“The reality here is that you are dealing with a member of what was, in Venice, a despised minority,” pronounced Justice Ian Binnie. "Minorities have traditionally sought the protection of the law against majority. What you have in the play is the Christian establishment manipulating the law to destroy the individual.”
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This was Justice Binnie’s very real assessment of Shakespeare’s play The Merchant of Venice and of the fate of its principal character Shylock, a Jewish money lender.
At the end of the 2012 season, the Stratford Festival decided to give Shylock a chance to right the wrong he felt had been done him 400 years ago when Shakespeare wrote The Merchant of Venice. He was given a chance to argue his case under Canada's current legal system.
This one-performance-only event was simply called Shylock Appeals. Stratford imported a full cast of real lawyers and judges, some of the finest in the land.
The Festival theatre audience was full of other legal experts. They were there to see some of Canada’s preeminent litigators tap dancing without a safety net. It promised to be a lawyers version of Australian Rules football, no holds barred.
The story so far…
In the play Shylock, asks the court of Venice to enforce the contract he had made with Antonio, the Merchant. It was clearly set out in the contract that if Antonio could not pay his debt, Shylock would be entitled to a pound of flesh.
Antonio could not pay. He bared his chest and Shylock moved in with his knife, while Portia – the investigating magistrate – implored Shylock to show mercy.
Shylock would not. But in the original play, the verdict ultimately went against him and Shylock narrowly escaped the death penalty. Instead of getting his pound of flesh, all his worldly wealth was confiscated, he was commanded to convert to Christianity and banished from Venice.
That is where the play ends. It has been labelled anti-Semitic, and modern legal scholars have pondered the differences Canada’s Charter of Rights and Freedoms would make to Shylock’s case.
That is where Shylock Appeals begins.
The Supreme Court of Stratford
The judges shuffled out onto the stage and were prepared, in the spirit of the play, to show no mercy to the lawyers arguing the case.
On the far left of the bench was Patricia Jackson, a seasoned Toronto litigator. Next to her, Justice Ian Binnie – retired judge of the Supreme Court of Canada and a man, it turned out, who knows his Shakespeare.
At the other end of the bench, Dean Mayo Moran of the University of Toronto law school. Next to her, Earl Cherniak, who was named one of the 100 most “creative” lawyers in Canada by the Lexpert Guide.
And in the centre, reigning over them all in her ermine and scarlet robes, was Chief Justice Beverley McLachlin of the Supreme Court of Canada.
The case for Shylock
It was clear from the start that the audience was on Shylock’s side. Arguing for him was seasoned litigator Sheila Block.
With her little red high-school copy of The Merchant of Venice in her hand, she launched into a description of the injustice that any Jew living in Venice in the 16th century faced. Jews could not hold land or belong to any professional association. The only thing Shylock could do was lend money.
This was a case, Block argued, of injustice at the hands of the justice system. She put Shylock in the company of other famous cases of people wrongly convicted, including Rubin "Hurricane" Carter, Treyvon Martin, Stephen Truscott and Alfred Dreyfuss.
“These wrongs, she said, “stain the system of justice.”
The attacks from the bench came thick and fast. “Surely it is the height of judicial activism to permit an appeal after 400 years,” challenged Patricia Jackson.
Earl Cherniak posed the question, “is your client asking for the return of 3,000 ducats with compound interest for 400 years? Have you considered the effect on the perilous Italian economy?”
Block skated on and argued that Shylock was completely justified in his hatred of Antonio, the supposed victim in the case. Antonio had assaulted Shylock and hurled verbal slurs. He was a man “who dehumanized Shylock for the sport of it. The fact that he was loved by many was irrelevant. It is like saying Hitler loved babies and dogs,” Block said.
Shylock, argued Block, was simply seeking good old-fashioned, Old Testament revenge.
Justice Binnie counter-punched. “The abuse of the system to wreak revenge is not what a court of law is supposed to be about.”
The contract that called for a pound of flesh is clearly contrary to the Charter of Rights, Binnie argued.
Block conceded the point. But Shylock, she argued, had no idea of the penalties that were round the corner - the threat of death, loss of his religion, his property. As for the death penalty, “That is just not on. Even a government that likes to build lots and lots of prisons cannot reopen that debate.”
At that, the Festival theatre burst into applause.
Block waved her copy of the play for emphasis, chided Justice Binnie, curried favour with the chief Justice, and as the laughter built she finally sat down.
Alan Lenczner, arguing for the state and against Shylock, led off on the wrong foot. He pointed out that the State of Venice had appointed three women to this particular court, “but the two men” he added, “had been appointed on merit.”
The collective intake of breath from the audience was palpable. Madame Chief Justice Beverley McLachlin took aim. “Mr. Lenczner,” she fired, “is that your best point?”
It was an uphill battle for Lenczner from then on.
“Let me address the elephant in the room,” he said, “the Charter.”
This was not a case of religious discrimination, he said. “There was no general law preventing Jews from practising their religion.”
He also argued that the objective of the punishment handed out to Shylock of a suspended death sentence and forced conversion to Christianity was not discriminatory, but rather “behaviour modification.”
Shylock deserved what he got, Lenczner essentially said. Shylock wasn’t really worried about collecting his debt, “he was only concerned with revenge and the death of a competitor.”
In fact, Lenczner argued bravely, this was a commercial transaction, and banishing Shylock enhanced the Competition Act.
The judges descended on him. First Patricia Jackson: “Mr. Lenzner, are you saying forcing Shylock to convert to Christianity enhances the Competition Act? Do I have your point that the death penalty enhances the Competition Act?”
Mayo Moran added, “Is not the law that the penalty is imposed on a racially exclusive basis?”
Earl Cherniak said, “Are you saying vengeance is reason for a capital crime?”
Lenczner proceeded to dig himself in a little deeper. Sentencing Shylock to convert to Christianity is not antisemitism, he said. “It signals a deterrent to any merchant who seeks to impose his will on a competitor. In fact, the trial court gave Shylock exactly what he wanted. The right to collect his pound of flesh – but without spilling a jot of blood.”
“That is a ridiculous interpretation of the contract, Mr. Lenczner," thundered Justice Binnie. "Do you have another point?”
Lenczner sat down, bloodied but unbowed, to sympathetic applause from the 2,000 people in the Festival Theatre.
Law and justice
Anyone expecting a learned ruling from the judges on an issue that has split theatre-goers and legal scholars for 400 years was out of luck. This is a decision that would take time to work out – perhaps another 400 years.
In the meantime, there were preliminary comments from the bench. Justice Binnie led off.
“Shakespeare managed to persuade us to side with the majority against the minority to crush the Jew. Can you sacrifice the individual in order to uphold broad commercial reputation of Venice? That is the question.”
“I think I’m winning,” quipped Sheila Block.
“Shylock decided to seek a terrible revenge," pronounced Earl Cherniak. “Many think he was fairly treated, but the law he chose to invoke turned on him. While we must have sympathy for Shylock as a discriminated-against minority outcast driven to the brink, can we give him relief - that’s the question.”
“One, one,” said Lenczner.
Patricia Jackson was more decisive. She said in her view Shylock was out of luck. Waiting 400 years for the development of a more welcoming legal regime on another continent was taking things too far.
“But of course these are just preliminary observations, and I’m sure I’ll hear what I’m really meant to decide shortly.”
Mayo Moran pointed out that in the 1870s, the Albany Law Journal devoted issue after issue to the case of Shylock. “Questions of the relationship between law and justice, which is at the heart of the play, continue to preoccupy not only courts but teachers of law.”
The offending socks
“One of good things about being Chief Justice,” said Madame Chief Justice Beverley McLachlin, “is that once it gets to you all of the relevant and some of the irrelevant points have been made. So you are relieved of any duty to consider the merits of the case on your own.”
The highest judge in the land then went on to reflect on the art of judging. The play, she said, “evoked in me after 30 years of judging a central question which had never occurred to me. What is a good judge?”
She posited a good judge must be scholar and must be innovative. “It is wonderful to watch as Portia goes through this trial making it up as she goes along. I’m only now realizing this is quite a common thing in judges.”
The Chief Justice then posed a series of rhetorical questions: Should a judge administer the letter of the law, or should they be more flexible? Do judges simply apply the rules or does judging involve creative adaptive thinking? What about the charges today that judges are too activist? What is the role of judicial discretion vs. mandatory minimum sentences?
"These are questions that Shakespeare raised in this play and questions which still confront us.”
The Chief Justice interrupted the applause one last time to invoke the decorum of the court: “My colleague has pointed out that one of the learned counsel is wearing brown shoes with blue and black socks! Court is adjourned.”