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Supreme dress rehearsal

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|Written By Kirk Makin
Supreme dress rehearsal

James LeNoury had scarcely launched into his oral submission on a Supreme Court of Canada wrongful dismissal appeal when questions began to fly thick and fast. One of the jurists impatiently asked for his position on the appropriate standard of review. Another unleashed a salvo of questions about remuneration: “Why do you say severance pay wouldn’t make sense? How do you square that?”

LeNoury found himself momentarily thrown off course; an unhappy fate many a Supreme Court litigant faces when the bench begins to heat up. He faced a choice between two options: respond off the cuff or risk the ire of the panel by shunting their questions aside and plowing onward. LeNoury took a breath and tackled them one by one.

Luckily for him, however, the session was a dry run; a mock hearing arranged under the auspices of the Supreme Court Advocacy Institute. With the pro bono organization entering its 10th year of operation, its mock sessions have become an indispensable stop for many counsel heading to the Supreme Court.

Typically held about a week prior to an appeal, the sessions occupy a temporal sweet spot where legal arguments have gelled yet can still be changed.

The underlying philosophy behind the institute’s existence is that every argument can be enhanced by obtaining savvy feedback; that even the most silver-tongued lawyer is not immune to rhetorical excess or developing a tin ear when Supreme Court judges commence probing and challenging. “The Supreme Court doesn’t want to hear what you think,” says Shantona Chaudhury, co-director of the institute. “It wants to tell you what it has trouble with — and that is precisely what the advocate doesn’t want to talk about.”

Governor General David Johnston, centre, presented the Meritorious Service Medal (Civil Division) to Owen Rees, left, and Grégoire Webber, at Rideau Hall last December in recognition of their work in launching the Supreme Court Advocacy Institute.

One in every two Supreme Court appeals now features at least one lawyer who has been through a mock appeal arranged by the institute. In LeNoury’s case, his motivations for requesting one were typical of most participants. He wanted to work on his timing and gain a sense of the type of questions he might face.

Thus, one bone-chilling evening in January, LeNoury and co-counsel Avi Sirlin arrived at a conference room — lent by the Toronto firm Henein Hutchison LLP — and were confronted by a panel of three mock judges well suited to their role: Scott Hutchison, Jonathan Dawe, and Tom Heintzman. Between them, the trio of faux judges had a total of more than 60 Supreme Court of Canada appearances under their belts.

Hutchison commenced the hearing with a strict warning that oral submissions would end the moment his stopwatch signaled that an hour had passed. “If this were a play, we would be having the dress rehearsal,” he said. “The idea is to give a real sense of what might happen at the hearing in the Supreme Court. We will try to make this as realistic as possible.”

The plaintiff in LeNoury’s case, Joseph Wilson, had been let go in 2009 by his employer, Atomic Energy of Canada Ltd., with six months salary including severance. While the 38-year-old middle manager had been given no reasons for his firing, Wilson strongly believed it was because he had blown the whistle on allegedly corrupt practices at the federal agency.

A labour board arbitrator later found that Wilson was fired without just cause. AECL appealed the decision and won. LeNoury now faced the unenviable task of trying to overturn two subsequent lower judgments written by two respected workhorses: Justice James O’Reilly of the Federal Court of Canada and Justice David Stratas of the Federal Court of Appeal.

A key question involved a Canada Labour Code provision, added in 1978, that had enhanced job security for non-unionized federal workers. Historically, arbitrators had split in their interpretation of whether employers are required to articulate reasons for a firing. O’Reilly and Stratas had come down on the side of employers.

Dawe soon summed up the chief problem LeNoury would face before the Supreme Court: “How can you say that Parliament intended a system where a bunch of individual arbitrators go off in different directions, and it never gets resolved?” he asked.

LeNoury’s response nearly caused all three panel members to fall out of their chairs. He said that, based on his research, only eight of approximately 1,700 unjust dismissal decisions involving similar facts had sided with AECL’s interpretation of the provision. “That is absolutely central,” Hutchison said. “It’s not as if arbitrators are riven by a terrible problem that has never been resolved. Tell the court that this [provision] is a creature of Parliament and if Parliament doesn’t like the way it is working, it is Parliament’s responsibility and prerogative to step in.”

Once the oral portion of the session was over, a second hour was devoted to a wide-ranging discussion. Among dozens of tips, the panel suggested that LeNoury and Wilson compile a list of all 1,700 arbitration decisions to present to the court. They also encouraged the lawyers to urge the Supreme Court to leave well enough alone; to submit that arbitrators are perfectly qualified to adjudicate this sort of provision and reach a consensus on their own.

In addition, the panel cautioned LeNoury against rattling off the key points of his overview too quickly and to avoid referring to Justice Stratas by name. “He is a popular judge,” Hutchison said. “If I were you, I would just say ‘the Federal Court of Appeal’ instead of his name.”

Heintzman observed that the biggest mistake a lawyer can make in the Supreme Court is to insist on making a 60-minute speech while warding off any judicial attempt to take him off course. “If you cannot say what you have to say in 20 minutes and then have the rest of your time available for questions, you have done something wrong,” said Heintzman. “They will have questions. Don’t think: ‘Gee, I don’t want any questions.’ Instead, think: ‘Gee, this is great that I’m getting questions!’”

The panel said that judges invariably have read a formidable pile of bench notes, facta, and lower court decisions. Oral submissions constitute a brief, vital period when they can visualize the ramifications of their options and figure out how to fit them into existing jurisprudence.

“Will the Supreme Court panel be as interventionist?” LeNoury asked.

“Oh, yes, if not more,” Heintzman assured him.

LeNoury and Sirlin returned to their Bay Street law office to rework their submissions, focusing on crafting a more succinct overview and isolating a handful of key points. A week later, the two men felt a reassuring glow of preparedness as they settled into their seats in the Supreme Court. Sure enough, the judges wasted no time in taking LeNoury off script. He coolly rode the wave of their interrogation and later noted with satisfaction that his opponent had mistakenly attempted to forestall judicial questions.

“My observation was that, after a while, this did not sit well with the court,” LeNoury recalled.

The overall experience left him a convert to the virtues of the institute’s mock sessions. “Even if you have argued cases at other levels, appearing before the Supreme Court calls for a different approach to preparing your argument and preparing to present your argument,” LeNoury said. “It is invaluable to avail yourself of the preparation provided by the volunteer lawyers of the institute.”

The idea for an advocacy institute arose during a 2004 visit to Washington, D.C. by a group of Supreme Court of Canada law clerks. Two of them, Owen Rees and Grégoire Webber, toured the Georgetown Institute, where 90 per cent of attorneys who have upcoming appeals at the U.S. Supreme Court rehearse before nine mock judges in a replica of the courtroom.

Rees and Webber were keen to import the concept to Canada, but they foresaw many bridges to cross first. Where would they get a roster of experienced counsel to act as judges? Where would sessions be held? Would counsel be willing to risk exposing their appeal arguments and strategies? How would the institute pay its administrative costs?

Rees and Webber realized that in order to succeed in recruiting mock judges with unquestioned experience and savvy, they would need instant credibility. It occurred to them that Frank Iacobucci, a highly respected Supreme Court judge, had recently retired from the bench. “We asked him to chair the institute and he was very enthusiastic,” Rees recalls. “It would never have gotten off the ground without his support.” The institute was also able to attract a roll call of former Supreme Court of Canada judges for its honorary board of directors.

After some ad hoc practice sessions in 2006, the institute was officially launched in 2007. “We began with sessions in Montreal, Toronto, and Vancouver,” says Webber, now a law professor at Queen’s University.

“There was definitely an appetite. Initially, we helped counsel in 17 per cent of cases going to the Supreme Court. That doubled to 30 per cent, and then to 50 per cent.”

A nonprofit organization, its working board is composed of the chairperson of each province’s regional committee. Approximately 100 active advisers are available to stock panels. With a budget of just $6,000 and pro bono services worth an estimated $3 million annually, the institute is a marvel of low-cost efficiency and selfless professionalism. “The contribution made by the bar never ceases to amaze me,” says Webber.

“It is available to everyone,” Rees adds. “Whether you are in government or private practice; a big firm or a small firm; in Newfoundland and Labrador, or in B.C. Some counsel who have been to the Supreme Court of Canada well over a dozen times see this as a part of their practice.”

In 2011, Rees accepted a plum position as executive legal officer to Chief Justice Beverley McLachlin. He was replaced by Chaudhury, another former Supreme Court law clerk, who brought in new contacts, energy, and an outsider’s perspective. Chaudhury persuaded Webber that two volunteers — both of whom devote 250 to 300 hours of time each year — couldn’t run the institute on their own. They instituted a regional structure that could recruit and plan sessions in conjunction with their local bars.

Practice sessions are conducted in total secrecy. When more than one party in an appeal asks for a session, a fresh team of advisers is used for each. Potential mock judges are asked to do thorough conflict checks; a task that can sometimes present difficulties. “At some of the big commercial firms, for instance, half of the bar is conflicted out,” says Chaudhury. They typically spend four or five hours preparing, followed by a two-hour session. They get nothing in return beyond the satisfaction of contributing to their profession. “Wait, I think we gave them a mug once,” Rees corrects himself.

Where possible, says Rees, panels comprise one adviser with expertise in the field of law raised by the appeal and two who don’t, since non-specialist judges at the top court often ask the most telling questions during hearings. “If it’s a good question, it can make or break your case,” says Rees.

Some elements of the mock hearings, of course, do not mirror Supreme Court reality. Sessions tend to take place after work hours. Nobody is gowned and there are no court personnel, law clerks, or onlookers. In addition, only one side to each dispute is present in order to safeguard the confidentiality of participants and their legal arguments.

Lawyers arrive in search of different things. Some are keen to know about courtroom decorum. Others worry about whether they should address a judge by name or how to work the microphone on the lectern.

For those with Supreme Court experience, the exercise is not about learning how to pitch; their goal is to modulate the speed and trajectory of their pitch. Indeed, Hutchison — one of the top appellate lawyers in the country — is one of those who routinely sharpens his arguments in front of an institute panel.

Tough practice sessions can provide the best preparation for the potentially petrifying reality of a Supreme Court appeal, says Chaudhury. “Every lawyer’s worst nightmare is freezing up,” she says. “You are being attacked like you will never be attacked again. The advisers do not hold back. Part of being an advocate is to learn to get beat up and get back up again. At the sessions I’ve seen, the mooting part can be quite harsh. They are imitating the court, so they won’t necessarily cut you any slack.”

From the opposite side of the bench, judges notice a recurring set of errors and misapprehensions that institute sessions can help rectify, says SCC Justice Michael Moldaver. For instance, he notes that one of the most common mistakes counsel make is to misperceive the Supreme Court as being a court that tries to catch trial errors and ensure a correct result for the litigants. In fact, he says its role is to scrutinize the big picture: “It is not about what the law is. It is about what should the law be. It is about what’s best for Canada and Canadian citizens. I would say that just 10 per cent of what we do is error correction. The other 90 per cent is jurisprudential.”

Moldaver says many counsel are overly committed to their prepared script, mistakenly thinking the court will think less of them if they fail to consume their full hour of allotted time. Similarly, they feel that written facta will look deficient if they weigh in at less than the permissible 40 pages. “There are no bonus points for staying at the podium until the red light goes on,” says Moldaver. “If you’ve got two main points and cover them in 45 minutes and sit down, believe me, the bench will love you. And when we see a 25-page factum, it is a gift from heaven.”

Some counsel fail to appreciate that judges have carefully read through the voluminous case record. They have a distinct impression of the key legal points and a firm sense of the issues at stake. Judges are also likely to have developed a leaning toward one side or the other. What they are really seeking is guidance as to how they can design their ultimate decision so as to fit within existing jurisprudence. Oral submissions give them a chance to probe seeming contradictions or loose ends and tease out logical connections. Accordingly, Moldaver says, wise counsel respond to questions from the bench without slavishly keeping to a plan they mapped out in advance.

Adept counsel work hard to show the judges what is “both right and reasonable,” he says. “When making submissions, we are big on logic and common sense, not on hyperbole and in terrorem arguments. What are the ramifications for a decision? What impact is it going to have across the country? It is absolutely vital that we see well beyond the end of our nose. . . . Judges want to do justice. They want to do the moral and right thing. So, you try to find a theme; a pitch. If you can capture the moral high ground in a case, you are far ahead.”

In a 1998 speech to the Criminal Lawyers Association, then-justice Ian Binnie said the way an argument is framed can go a long way to determining the outcome of the appeal. Aim for too lofty a goal and one can easily lose the court. Better to restrict the target and provide the court with a jurisprudential map to get there. “A key to success in advocacy in the SCC is the ability to set the agenda,” he said. “In other words, to define the issue or issues raised by an appeal in a way the judges will find attractive that will motivate them to want to write in your favour.”

Binnie said lawyers often make the error of gazing exclusively at judges who sit in the centre of the dias or at those they perceive as “friendly” to their position. “You can’t afford to give up on any of the nine votes until it’s all over,” said Binnie. “You don’t know who is on your side until the judgment issues.” He advised counsel to also not waste time on generalities, nor should they be put off by vigorous questioning: “We didn’t interrupt you when you were preparing your factum. Now, it’s our turn.”

Proceeding with legal argument unimpeded by questions from the bench is not necessarily a good sign, according to Moldaver. “If the bench doesn’t ask any questions such that you are finished in half an hour, so be it,” he says. “It either means you have a sure winner or a dead loser.”

And while anxiety is entirely understandable, he says, the court “is actually pretty civil. We do not go out of our way to demean or belittle.” Which is not to suggest that a date in the Supreme Court cannot make even the boldest advocate quiver. “If you don’t have that feeling when the big door opens, you probably shouldn’t be here,” says Moldaver. “But there is a difference between being anxious and being numb. The best advice is just to relax, take a breath, and do the best you can. Be succinct, be light on your feet, and be true to oneself.”

With an appearance in the Supreme Court mere days away, lawyers tend to be so immersed in their arguments that obtaining an outside perspective can be essential. “It’s about getting outside of your own head,” says Chaudhury. “The problem is that counsel drink the Kool-Aid on their own case. While you have to be convinced or you cannot argue your case, the exercise of convincing and persuading yourself can drive you into a sort of tunnel vision.”

Prior to an appeal hearing last fall in R. v. Saeed, Alberta Crown counsel Melanie Hayes-Richard and Maureen McGuire attended an institute session in search of that all-important outside perspective. The Crown was the respondent in a significant appeal involving the ability of police to obtain body samples incident to a sexual assault arrest. The appeal raised an important area of the law relating to search and seizure, privacy, and bodily integrity — an area of law that is consistently modified and re-balanced by the Supreme Court.

The 26-year-old defendant, Ali Hassan Saeed, had been convicted at trial of threatening and aggravated sexual assault in the rape of a 15-year-old girl on May 22, 2011. Saeed was caught in the act when a friend of the complainant responded to screams outside her home and found Saeed in the act of raping her. Arrested and temporarily handcuffed to a steel pipe in a jail cell, police ordered Saeed to swab his penis so they could obtain a sample of the complainant’s DNA. Saeed was permitted to conduct the swabbing himself under observation of two police officers.

The Crown argued the warrantless search had been necessary because the complainant’s DNA would quickly deteriorate or disappear. The trial judge found that the swab was unconstitutional in that it did not meet the requirements of a warrantless search incident to arrest. However, she permitted the results to be admitted since it was carried out in good faith and society’s interest in the adjudication of the offence overrode the breach.

For McGuire, it would be her eighth appearance in the Supreme Court. It would be Hayes-Richards’ first. At their mock hearing, judges were Barry Zalmanowitz, a partner at Dentons LLP, defence counsel Nate Whitling, and Steven Penney, a criminal law professor at the University of Alberta. The session was lively and drove the two prosecutors into uncharted terrain.

McGuire says the institute session made her aware that she sounded too aggressive in certain aspects of her argument. She had toned them down for the actual appeal. In addition, McGuire changed her introductory remarks to focus on police tactics rather than the facts of the police investigation of the sexual assault itself.

“It forced me off my script and really challenged my knowledge of the case,” says Hayes-Richards. “It was incredibly valuable to get a feel for the types of questions I might be asked. It allowed me to prepare answers to specific questions in advance of the hearing, with specific case and paragraph references. You should never pass up an opportunity for positive feedback from your peers. It’s a real opportunity to find strengths and weaknesses in your argument and presentation.”

On Dec. 8, 2015, Rees and Webber found their assigned seats in Rideau Hall and waited for the ultimate recognition of the idea that had germinated a decade earlier. When their turn came, Governor General David Johnston presented them each with a Meritorious Service Medal for advancing the cause of justice.

“I don’t mean this to sound too grandiose, but this is really about access to justice,” Webber reflected after the ceremony. “The institute is about helping every client to be able to put their best foot forward.”

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