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Gail J. Cohen

Inspiration to act

In early December, Warren Winkler retired as the chief justice of Ontario. The man and his career were feted in a variety of ways including an Advocates’ Society 1,000-plus person farewell dinner that included dignitaries such as fellow Pincher Creek, Alta., denizen Chief Justice Beverley McLachlin. In advance of this splashy send-off, the society held a day-long symposium on the future of advocacy. While it didn’t address the future, so much, it was inspirational and a fitting tribute to “Wink,” who is well known for his skills of negotiation and conciliation.

What made the day inspirational were the lawyers and judges speaking about their work in advocating through difficult and uncharted territory. Winkler has been involved in some of the largest and most complex class action cases in Canada, including the Walkerton tainted water case, the Hepatitis C class action, and the Indian residential school issue. All were groundbreaking but the most important lessons learned from them, he said, was realizing part of access to justice for the people affected was allowing them to tell their stories. “It’s not just about money,” he noted, telling the story of breaking out the “biggest box of Kleenex,” the first time he listened to victims in the Hep C case.

These actions are big and messy and require a lot of mangement, but Winkler said much has been learned — most importantly that it is vital the judges who supervise the settlements “own the case until it’s finished.” By that, he means the settlement funds have all been distributed and the class members have achieved the “access to justice they deserve.” Winkler said it’s up to the judges to conduct reviews, troubleshoot, and basically keep everything on track. And most importantly, “make sure the remedy is user friendly.” Even though it is time consuming.

Two other symposium panels highlighted the tenacity of counsel fighting for justice against the odds. The three Canadians working at international criminal courts painted a vivid picture of how ad-hoc war crimes tribunals are pretty much a Wild West of rules and procedures making it an uphill battle to not only prosecute but defend cases being tried before panels of judges from different countries and legal systems. It’s a wonder they get anything done — but they do.

The final panel of the day included well-known Canadian advocates Joseph Arvay and disability rights activist David Lepofsky, as well as Baroness Helena Kennedy from the U.K. who has worked on domestic and international terrorism cases, and Lt.-Col. Jon S. Jackson, who was U.S. military counsel for Omar Khadr. They have all represented unpopular clients or causes but their passion to pursue what they believe is right, is astonishing. Particularly in the face of changing attitudes and laws regarding national security and anti-terrorism that are more reactive than proactive, Kennedy noted “it’s up to lawyers and judges to say it’s not right.” You can’t “vacuum seal those special emergency laws,” she said. They will lead to all sorts of other “bad stuff.”

But sometimes their passion isn’t enough. “I am very Zen about losing,” says Arvay, who will soon be arguing the right to die case at the Supreme Court of Canada. So how did Lepofsky deal with setbacks from courts and government? “We redefined the game,” he noted.

In one final burst of inspiration, I’ll leave off with a quote from the baroness: “We have to be the strongest proponents of access to justice because as lawyers, we know how important it is to have a voice and an advocate.”


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