How do Canadian court systems and protocols differ from American ones? Let me count some of the ways.
1. Order in the court
I practiced in the Canadian courts for ages, and I have never seen a judge using a gavel in the courtroom. Yet there is not a caricature of a judge without a gavel in his hand. This must be an American creation.
I don’t know what the purpose of a gavel would be, in any event. The voice from the bench readily gets heard throughout. It’s not as if the courtroom is the size of Yankee Stadium. I believe the reason why the American judges have gavels is protection. They may not be Magnums, but I’ve seen these hammers, and a zealous litigant might think twice before lunging at the bench with his fingers.
2. What is a continuance?
Apparently, when American lawyers want to postpone or reschedule a hearing, they ask for a continuance. (I casually draw this conclusion after recently bingeing on Law & Order).
In Canada, we ask for an adjournment. This makes more sense to me, as you are more specifically asking the court to put the matter over—that is, to adjourn it. It also makes more sense to me because I am more familiar and comfortable with adjournment than continuance. Adjournment for me. Now let me continue.
3. Will counsel approach the bench
Also, no such creature in Canada. People watching from the body of the court might get the idea that the judge is having a private conversation with the lawyers to their respective detriment. In addition, I guess one party might have better ears than the other and thereby pick up the private conversation. He could then wink at his less-endowed opponent and all hell might break loose.
In Canadian courts, if the judge wants a private conversation with counsel, he recesses the court and says, “I want to see counsel in my chambers.” This then really gives the litigants a good reason to feel something secretive is going on behind their backs and their respective lawyers are trying to sell them out.
4. This comment will be stricken from the record
Another all-American feature. And an amusing one at that. We see a lawyer suggesting to a witness charged with attempted murder something improper and irrelevant like, “And I understand, sir, that you have an automatic firearm collection,” and after he cries “yes!” before the opposing lawyer gets a chance to object, he demands and the judge orders: “This testimony will be stricken from the record. The jury will disregard this evidence.”
I like this one the most. Here we have 12 people who are given the responsibility of determining whether a person goes free or possibly goes to jail—or worse. Yet the judge expects them to act like morons and willfully forget some of the juiciest testimony of the trial.
In Canadian courts, nothing ever gets stricken from the record. The judge may merely remind the jurors during his final charge that they should not take this evidence into account. I am sure no Canadian jury would even think of rendering their decision with this tainted evidence when asked to disregard it.
5. The king v. the people
In the United States, the prosecution side of a criminal case is apparently dealt with by the state’s inhabitants. In other words, the case will be designated something like People v. Brown or Texas v. Brown. (Once again, I casually draw this conclusion after recently bingeing on Law & Order).
In Canada, the people are replaced collectively and substituted by “the king.” The Latin designation is usually used, and so the court docket will read Rex v. Brown. Our prosecutors are even referred to as crown attorneys or simply as crowns.
South of the border, they’re district attorneys or DAs. I prefer the American system, as the Canadian one puts too much pressure on His Majesty the King. For example, if the culprit Mr. Brown decides to shoplift a tumbler of shampoo from a Walmart in Dallas, then it is the people of Texas who will prosecute him. When the knave Brown sees the docket reading The People of Texas v. Brown, he’ll no doubt get overwhelmed and think twice before committing another larceny.
All the people of Texas are certainly a massive force to face, more massive than even Walmart. But if he were to do the same thing in Edmonton, it would be Brown against the king. One-on-one. If he’s any sort of a hardened criminal, I doubt he’ll be put off by a septuagenarian gentleman across the ocean waiving his finger at him and saying, “Shame, shame.”
Furthermore, prosecuting thousands of charges a year must put a tremendous strain on the king. Imagine the busy schedule he has performing his monarchical duties, like traveling to New Guinea to watch tribal dances or attending state dinners from Ottawa to San Francisco. The last thing he needs is to get a call on his cellphone from some police officer in Edmonton asking, “Your Majesty, what do you want us to do with Mr. Brown?”
Even if Walmart might want the charges dropped, it is the king himself who is the aggrieved party, the victim so to speak. When that rogue snatched the shampoo from Walmart, little did he know His Majesty King Charles III might have to go next door to his wife, Queen Camilla, and say, “Excuse me, dear. Can I borrow your Head & Shoulders?” It would, therefore, only be fair for the loss to be spread among all the people as it is in the United States.
6. Garb
In the U.S., only the judges wear those black robes. Lawyers do not wear any specific outfit that would identify them as attorneys. In Canada, however, in the higher-court lawyers all don robes, white shirts with pointed ends and white tabs.
We also have our own entrance into the courtroom. Wearing the outfit allows us unconditionally to go through that door that says “Barristers entrance” on it. Thrilling actually. You Americans don’t know what you’re missing.
And our confrères in England also wear wigs, traditionally made of horses’ hair. The theory is that barristers still wear wigs because it represents the history of the common law, allowing for a visual separation of the law from those before it. Sounds convincing. Then again, I always thought the British were eccentric. I’d pass on that horses’ hair. I think we lawyers can still enjoy this visual separation by going through those aforementioned doors.
As I think about our respective court systems, they both have pluses and minuses. But what does bother me a bit is the burden on the shoulders of His Majesty. All I can say is, “God save the king.”
Marcel Strigberger, after 40-plus years of practicing civil litigation in the Toronto area, closed his law office and decided to continue his humor writing and speaking passions. His latest book is First, Let’s Kill the Lawyer Jokes: An Attorney’s Irreverent Serious Look at the Legal Universe. Visit MarcelsHumour.com and follow him at @MarcelsHumour on X, formerly known as Twitter.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
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