever that is — equity and, in its most twisted incarnation, religion.
But justice is jargon in the legal trade. There's nothing pejorative about jargon, it's just ordinary words that have a special context within a given profession. All professions employ jargon both as shorthand and as mystery, in much the same way all exclusive clubs have secret handshakes and bizarre initiation rites.
Justice in the legal profession is a derivative term. Justice is what you end up with if two sides go to court, engage in battle, adhere to the rules of civil or criminal procedure and have a judge or jury render a verdict. Justice is the result. Whether the result is right or wrong — whatever those terms mean — is meaningless. Justice was done when the game comes to an end.
Hmmm... okay, even I have to admit that does sound cynical. Doesn't change the fact that it's true though.
Before, and for a long time during my legal education, I thought there was a precision to the law, a rationality to precedent that stood outside the temporal notions of right and wrong and could, with sufficient study, be divined from the often stilted language of legal opinions.
But a colourful, crusty senior partner I worked for gave me my real legal education. Preparing an appeal to the state supreme court, I dutifully researched the law on whatever point I thought the case turned on and, after exhaustive study, told him we were screwed. "The law's against us," I reported. "What are we going to do?"
He answered to the effect he was going to argue the equities of the case, argue his client deserved to win on appeal because that was the right — just — decision.
Before I could stop myself, the words "Are you nuts?" came out of my mouth.
His answer, delivered patiently, was, "If the law isn't on your side, argue the equities of the case."
He won.
Madam Justice Kloegman ruled in favour of Whistler Aggregates last week and against the RMOW in the latter's bid to seek an injunction declaring the production of asphalt to be contrary to the zoning in place on the land where the plant is located, south of town... right next to the neighbourhood of Cheakamus Crossing. In so ruling, the judge found the zoning — which is silent as to the production of asphalt and specifically states, "The following uses are permitted and all others are prohibited.... (emphasis mine, love italics)" permits the production of asphalt.
I'm not going to go into an analysis of the verbal gymnastics employed by the judge in reaching her verdict but will say her reasoning makes the gymnasts in Cirque du Soleil look like stiff, arthritic crones. Suffice it to say there appears to be enough wonkiness — what lawyers refer to as reversible error — in the decision to support an appeal and it might not be a bad idea to appeal lest others think they can roll into similarly zoned land and start manufacturing things even more unpalatable than asphalt.
But an appeal isn't going to help move the asphalt plant in question. That's because the real crux of the judge's decision isn't the cards she showed; it's the ones she alluded to.
The devil's in the dictum. Dictum is short for obiter dictum, yet another nifty Latin expression meaning "by the way." It's language used in a decision as an incidental or passing remark, words not essential to a decision but very likely indicative of where the judge is coming from.
The telling dictum in judge Kloegman's decision comes in the final paragraph where she writes," As I have found no basis for the statutory injunction, there is no need to consider the suitability of a trial on the equities (mine again) of enforcement."
What the judge is saying is, "I've bent over backwards to determine the zoning as written permits something it clearly doesn't permit so I don't have to consider how inequitable it would be to boot Frank off the land every senior manager at the RMOW has told him he can be on for the past two decades."
The clear message is if the RMOW has the temerity to appeal and wins, they're going to lose when it winds up back in her court because to do otherwise wouldn't be equitable, right.
So there you have it. Check and mate.
The legal well is dried up. If the Cheakamus Crossing residents want to move the plant, it isn't going to happen through the courts. That pretty much leaves paying Frank to leave, a proposition I don't think is going to resonate with the rest of the town's taxpayers, or convincing him it's in his best interests to leave, the tactics of which I'll leave to your imagination.
In the meantime, we'll see whether the improvements to the plant make life more palatable to the most outspoken minority of residents or whether some of the people still on the waitlist will get the chance they've been waiting for. But whatever the summer's discontent brings, it's pretty clear the RMOW has no power to move the plant so let's move on to things they actually can accomplish.
