Vivian Laaning Ch. 43

Vivian laughed heartedly at Rick's account of the Crown prosecutor's most unfortunate slip of the tongue by uttering the inappropriate cliché. She replied:

"Oh my! How droll. Is your other story just as funny?"

"Well as for my other example, the circumstances of the crime was funny in a macabre fashion."

Encouraged by such introduction, Vivian urged:

"Oh that sounds juicy! Please go on."

Rick then started his account of the other unusual case he had when practicing law in Timmins:

"Well the crime did have some unusual features. This was a case of two older gentlemen say in their fifties or maybe even in their sixties who were long time friends. One particular Saturday, as they had lots of alcohol on hand, at the residence of one of them, to pass the time they started drinking at 10:00 AM. And they continued drinking all through the day and long into the evening. They might have eaten something during this lengthy period of time, but it was incidental to their main preoccupation of imbibing alcohol.

"Needless to say that as the midnight hour approached, both of them were extremely intoxicated to say the least. So it happened that one of them recalled that he owed $50 to his buddy, and hadn't as yet repaid him. Thinking that this was as good an opportunity as any to make things right, he reached for his wallet and extracted two twenties and a ten dollar bill.

"The debtor offered the money to the lender saying: 'Here is the fifty I owe you. Take it!" Now the lender rather than accepting the proffered money replied: "Nah forget it. I don't need it.' Thereupon, followed a short exchange of renewed offers of repayment which was equally met by refusals of acceptance. Eventually the debtor gave up the ghost and returned the money to his wallet.

"Now for some reason the debtor was not pleased by this generous apparent forgiveness of his legitimate debt. Instead in his mind, he conjured up a horrible negative spin to the situation. As it was his home where they had been spending the time, he espied his loaded hunting rifle propped up against the wall, near the door leading to the basement. So he grabbed it and handed it to the lender saying in tears: 'What good am I, if I can't pay you the $50 I owe you? You might as well just shoot me.'

"And so the lender as he was standing up, shot the debtor while the latter was sitting in his chair. The shot was aimed at the debtor's torso, and I think went completely through the body. Miracle of miracles no part of the body that might have caused fatal stress was even grazed by the bullet.

"Anyway after the shot, the lender reloaded the rifle expelling the empty cartridge of the discharged bullet. He handed the rifle to his bleeding friend and simply said: 'Your turn!' Apparently the wounded debtor still had enough stamina to actually discharge the rifle and shoot his standing friend.

"And who says lightening doesn't strike twice? Despite sustaining a point blank rifle shot, the lender was not seriously wounded either. He was simply bleeding, and rather than both of them bleeding out, their blood clotted to prevent any further harm.

"Now after a little time, it dawned on one of them, not clear which one, that perhaps the thing to do now was possibly call the police or a hospital or maybe simply 9-1-1. Accordingly one of them, again it was not clear which one, did dial 9-1-1, and shortly the police and an ambulance arrived, and the two were whisked away to the nearest hospital. As neither of them suffered any serious injury they quickly healed and their hospital stay was of very short duration."

At this point, Vivian was laughing most heartedly at what seemed to her the most improbable scenario that she had ever heard. She couldn't help but ask:

"Is this really true? Did this actually happen?"

Rick replied:

"It might not have occurred as exactly as I've outlined since there were only the two of them involved with no one else present to witness this incident. As it was the debtor, who became my client, could not recall anything of the event; he was that drunk. All he could remember was that he was drinking with his friend and the next thing he could recall was waking up in a hospital bed.

"So the account I gave you was the recollection of the lender, as best he could recall as to what happened. The police took down his statement and made out a report . I think they were leaning towards just letting the incident go away, but they did hand the report to the Crown prosecutor for his determination."

Vivian continuing to laugh, but fascinated by the story, interjected: "So what happened next?"

"The Crown took the view that our society can not tolerate citizens shooting each other. So he charged them separately under the Criminal Code of Canada, for unlawful discharge of a firearms. He ordered separate trials so that each defendant would have his own counsel and thereby there would be no collusion between the defendants at trial.

"Now there's a few things different as to how criminal law is practiced in Canada compared to the United States. For one thing, criminal law is a power of the federal government and thus the Criminal Code is the same throughout the country. Felonies are called indictable offences and misdemeanors are called summary offences. The charge faced by my client and the lender were indictable offences.

"Now in an indictable offence, the accused has a choice as to how he wishes to be tried. He could elect to be tried by a Provincial Court (lower court) Judge, alone, or be tried by a Superior Court (known as the High Court) Judge, alone, or be tried by a Superior Court Judge and Jury. For the High Court trials, we lawyers wear robes reflecting our British law heritage, but we don't wear wigs as in the U.K..

"Now the lawyer for the lender elected for his client to be tried by a Provincial Court Judge. His reasoning was that it would require a sophisticated legal argument to win the case. I, on the other hand, believed that no Judge no matter the argument would allow an acquittal of the charges. He would be of the same mind set as the prosecutor in that we just can't let people go around shooting each other, no matter how the criminal statute is worded. On the other hand I believed that a reasonable juror would probably overlook the alarming nature of the incident, and feel that being stupid is not a crime."

Vivian concurred with Rick's assessment:

"Yes I can follow your reasoning on this. So how did it end?"

"Being before a Provincial Court Judge, the trial for the lender was expedited and occurred before my trial with the debtor. Not surprisingly, despite the best arguments the lawyer offered, the Judge wasn't buying it. He found the lender guilty and gave him two years probation plus 200 hours of community service. He also was prohibited from drinking during probation but he was able to keep any firearms he owed. I guess the rationale was that since the lender was not going to be drinking, he could be trusted to handle his firearms sensibly."

Reflecting her own set of priorities, Vivian remarked:

"Well that sure sucks! You'd think the Judge would at least allow the poor soul to drink while contemplating his sins. So what happened at your trial. Don't tell me you got your guy off?"

"Indeed my beautiful Vivian; otherwise there would be no story. The trial did not last very long as the jury selection was the longest part of the trial except for the jury deliberation. The lender was the main witness who testified in accordance with what I've already told you. There were no witnesses, but I did summon my client to testify. As expected he could not confirm nor deny the lender's testimony since he was so drunk that he had blacked out. So there was no reason to contradict the evidence of the lender.

"So the crux of this trial consisted of the addresses to the Jury by the lawyers followed by the Judge's instructions. As the defense lawyer I started by giving my viewpoint of the law as it applied to this case. I advised the Jury if the Judge contradicts anything I say about the law, where there is anything different, the Jury must side with the Judge's explanation of the law.

"I pointed out to the Jury that there are two elements of a crime that the prosecutor must prove to secure conviction. The first part is that a crime must have occurred which the law calls 'Actus Rea'. The second part is that the accused must have had the intention of committing the crime or in other words have a guilty mind which in legal terms we call it 'Mens Rea' must be present.

"So then I said to the jury: 'Let me give you two examples to illustrate the two necessary elements. If one says before witnesses, 'I hate Mr. X and I'm going to kill him' So the intention is obviously there but if you don't in fact kill him there is no Actus Rea, and so obviously one cannot be convicted of a crime if none hasn't occurred.

"Now suppose one is target shooting say at a gun range, and by negligence, stupidity or by accident some one gets in the line of fire and is consequently shot dead. The act of murder, Actus Rea is present but the shooter did not intend to kill the person. So there was no Mens Rea, and thus you can't be convicted of murder in such instance.

"Since drinking alcohol is a major component of this trial, I must advise that being drunk is not an excuse for asserting lack of intention. So if you're in a bar getting drunk, and getting angry you pick a fight with a patron. You have no defense to a subsequent assault charge by asserting you wouldn't have acted this way had you not been drinking. It goes without saying that a DUI predicates that one does not normally intend to drive when drunk. But if one is driving when one has been drinking then the intention to drive is there notwithstanding that the person realizes when sober that it is not prudent to drive in such case.

"Now in this case, there was no question that the argument these gentlemen engaged in was of the friendly type with no malice whatsoever. In other words it is the type of argument one has about who is to pick up the check in a restaurant wherein each disputant wants to pay. You will notice that the Crown asked the lender'...of course I used the lender's actual name but I have forgotten it. I think he was Irish."

Vivian chortled at this supposition and interrupted:

"Racist much? Are you subtly implying the stereotypical image of the Irish reputation of being drunkards exists, at least in this case?

Rick laughed and said:

"I understand you Americans are very sensitive in all things racial. We Canadians pride ourselves of being racial agnostics. Of course there are racists amongst us, but its considered bad form to identify persons in disparaging terms as to their race, ethnicity or origins."

Vivian replied seriously, but in an unguarded moment said:

'I have no comment to make on your assumptions of typical American racial attitudes. All I can safely say is that I'm truly a racial agnostic as you say. I've had black lovers as well as white lovers, but I've never sought out to have a black lover for the mere novelty of it. And I don't put much stock on any attributed mythical physical differences between the races with the obvious exception of skin color.

"I'll concede it is much more convenient in our society not to intermarry. Right now my sister is pregnant and she'll be delivering a biracial child. I'm absolutely certain that I shall love my new nephew or niece just as much as I love my brother's children."

Rick Sikorski was dumbfounded by Vivian's candor as well as her exceedingly insouciant statement. She had told him she was going into her final undergraduate year at UW which meant she was in her early twenties, and thus, much younger than he. Vivian had a very mature look to her, that he was absolutely surprised by her information as to her age. At his first glance of her he had surmised that she was at least a decade older than her apparent actual age.

Despite her youth, he was very impressed by her conversation and her comportment. For that reason, he invited her for dinner solely on the basis that it was better to share dinner with a delightful female companion than dining alone. Because of her age vis à vis his middle age, he was not expecting any sex as a result. However, given her nonchalant but blunt disclosure of her sexuality, he was almost certain, that she was signaling to him, that she was fuckable.

That being the case and the now desired outcome, it behooved him to place himself in the best possible light to ensure success. Just to make sure that he wasn't misunderstanding her apparent signal, he opted to maintain a lighthearted conversation. That way he could defuse possible tension arising from a mistaken assumption in case she might have regretted uttering her bold revelation. So he responded:

"Oh, I believe I can count myself in the racial agnostic camp. You see the lender's name was either O'Reilly, O'Connor or O'Grady. Hell it might even have been O'Keefe like the name of the beer I drank in my youth. Although I would have remembered that name for the reason I just suggested. In any case with such surnames being typically Irish, that was my sole reason for suggesting the nationality of the lender. It had nothing to with supposed reputations of Irish as heavy drinkers. After all my client, the debtor was French Canadian with the name of Belanger. By the way that brings up another difference between Canadians, and Americans."

"Oh? Pray tell!"

"Since Canada consists of one third French speaking persons, we Anglos per force pronounce French names, and words for that matter, the way French speaking people would pronounce them. Thus my client's name is pronounced as I just did, as 'Bay_lawn_jay. I understand that you Americans would pronounce the name as, Bell_inn_jer.

"In fact, I understand that some American families with their original surname of Belanger, having descended from French Canadian heritage, have changed their name to Bellinger to reflect the consensus American pronunciation."

Vivian answered:

"Oh wow! I didn't know that. That revelation has made this day truly worthwhile."

Rick answered adopting a fake pique:

"You mean to say Vivian that meeting me has not rendered this day worthwhile to you?"

"Oh my dear sir, you are misinterpreting my sentiment. I assure you that meeting you has made this day outstandingly exciting. What I just said had to do with my philosophy of a life well spent. It is my contention that you are truly alive if you increase your general knowledge daily, even if such proves to be trivial. If you do not do so, I believe that you are in danger of becoming stodgy and uninteresting."

"Aren't you a little young to hold such a profound and seemingly pessimistic view?"

"That maybe the case, but I fear we have digressed in our conversation. Perhaps you can finish your telling of what seems to be a most interesting case you had handled."

So Rick concluded his description of the case of the two drunks shooting each other:

"As I said, in my summation to the jury: 'You will recall that the Crown prosecutor asked the lender if he was angry with my client or whether the two of them were in a contentious argument. You will also recall that the lender appeared to have been actually non plussed by the question as he answered that no, there was no anger as far as he could tell, and bsides they were and still are the best of friends.

"So it is my contention that the two of them were so inebriated that they did not fully understand the potentially serious consequences of their actions. It is fair to say that my client believed at the time that since he was prohibited from repaying his debt that he ought to be punished for benefitting unjustly from a monetary gain. That is why he asked to be shot. When the lender after the initial shooting said, 'It's your turn' I think its fair to say that in the mind of my client, the request for shooting the lender was merely akin to shaking hands after having come to a resolution of the matter at hand."

Vivian commented:

"Oh wow! That seems like a potent argument for acquittal. How did the prosecutor combat your submission?"

"Strangely enough, the Crown in his closing argument chose to ignore my contention and the Judge in his instructions to the jury likewise made no reference to my argument. All I can say is that either they had no logical rebuttal or they thought that conviction was a certainty that it was best not to muddy the waters by engaging in an esoteric legal debate.

"I believe the latter assumption must have been the case. Since there were no spectators at our trial, and as none us expected a long jury deliberation, the Crown prosecutor and I remained in our seats and the Judge didn't leave the bench either. After an hour had passed, and the jury had not returned, the Crown prosecutor made the remark that it must give me some satisfaction that the jury is deliberating so long. Of course his implication is that I've done a good job sufficient to cause the jury to hesitate before rendering the certain verdict.

"The Judge, privy to this conversation, and no doubt getting impatient with the jury delay decided to hasten proceedings. So he said: 'Since we have some extra time, I want to try something I've never done in all my times at the bench. Why don't you two give me some inkling on your position towards sentencing. Just to save some time of course.' My main thought at that moment was 'yah sure I bet you've never done this before.'

"The Crown prosecutor advised the Judge the sentence meted out to the lender at his trial, and that he would be content with a similar sentence. I said I'd be probably ask for less community service time since my client was older and was probably less capable of fulfilling his obligations.

"The jury returned shortly thereafter and rendered a not guilty verdict. I smiled inwardly as I enjoyed the comeuppance to these two smug assholes. And of course I especially enjoyed vindication of my decision to seek a jury trial."

Vivian was enthralled by the story and also influenced by her alcohol consumption in an unguarded moment burst out:

"Bravo! My handsome stud Canadian lawyer!"

For the moment downplaying Vivian's enthusiasm, Rick added:

"A humorous dénouement occurred a few days after the trial. In Ontario there is a provincial government agency available for victims of crimes to seek compensation for crimes suffered, where the criminal perpetrator has no wherewithal, as is the case in most crimes, to make things right. My client came to my office to find out if he could make a claim to the board.

"I replied that I would think, that technically he would be entitled. After all he was indeed shot by his buddy who was subsequently convicted of the crime, an indictable offense no less. By the same token he was not convicted of any crime so he surely was a victim of a crime. Unfortunately the fact that he urged his buddy to shoot him would probably lower whatever award the board was prepared to recompense.

"My client asked if I would represent him at such a board hearing. I declined, as I pointed out that my fee would be in excess of any award he could realistically expect to receive. I advised him how he could apply and what to highlight in his application. I never heard from him again."

Although Vivian could hold her liquor, still the alcohol she had consumed during this meal had an effect on her faculties. As a result she was completely spellbound by Rick's accounts of his legal triumphs. So she gushed:

"Oh my Rick! That's a superb story. That's the kind of lawyer I'd like to become!"

For his part, Rick was also lighthearted as a result of his imbibing of spirits. Added to his euphoria was the delightful companionship Vivian afforded to him. He was enjoying a wonderful meal interlaced with sparkling conversation in which he confidently realized he shone. As already noted, when he realized how young Vivian was he had automatically dismissed in his mind the possibility of sex. Being closer to fifty years of age himself, he believed a tryst with her, was not only unlikely but also perhaps inappropriate.