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Courtrooms are peculiar places, filled with argumentation, deliberation, and full theatre throughout.

Our big hearing on Feb 23 was at 180 Queen Street, in Toronto, and it was an early morning show.

On first argument was Kevin Sartorio, lawyer for the Canadian Standards Association (CSA). This is usual, the party that brought the claim is invited to argue their position first.

So Sartorio went first, but we got the impression that he rarely gets to court. He was very nervous.

The courtroom is arranged with plaintiff (CSA) at a small table on the left side of the room and the defendant’s table on the right side. Legal counsel for both parties sit at these front tables with the actual parties themselves, such as myself, sitting immediately behind their respective tables. A common table is in the middle between the plaintiff and the defendant. Upon this common table is a speaking lectern. There was a small audience behind the tables, and amid this sat Sarah Eisen, the proxy for CSA’s General Counsel, R.J. Falconi.

Sartorio’s presentation was impressively unimpressive. It was a rather good delivery of a rather thin argument, but it wasn’t nearly to the standard one would expect of a top tier lawyer from a top tier firm charging top tier prices.

His gown was heavily wrinkled, noticeable from some distance away. It resembled those plastic rain ponchos, tightly folded into square packing and stored for seemingly ages and, when finally unfurled, the little rectangular creases are plainly visible in its use. It seems that Sartorio doesn’t get to court much. His client prefers to bully their betters into submission without ever nearing a courtroom.

The reality of having a difficult client is that no matter how strenuously their lawyer may counsel them against a course of action, if the client should stubbornly pursue it anyway its the lawyer that will get the blame for the legal corners these clients walk themselves into. Sartorio likely knew that if he blew this hearing he’d be blamed first by CSA and then by his own firm for risking the business of a well-heeled (taxpayer funded) client. Hence the nerves. And one can’t fault him for being nervous, I’ll be presenting soon enough and I’ll be nervous. The difference is that your correspondent has never made a court presentation before, whereas Mr. Sartorio is apparently an expensive expert at it. Then the expert got thirsty.

Just to the right of the lecturn, on the common table, was a plastic cup of drinking water. Sartorio reached for the cup. Your correspondent watched him closely. His hand was actually shaking.

The CSA argument to court was almost entirely confined to the text of the Copyright Act. There really wasn’t any consideration of applicability to, say, the public nature of law. Sartorio tried to offset this weakness by repeatedly arguing that the Act is an exhaustive defence, that other considerations, or ramifications, weren’t relevant to the issue. But the issue was whether public law exists in Canada and that, surely, is a powerful consideration indeed.

Sartorio again reached for his plastic cup. His hand shaking, he drained it, then paused his presentation to walk over to the plaintiff’s table, reached for a decanter and refilled his cup. We were less than a half hour into the hearing.

Then he made some unforced errors. We can’t commentate the full hearing for legal reasons, but we can offer glimpses of proceedings, somewhat entertaining in nature. Sartorio accidentally admitted the significance of the RestoreCSA website and then complimented it. He called our website “exhaustive,” then said “it’s actually amazing.” Thank you Kevin, we see you here regularly, you’re an avid reader. We surely appreciate the affirming words of CSA about this website, as delivered by their legal representative.

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