The 4th Monkey Adds

monkey_holding1     Some of you know that David had a large, framed, poster of a chimpanzee sitting on a large wooden case and drinking Anisette. You can see a version here. It’s the 3rd poster down. That isn’t me, or a known relative.

You might wonder what I seem to be considering. Perhaps it is one of the comments on this site.  Still, all things pass, in time.

Nonetheless, here are some thoughts to keep in mind. The source for each quotation is the case set out after the quotation.

The process of authorship is entirely different from that of judicial decision. The author, no doubt, has the benefit of a broader and comprehensive survey of his chosen subject as a whole, together with a lengthy period of gestation, and intermittent opportunities for reconsideration. But he is exposed to the peril of yielding to preconceptions, and he lacks the advantage of that impact and sharpening of focus which the detailed facts of a particular case bring to the judge. Above all, he has to form his ideas without the aid of the purifying ordeal of skilled argument on the specific facts of a contested case.

Cordell v. Second Clanfield Properties Ltd., [1969] 2 Ch. 9 at 16 (Ch. D.)

To a person untrained in law and evidence, these false trains of reasoning are highly meretricious. Once that poison is injected into his or her brain, there is probably no antidote. They even lure some with training.

R. v. Kusk, 1999 ABCA 49, [1999] A.J. No. 78 at para. 13 (Alta. C.A.).

I would add that there is an important difference between drawing an inference as to causation from circumstantial evidence, which is often done, and drawing an inference as to causation from no relevant evidence at all, which may be done only in the rare circumstances set out above.  This is the difference alluded to by Lambert J.A. in Haag when he distinguished between a logical inference and a legal one; the legal inference  should not be resorted to unless the logical inference is impossible to establish with either direct or circumstantial evidence.

B.S.A. Investors Ltd. v. DSB, 2007 BCCA 94 at para. 43


[A] case is only authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.

Quinn v. Leathem, [1901] A.C. 495 at 506 (H.L.)


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