Supreme Court Justice Morris Fish is not going gently into the long night of retirement.
With his departure just weeks away, the senior judge from Quebec took a sharp jab recently at Justice Richard Wagner, the province's junior judge, in a homicide case featuring a hotly contested aspect of criminal law.
Writing for a 3-2 majority, Justice Fish accused Justice Wagner of botching the legal analysis in his dissenting judgment.
"My colleague's assessment ... is both incomplete and flawed," Justice Fish said.
The key issue in the case, R v Buzizi, was whether a trial judge should have permitted the jury at a Montreal murder trial to consider whether the victim provoked the accused into attacking him.
Writing on behalf of Justice Michael Moldaver and Justice Andromache Karakatsanis, Justice Fish said that the defence had "an air of reality" and, therefore, the jury should have considered it.
Justice Wagner concluded that there was no air of reality to the appellant's claim of provocation because his violent acts were not a response to a "sudden, unexpected, spontaneous and unforeseeable situation."
He urged his colleagues to show deference to the trial judge, "who is in the best position to determine whether the evidence is capable of supporting the necessary inferences is credible."
Justice Fish accused Justice Wagner of ignoring key aspects of the evidence that bolstered the notion that the accused was provoked.
In a modulated response, Justice Wagner cited case law to bolster his own view of the defence of provocation.
Ottawa lawyer Eugene Meehan, a Supreme Court expert, said that Justice Fish's unusual salvo at Justice Wagner, the court's newest appointee, brought to mind National Geographic nature shows where a tribal patriarch smacks around a "newly arrived young buck."
"Except this isn't National Geographic; this is the Supreme Court of Canada," Mr. Meehan said in an interview. "This was a high-water mark of juridical jabbing; something heretofore seen only in the U.S. Supreme Court."
Mr. Meehan also noted that Justice Wagner's elaborate minority reasons – which were considerably longer than those of Justice Fish's judgment – strongly suggest that either Justice Moldaver or Justice Karakatsanis switched their vote late in the game, abandoning Justice Wagner and helping Justice Fish to fashion a majority.
Mr. Meehan said that Supreme Court judges tend to control their adverse reactions to colleagues since they know that in future cases they will need to solicit each judge's vote in hopes of piecing together a majority.
"There will always be another playtime," Mr. Meehan said. "And if you want the playtimes to be productive, you have to play nice in the sandbox. But if someone knows it's their last playtime, the gloves come off."
Criminal law has always been a staple of the court's docket. As its ranking expert in the field, Justice Fish's imminent departure from the court is a major concern to the defence bar, which perceives him as the only judge on the court who consistently advocates for the rights of the accused.
Last year, he aimed another shot across the bow of a colleague at a legal conference hosted by York University's Osgoode Hall Law School.
In a speech that went unreported at the time, Justice Fish appeared to take on Justice Moldaver over a controversial position Justice Moldaver has espoused to the effect that the court system is being ground down by needless, futile challenges under the Charter of Rights and Freedoms from defence lawyers who pursue "mind-numbing" legal manoeuvring.
Justice Moldaver, a former defence counsel, invariably describes himself as a strong supporter of the Charter – but not of lawyers who "trivialize and demean" it by delaying cases and "pilfering precious legal-aid funds."
Without mentioning Justice Moldaver by name, Justice Fish referred in his Osgoode Hall speech to "a controversy that has arisen in recent years about when counsel shall make submissions under the Charter."
He urged defence lawyers to launch Charter challenges any time they feel it could advance a client's interests, and where there is a reasonably cogent case to be made.
"I suggest to you that it is part of the duties of defence counsel to test the perimeters of Charter protection," Justice Fish said. "I think it is counsel's duty to assist the courts in litigating Charter claims."