Taped inside my shiny new briefcase on my first day of articles was a mysterious fragment of paper. On it was a list of five names. This list was given to me by my articling principal (hereinafter Mr. X) and it comprised the names of the five most-feared judges in Toronto who would not permit students to speak to them in court.
At the top of the list and the most feared was the name (cue the theme from Jaws) Robert Dnieper. He is now deceased, but I don’t think he would mind if I refer to him throughout as Bob. This is not an indication of familiarity so much as regret that I did not get to know him better.
I first encountered Bob when I was sent to speak to sentence in Toronto’s suburban Etobicoke court.
Charged with ABH, the accused sat in the dock in leg irons and handcuffs. To my intense discomfort he decided he wanted a trial, which I could not do so I called Mr. X and was instructed to “hold it down ’til I get there.”
Judge Aaron Brown was on the bench that morning and he acceded to my request three times as the lunch recess approached with no sign of Mr. X. Several calls to him went unreturned as he often made it a habit to attempt to be in several courtrooms at Old City Hall simultaneously in any given morning.
When we reconvened, Judge Brown’s daughter had become seriously ill and he had hurried to her hospital bedside. As the replacement judge, with a daunting saturnine appearance that I was to come to know so well, approached his chair a murmur ran around the courtroom swelling into a whispered crescendo: “Dnieper, Dnieper, oh no, it’s Dnieper!”
There was frenzied movement as counsel hurried to change pleas, or beg the Crown for an adjournment. I confirmed this name on the List of Fear in my briefcase and spoke to duty counsel, who agreed to hold the matter down for me.
Our case was called and he relayed my status and my request. The judicial visage darkened with anger. Bob had this ability to appear to grow in size as he became angry like the cobra which expands its hood before it strikes.
“This matter has been held down three times since 10 o’clock this morning [it was now 2 p.m.] and this man [indicating the accused] is in chains. Why is it taking so long?”
Duty counsel advised he was not aware and reminded him that his honour did not deign to speak to students-at-law. In the first of many such “lucky” breaks I was to get over the years, his honour decided to make an exception. He would, I heard with a sinking heart, speak to me.
I somehow managed to acquire the ability to talk and indicated that my principal was on his way. That did not satisfy his honour’s concern for the comfort of my villain in the dock.
A barrage of cleverly phrased rhetorical questions followed which frustrated and angered me, culminating with: “Well, at noon I was there and now at two I am here. Just how long does it take for someone to drive from Old City Hall to Etobicoke?”
Remember those words, because they figure again in this story testifying to his honour’s legendary memory.
The most likely explanation was that the eccentric Mr. X was then driving a decrepit Oldsmobile which only had first gear and wouldn’t go faster than 15 miles per hour which he had borrowed from a client and as previously mentioned that he probably had several other matters scheduled and we were last on his list.
I did not offer these excuses, however. Instead I heard a disembodied voice tinged with anger, which turned out to be mine, say obviously sarcastically: “I don’t know. Perhaps Mr. X is a more careful driver than your honour?”
Pandemonium reigned. The Crown attorney dropped his file. The stenographer’s mask fell from nerveless fingers and it seemed as if all the air was sucked from the courtroom in a flurry of drawn breaths and expostulations imploring the mercy of God on my hapless soul.
From somewhere off in the direction of the bench, I heard the word “contempt.”
Now Bob was famous for his unusual dispositions and in this instance he decided that I should go and stand in the corner of the courtroom with my face to the wall. I responded that I would rather go to jail. Bob said no problem, he could arrange it.
After some negotiation however, we settled on my leaving the courtroom immediately but not the courthouse itself and that I should appear before him later in the day with my principal to purge my contempt.
I was confused because by this time I was not only being spoken to, but oddly enough also accorded some measure of respect. We attended later that day and a simple apology sufficed to my surprise; no lecture or out-of-the-ordinary grovelling.
That was Bob’s way. He would not permit abuse of the accused (at least until it came to sentencing perhaps, but that is a subjective issue) and he respected anyone who would stand up to him. That’s our job in criminal court, is it not, to stand up to the system of justice?
I think by now you get the gist of my defence of Bob and I will leave you with but one or two more indications that if you ever condemned him you may have acted rashly.
He had a reputation for harsh sentences and yet his conditions were strangely imaginative. In the court dealing with “offences involving women,” as it was then known, I saw him on several occasions hand out conditions to sex-trade workers which provided that they were free to go, but that they were not to frequent a certain area of Toronto. This effectively banned prostitution from the downtown core for reasons best known only to Bob, but it was better than jail.
On another occasion it was “Shoplifters’ Day” in Bob’s courtroom at Old City Hall. The well of the court was thronged with accused shoplifters and store security guards. Court was called to order and the Crown called a large and well-padded security guard to the stand and led him through the evidence.
“That’s the case for the Crown, your honour,” the Crown intoned, comfortable in his routine, after eliciting the facts surrounding the theft of $10 worth of curtain hardware from Kmart.
“Are you sure, Mr. Crown attorney?” asked Bob.
Nervously the Crown checked his notes. “Yes, your honour.”
“Are you absolutely sure, sir?” Bob asked.
The Crown checked with the security guard who shrugged and nodded. “Yes, sir, the Crown rests its case.”
“Well,” said Bob, “you failed to prove ownership of the goods and on that basis, I am dismissing this case. And, on the assumption that you would have made the same mistake in all the cases on the docket today had I not pointed it out, I am dismissing all of them!”
The Crown looked up horrified as the courtroom started to resemble New Orleans at Mardi Gras and around 40 or 50 accused shoplifters left the court celebrating their lucky break thanks to a man who, tyrant though he may have appeared on occasion, had a monumental respect for justice.
My next experience concerned a young man, obviously newly called to the bar. He pleaded his client guilty and sang the usual song: “Deprived childhood, absent father, poverty etc., etc.”
Bob, however, was not to be fobbed off with a lacklustre chorus delivered in a bored monotone, so he decided to make it interesting. “Well, that’s all very well, counsel, but what about s. 345 sub (1) sub (c) sub (iii) of the Criminal Code?” I don’t remember the exact cite, but you get the point.
Suddenly aware that this case was taking an unexpected and unpleasant turn, the hapless young lawyer looked up and awaited illumination. There was none forthcoming, which forced him to admit that he did not recall at that precise moment in any event just what this section provided.
“Well, then, perhaps you should look it up,” suggested Bob. When the young man was also forced to admit that he had no Criminal Code on his person, surely unforgivable at Old City Hall court, Bob was only too pleased to assist and had his clerk pass down his own personal copy.
This fellow sat down in front of me and after a while I noticed that he was leafing backwards and forwards in Bob’s book for an undue length of time. I looked over his shoulder and printed along the top of the page I saw not Martin’s Criminal Code, but something like Archbold’s Criminal Pleading.
I tapped him on the shoulder and passed him my copy of the code and suggested he might have more luck with that. My code was a couple of years old but I felt he would find the elusive section more easily there than in Bob’s mint copy of Archbold’s dated, on the frontispiece, 1927 if I recall aright.
Bob could not abide counsel appearing before him ignorant of the law or unprepared. Too much to expect? I think not and I am betting that the young lawyer became a better practitioner by virtue of Bob’s slightly underhanded trick.
My last personal encounter with Bob came as I made a no-doubt endlessly boring submission as to sentence for a client who pleaded guilty to bouncing quite a few cheques to stores for pairs of red, lady’s high-heeled shoes for which he had a fetishist’s appreciation. I noticed that Bob had turned his chair to the wall and I could see only the back of it. Thinking he had just over-swivelled, I stopped talking.
“Carry on, Mr. Brannan, I can hear you perfectly well,” issued in Bob’s sepulchral tones from behind the chair.
Now a little older than in our first encounter, I was justifiably offended and I replied that I had no intention of addressing my remarks to the back of a chair. He immediately swivelled back around and said, “Mr. Brannan, you are quite right and I apologize.”
He fined the client $10 per count, perhaps a total of $200; there were a lot of boxes of shoes on that evidence table. This was indeed a merciful gesture, perhaps even an extension of his apology to me. However, when in response to Bob’s query as to whether he needed time to pay the fine, my client responded, “Not if your honour will take a cheque.”
Bob chuckled and gently indicated that, in this instance anyway, the court would prefer cash.
Some 15 years or so after that, however, Bob glanced my way in the courtroom after two lawyers indicated that a matter had settled and they only awaited the arrival of certain funds which were coming by car from Hamilton.
Looking directly at me as he spoke, he asked “How long does it take someone to drive from Hamilton to Old City Hall anyway?” These were almost the exact words he spoke in our encounter in Etobicoke court all those years ago. You had to admire such a memory. Remembering the previous occasion likewise, I did not suggest a reply to my two colleagues who stood there obviously perplexed by the question.
I feared him to some extent at the time but I survived our little jousts and he made me a better lawyer. Now, close to retirement, I find that I actually miss characters like Bob who made life and the practise of law so colourful. At the very least, I have to say that while he was around I was never bored.
Stuart Brannan practises law reasonably successfully in Toronto notwithstanding the numerous telephone calls from his mother complaining that he never calls her. He can be reached by e-mail at [email protected].
