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The Advocates' Society Journal |
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(Summer 1999) 18 Advocates' |
The Advocates'
Society |
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Soc. J. No. 2, 13-20 |
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Feature
A Survivor's Guide to
Advocacy in the Supreme Court
of
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by the Honourable Mr. Justice Ian Binnie * |
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Editor's Note: The following is an edited text of the
first John Sopinka Advocacy Lecture presented to the Criminal Lawyers'
Association at |
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John Sopinka died almost exactly a year ago this week, and
it is very fitting for the Criminal Lawyers' Association to inaugurate this
series of lectures to perpetuate and to honour his great talent. It is a double
honour to have John's daughter Melanie here. She not only shares her dad's
feistiness but is, as her opponents have come to appreciate, a very
considerable advocate in her own right.
It seems somewhat less fitting that I should
be called on to give the first of these lectures. John Sopinka fit neatly into
the long line of heroic counsel reaching back to Edward Blake, and descending
through W.N. Tilley to John Robinette and others, including Bert Mackinnon and
John's contemporary, Ian Scott, in our own day. The most I can claim is that I
am a survivor, but in this room we are all survivors. What I have to say today
should therefore be seen as a survivor's guide to advocacy in the Supreme Court
of Canada.
The first point I want to make about John
Sopinka is that he was a man with an attitude - only in extreme circumstances
would he tug his forelock or use the phrase "May it please the
court." He liked to win cases. He didn't think it was his job necessarily
to give pleasure to the court. And he never knew when he was beaten. The last
occasion we worked together was at the Sinclair Stevens inquiry the year before
John's appointment to the Supreme Court. He was representing Mr. Stevens in his
personal capacity, and I did so in his government capacity. Of course, the
hearing in the end was, unfortunately, an overall disaster for
"Sinc." It was said that the only difference between the sinking of
"Sinc" and the sinking of the Titanic is that when the Titanic sank,
there was a band playing. John exhibited his usual defiance and resilience as
the icebergs closed in. In one of the numerous motions to exclude evidence,
which were invariably lost, John began by saying, "I have three arguments,
one is hopeless, the other is arguable, and the third is unanswerable."
The commissioner, somewhat impatient, said, "Well, why don't you just give
me your best argument." John said, "Oh, I am not going to tell you
which is which."
The mother of all juries
Another of John's great strengths as an
advocate was his ability to adapt his personality and strategy, depending on
what court or tribunal he was addressing. I only saw him once argue a case in
the Supreme Court of Canada. Instead of the usual "in your face"
style that he preferred before trial courts, he adopted an altogether more
conciliatory approach, pitching his case one way to one judge and another way
to another judge as he looked back and forth around the semi-circle of wintry
faces from end to end of the bench. Unlike some counsel, he didn't focus all of
his argument at the middle of the bench, where experience is deepest but the
votes carry no more weight. Like the experienced violinist that he was, he
played to every corner of the auditorium. It struck me then, as he challenged
each judge in turn, sensing who was leaning this way or that, that his argument
before the Supreme Court of Canada was very much in the style of a jury
address. An address, if you will, to the mother of all juries. It is a style
that works well at the Supreme Court. In some ways, the criminal bar, with its
constant exposure to jury work, is probably better adapted to arguing an appeal
before a court of nine judges than is the civil litigation bar.
But - I have to say this - there are some
important differences between an everyday jury and the mother of all juries. Some
lawyers seem to think they're talking to a group of nine people who have been
randomly picked off the street. This is carrying the jury analogy too far. Let
me list some of the differences.
First of all, you're not looking just to hang
the jury, you're trying actually to persuade a majority to your point of view.
You can't afford to give up on any of the nine votes until it's all over. You
don't know who is on your side until the judgment issues. John didn't abandon
his deck chair on the Titanic until the band played.
Second, don't be too rigid in your conception
of the argument. Unlike the case with a normal, everyday jury, you didn't
select the jurors; they selected you and your case because there are issues in
it they want to address. If you're a good advocate, you won't necessarily talk
about what you want to talk about, you'll talk about what they want to talk
about. You may think they've misread the "real point." If so, that's
their problem. Your problem is to win the case.
Third, this jury has a relatively short
attention span for secondary arguments. The present foreman joined the court 18
years ago. If at times he thinks he's heard it all before, it's maybe because
he has. Collectively, the present members of the court have been sitting there
for over 75 years. [See Note 1 below] A lot of your argument probably consists
of rehashing their old judgments. They likely remember more or less what they
decided. You too could move quickly if your old opinions were the subject matter
of the debate. There is really no need to recite once again the facts in
Note 1:
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Lamer C.J., appointed |
10 yrs. 3 |
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mos. |
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appointed Chief Justice |
8 yrs. 5 |
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mos. |
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L'Heureux-Dubé J.,
appointed |
11 yrs. 7 |
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mos. |
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Gonthier J., appointed |
9 yrs. 10 |
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mos. |
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Cory J., appointed |
9 yrs. 10 |
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mos. |
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McLachlin J., appointed
March 30, 1989 |
9 yrs. 8 |
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mos. |
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Iacobucci J., appointed
January 7, 1991 |
7 yrs. 11 |
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mos. |
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Major J., appointed
November 13, 1992 |
6 yrs. |
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Bastarache J., appointed
September 30, 1997 |
1 yr. 2 |
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mos. |
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Binnie J., appointed
January 8, 1998 |
11 mos. |
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Total: 75 yrs. 7 |
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mos. |
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Note 2: |
[1986] 1 S.C.R. 103. |
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The sundown rule
Fourth, keep in mind that in most cases the
Supreme Court operates on what I would call the "sundown rule." When
you start your submission at 9:45 in the morning, remember that the judges are
probably going to want to reach a tentative decision on the appeal before the
sun goes down. This procedure is driven, I think, by the logistics of operating
panels of up to nine judges and seems to be a practice shared by other final
appellate courts. [See Note 3 below] Courts of this size require the judges to prepare
and think in advance of the hearing. Once oral argument is heard, the court
wants to capitalize on some of the adrenaline pumping around the courtroom to,
as Justice Estey used to say, "get this baby airborne." The
"sundown rule" is a good thing from the lawyers' perspective. It
allows your advocacy real impact by giving you a voice in the decision-making
process at the moment it counts most. [See Note 4 below] The only difference
between the lawyers and the judges on the day of the hearing is that you don't
get to vote, and you have to leave our discussion when it's only half over.
Note 3: The United States
Supreme Court holds Friday conferences to deal with appeals heard during the
week, plus literally hundreds of certiorari applications, or so say the law
clerks: see Bob Woodward and Scott Armstrong, The Brethren (1976); and Edward
Lazarus, Closed Chambers (1998). I was recently told by a retired law
lord that the practice in our Supreme Court is comparable to that followed by
the House of Lords and the High Court of Australia.
Note 4: The Brethren, p.
167: the rule of thumb in the U.S. Supreme Court is that advocacy at oral
hearings sometimes loses appeals but seldom wins them. I don't think this
is true of the Supreme Court of Canada. Oral advocacy can move the court
both ways.
I used to be concerned as a lawyer that if
the court heard 15 to 20 appeals over a two-week period, the facts and
arguments would be a jumble before the judges really focused on my case. I
didn't appreciate the "sundown rule." My anxiety was aggravated by
the length of time between the hearing and the ultimate rendering of the
court's decision, which at one point in the mid-1980s occasionally stretched to
a year and a half or more. My mistake was not to distinguish between the
initial decision-making process and the more leisurely reasons-writing process.
In the months following the hearing there is a lot of writing and rewriting,
[See Note 5 below] and there is debate among the judges who sat on the case
about how propositions should be formulated and what should be put in and what
should be left out; there is supplementary research done on points of
difficulty, and the air is filled with memoranda to and fro among the judges.
Opinions are modified. Minds are changed. If the court is closely divided on a
particular appeal, the outcome could shift. But all of this is not your
responsibility. As a practising lawyer I never cared much about why I won or
lost. What counted to the client was the result. Getting "this baby
airborne" in the right direction as soon as practicable after your
submission is what the "sundown rule" is all about.
Note 5: Judges want to
know the views of colleagues before starting to write. The view
attributed to Frankfurter J. is quoted in Lazarus, Closed Chambers, at p. 323:
"When you have to have at least five people to agree on something, they
can't have that comprehensive completeness of candour which is open to a single
judge giving his own reasons untrammelled by what anybody else may do or not
do. Brown v. Board of Education is an outstanding example where Warren
determined that the court would give a unanimous decision without separate
concurrences and in a rhetorical style calculated not to give unnecessary offences
to the South. As a result, Brown is a short, flat and almost unexplained
opinion."
The court conference
If you understand a few things about the
court conference that takes place after the hearing, it should help you
structure your approach to oral argument, to our collective benefit. The
dynamic of the court conference is probably a function of its size. You have up
to nine opinionated people trying to persuade each other about the correct
legal result. The advocacy never stops, it just becomes more blunt. The court
conference is a little bit like a family dinner where the arguments continue
after the guests have left and the gloves come off.
From the judges' perspective, the appeal has
gone through a process of ever-increasing distillation and concentration. At
the time of the initial preparation, an enormous amount of paper is flowing
around. Bench memos are written, the facta are gone through, the leading cases
are looked at, and the judges come to terms with what the appeal is all about.
The oral hearing is still more focused. When the argument moves back into the
conference room, it is distilled down to its most critical essentials. Thus,
oral submissions should narrow, not broaden, the area of controversy. Judges at
the oral hearing do not really need to be harangued in generalities as if they
were bystanders at a public meeting. As a respondent, I used to like starting
my submissions by saying, "Let me take a few minutes to set out where my
friend and I agree and where we disagree." I would then do a tally of
where we stood on the issues. I thought this opening created the illusion of a
responsible individual open to reason and ready to focus on the issues
ultimately in dispute. That is how I saw myself. The judges apparently saw me
differently. I am told that when I was appointed, Justice Major said to the
Chief Justice, "Tell Binnie he won't have to shout at us any more."
At court conferences the judges speak in
reverse order of appointment. [See Note 6 below] The junior judge goes first.
This is unlike the Supreme Court of the United States, where the Chief Justice
speaks first. [See Note 7 below] In a recent book on that court, [See Note 8
below] Edward Lazarus argues that the two great prerogatives of the Chief
Justice of the United States in relation to his colleagues are, first of all,
the right to speak first (because, of course, then he or she gets the
opportunity to define the issues and to give an indication of how a decision
should be written, whether narrowly or broadly, what kind of issues have to be
resolved, and so on). The second great prerogative, it is said, is the
assignment of the writing of the opinion, which, Lazarus claims, can become
manipulative. [See Note 9 below] In an earlier book, The Brethren, it was said
for example that Chief Justice Warren Burger was careful to stay away from
Douglas, Brennan, or Marshall when it came to writing a decision under the
First Amendment or the Due Process clause. Chief Justice Burger preferred to
give the assignment to his more conservative colleagues. [See Note 10 below] It
will be clear to you that on our court, by contrast, there is no insurmountable
inhibition on any of the judges picking up a pen, or at what length. The Chief
Justice allocates the writing of the principal opinions, but apart from
seniority where insisted upon, the exercise is generally open and largely
consensual.
Note 6: This seems to have
been the English tradition since Tudor times. In The Lion and The Throne,
The Life and Times of Sir Edward Coke, Catherine Drinker Bowen writes of the
Star Chamber at p. 109: "Judgment was delivered seriatim, as in a jury,
with the least important man speaking first and so on up to the Lord
Keeper."
Note 7: Apparently the
Chief Justice also had to keep the minutes. See The Brethren at p.
64. The following thought is attributed to Chief Justice Burger: "It
was hard to participate fully in the arguments, lead the discussions, and at
the same time keep precise track of the Justices' votes and positions.
Since no one other than the Justices was allowed in the conference room, he had
to do it alone."
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Note 8: |
Closed Chambers (1998). |
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Note 9: |
Closed Chambers, p. 354. |
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Note 10: |
Ibid. |
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In our court conferences there is a fair
degree of discussion about the points that have been made as well as points
that may not have been made in the oral argument. Chief Justice Rehnquist, in a
television interview with Charlie Rose about Rehnquist's newly published book,
certainly came across as a "no nonsense" type of character. In his
view, according to the recent study, [See Note 11 below] little importance is
attached to the discussion at the court conference. He thinks the judges are
sufficiently opinionated and independent that they are not going to change
their minds based just on what their colleagues think. He says to his judges,
why don't you just tell us where you are at, which way you are going to vote,
and then we'll get on into the writing phase and "the details will emerge
in the writing." The Canadian style is more discursive. Parts of the oral
and written submissions are frequently referred to around the conference table.
What you say, or fail to say, does make a difference.
Note 11: Closed Chambers,
p. 285: "Rehnquist actively discourages discussion or debate at
conference. In his assessment, the Justices' views were determined
beforehand and a lot of talk wasn't going to change anybody's mind. As
Scalia admitted with a note of disapproval, 'To call our discussion of a case a
conference is really something of a misnomer. It's much more a statement
of the views of each of the nine Justices.' Rehnquist was fond of saying
that once the Justices voted, the details of any particular ruling 'would come
out in the writing'."
There is nothing new about this description
of the court conference. What is surprising, I think, is how few counsel,
myself included, really put their minds to how to use an understanding of the
process in the design of their written and oral arguments.
Oral advocacy
John Sopinka's extensive writings on
appellate advocacy [See Note 12 below] provide a pretty good insight into how
to conduct an appeal in the Supreme Court of Canada. John tells you how to
write a factum and construct a winning argument. I don't want to go over ground
which he and others like Justice John Arnup [See Note 13 below] have already
covered so well. In a forum like this, to paraphrase Professor Albert Abel,
[See Note 14 below] you have to choose between tedious particularity and
overarching generality; I am going to stick to "overarching
generalities." I want to suggest a few dos and don'ts that may help you to
survive your next hearing in the Supreme Court and live to docket another day.
Note 12: "The Many
Faces of Advocacy," The Advocates' Society Journal, Hilary Term, March
1990, vol. 9, no. 1; "The Conduct of an Appeal from the Perspective of
Counsel and Judge," The Advocates' Society Journal, Hilary Term, March
1992, vol. 11, no. 1; "Advocacy in the Top Court," The National, May
1995, vol. 4, no. 4; Sopinka and Gelowitz, The Conduct of an Appeal, 1993
(Markham: Butterworths, 1993).
Note 13: The Law Society
of Upper Canada Gazette (1979), at p. 27. Justice Arnup's article is an
excellent source of wisdom about advocacy as well as plenty of entertaining
anecdotes.
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Note 14: |
15 University of Toronto
Law Journal, at p. 102. |
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The key to advocacy is focus
A wonderful metaphor was used by an American
lawyer by the name of John Davis, who used to argue regularly before the
Supreme Court of the United States. He drew an analogy between the appellate
advocate and a fly fisherman: "In the argument of an appeal, the advocate
is angling, consciously and deliberately angling, for the judicial mind.
Whatever tends to attract judicial favour to the advocate's plea is useful.
Whatever repels it is useless or worse. The whole art of the advocate consists
in choosing the one and avoiding the other." [See Note 15 below] This
piscatory metaphor was formulated with the U.S. equivalent of the "sundown
rule" in mind, but it applies equally to our Supreme Court, and is as
concise a definition as one can find of the kind of focus that was
characteristic of John Sopinka's arguments.
Note 15: John Davis, The
Argument of an Appeal (1940), 26 A.B.A.J. 895, quoted in Arnup, supra.
Look at your appeal from the judges' perspective
You might be surprised at how many
practitioners apparently fail to reflect on why leave was granted in an appeal
that is not as of right. In my short time on the court, there have already been
occasions when the legal issue that the court expected to be argued in a
criminal case was ignored by the appellant. If the respondent saw the issue, he
or she wasn't about to volunteer it. Perhaps the court's practice not to give
reasons in disposing of leave applications contributes to this problem, but
most Rumpole-like survivors spend at least some quality time thinking about the
appeal from the court's perspective. Everybody knows - or should know - that
leave isn't usually given to sort out the facts. There may be all kinds of
cases that appear to you to be wrongly decided on the facts that appellate
courts can do little about. The Supreme Court has neither the mandate nor the
capacity to retry the case. If leave was granted, there must be more to your
appeal than your overwhelming sense of grievance at the courts below and your
desire for vengeance in what we used to call the "Big House." The
"mother of all juries" has a heart of gold, but submissions that
ignore the limits of appellate review will get short shrift at a court
conference.
Don't assume everyone agrees about what the issue is
A related point: some counsel operate on the
assumption that everybody will ultimately agree on what the argument is about.
This is a mistake. A key to success to advocacy in the Supreme Court of Canada
is the ability to set the agenda, in other words, to define the issue or issues
raised by the appeal in a way that the judges find attractive and that will
motivate them to want to write in your favour. [See Note 16 below] It helps, of
course, if your argument also lays out a path by which the writing part can be
accomplished.
Note 16: Counsel writing
leave applications, in particular, need to keep this in mind.
Some trial lawyers think appellate advocacy
is about supplying answers to questions that arise naturally and inevitably out
of their fact situation. My experience, such as it was, demonstrated, sometimes
unhappily, that there is nothing inevitable about the issues on which an appeal
ultimately turns. It is possible in some cases to define issues on which there
is general agreement. I illustrate my point by a recent case called Cuerrier.
[See Note 17 below] This was a criminal case in which the accused was charged
with sexual assault for having unprotected sex with two complainants, one of
whom he had actively misled as to his HIV status, while to the other he
deliberately failed to disclose his HIV status. The lower courts acquitted on
the basis that the women had ultimately consented to sex, and therefore no
assault occurred. The Supreme Court unanimously allowed the appeal, holding that
as a matter of law it would be open on the facts to convict the accused of
sexual assault, and ordered a retrial. Three judgments concurred in the result.
This offended at least one editorial writer, who argued that the fact Mr.
Cuerrier
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Note 17: |
R. v. Cuerrier, [1998] 2
S.C.R. 371. |
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may wilfully have endangered others is certainly the sort
of behaviour the criminal law must punish, and severely. And the court unanimously
agreed that Mr. Cuerrier should stand trial for assault. But how they got to
that result is even more vital than whether or not Mr. Cuerrier is eventually
convicted. In this single decision, the court gave three opinions that ran
the gamut from feminist radicalism to traditional common law conservatism.
[See Note 18 below] |
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Note 18: |
Ottawa Citizen, editorial,
September 10, 1998. |
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I have learned over the past year the truth
of the saying that it is unwise to argue with people who buy printer's ink by
the ton. Nevertheless I have to tell you that the editorial writer missed the
point when she complained that the judgments confused matters by providing
different answers to the same question. The point is that the judges were
focusing on different questions. At the risk of oversimplification, let me
illustrate my point. Those judges who stood accused of "traditional common
law conservatism" looked at the 1983 amendments to the Criminal Code, the
introduction of the word "fraud" into the list of factors in s. 265
of the Code capable of vitiating consent to an assault, and interpreted the
"fraud" amendment as introducing a more flexible test that
nevertheless takes its colour from the context of a physical assault. They
thought the dishonesty of an accused has to be such as to expose the victim to
a significant risk of serious physical harm. Here, the duty to disclose
increased with the potential gravity of the health consequences from
unprotected sex, and AIDS stood at the head of the line.
What the editorial writer considered
"feminist radicalism" was a set of reasons that in fact turned on a
different interpretation of what the case was really all about. In this view,
the intent of the 1983 amendments was to recognize and affirm the physical
integrity and individual autonomy mainly of women, but also of men, and the
question was how to give effect to this broad purpose. Having posed the
question in this way, it easily followed that autonomy and bodily integrity
should not be violated as a result of fraud of any description. The deception
was not limited to physical harm. The vitiating deception would extend to
almost any "dishonest act" that induced the consent. The premise was
that Parliament considered the common law to be too narrow and intended to draw
entirely new boundaries.
The third concurring judgment thought that in
1983 Parliament intended to somewhat modify but not to throw out the
traditional limits of the old law. The question was how far could the court
push the interpretation without exceeding Parliament's limited expectations. In
effect, from this perspective, the question was where to draw the line on
judicial activism. The court should be conscious of its policy limitations. Proceeding
incrementally, the notion of fraud could legitimately be expanded to include
deceit about the risk of infection of a venereal disease, including AIDS. More
radical expansion would put in question the respective constitutional roles of
Parliament and the courts. A different framing of the question begat a
different solution.
Running through all three judgments was yet a
fourth question: "Should the criminal law be messing about in what is
fundamentally a public health issue? Could criminalization of some aspects of
unprotected sex chill compliance with reporting requirements and undermine the
ability of the public health authorities to deal with a very serious health
problem?"
Three judgments. Three quite different
perspectives on how to characterize the real issues underlying the appeal. My
point is that your role as the advocate is to do your utmost to get all members
of the court on the same page, asking a question to which the only reasonable
answer favours your client. Beyond that, Cuerrier shows that in a particular
case there may be many routes to victory, and you should not overlook any of
them.
Nailing the jelly to the wall
The same issue can be presented differently
in different appeals. The outcome may depend on how successful you are at
nailing the forensic jelly to the wall in a particular case. Take, for example,
the third potential question in Cuerrier, namely the respective constitutional
role of Parliament and the courts. The issue is full of ambiguities and surfaced
in different ways in at least three other appeals that I survived before the
court over the past fifteen years, one for the government, [See Note 19 below]
one against the government, [See Note 20 below] and one for the Speaker of the
Senate. [See Note 21 below]
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Note 19: |
Operation Dismantle, [1985]
1 S.C.R. 441. |
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Note 20: Thomson
Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877.
Note 21: New Brunswick
Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1
S.C.R. 319.
In the Thomson Newspapers case, we attacked
an amendment to the Canada Elections Act that banned the publication of polls
72 hours before a federal election. Some of you may remember John Crosbie's
reaction to the decision of the court striking down the publication ban. He saw
it entirely as a constitutional issue. He said the judges had become the
Godzillas of government, and the legislature and the executive had become the
Mickey Mouses. The question, he thought, was whether non-elected, appointed
judges should be telling elected people how to run an election. On the other
hand, my clients, the Thomson and Southam newspaper chains, argued that the
"question" was whether freedom of expression, a right entrenched in
s. 2 (b) of the Charter, could be limited by politicians in what was contended
to be their own self-interest. Our question was why Parliament should be
allowed to single out opinion polls from all of the other potentially misleading
bits of information swirling about in the dying days of a general election.
There was nothing wrong with "strategic" voting based on last minute
polls. So far as we were concerned, voters should be free to cast a vote based
on the candidate's haircut, if that was their preferred criterion. On that
appeal, on a razor-thin 5 to 3 vote, the court defined the issue as freedom of
expression, not the appropriate role of the various constitutional players. If
one vote had shifted, the court would have divided evenly, and the result would
have been to preserve the decision of the Ontario Court of Appeal, which had
unanimously upheld the ban.
It was otherwise in the Nova Scotia
Legislative Assembly case, where the challenge was whether CBC cameras should
be allowed into the House of Assembly against the opposition of the elected
members. The CBC argued its s. 2(b) point. In response, the various legislative
bodies across the country, including the Senate of Canada, for whom I acted,
raised the barricade of parliamentary privilege and said, "Look,
parliamentary privilege is as much part of the Constitution of Canada as is
freedom of expression under 2(b) of the Charter. You can't have one value in
the Constitution trumping another. The exercise of privileges by Parliament and
the provincial legislature is not subject to judicial review." Our
subliminal message was that if the media has a Charter right to introduce
cameras into the legislature over the members' opposition, the media should
have the same Charter right to introduce cameras in trial courts over the
opposition of the trial judges. Soon after that point was grasped, the media
goose was cooked, and manifestly seen to be cooked. Once again, it all depended
on how you defined the question.
The earliest of the three cases is Operation
Dismantle, where a coalition of disarmament groups sought to halt the testing
of Cruise missiles on the basis that such tests increased the possibility of
nuclear war. I argued for the federal government that the court should not
involve itself in political questions relating to national security. We relied
on a number of cases in the United States Supreme Court which held that in the
nature of things, judges lack the expertise, background, and information to
determine defence policy. [See Note 22 below] Our Supreme Court disagreed.
While it dismissed the appeal of Operation Dismantle on the basis of
non-justiciability, Madam Justice Wilson said that Charter rights trump defence
policy and national security. "I think we should focus our attention on
whether the courts should or must rather than on whether they can deal with
such matters", she said. [See Note 23 below] In short, in these examples,
where the court was persuaded that human rights was the issue, the decision went
one way. Where the court was persuaded that the issue was judicial restraint
and a recognition of the proper constitutional order, the decision went the
other way. Which way the question on any appeal gets to be formulated is, I
think, a key function of appellate advocacy.
Note 22: The Brethren, p.
126: "The Court had ceded to the President and the military virtual
autonomy in war-related matters. 'You can't fight a war with the Courts
in control,' Black had said."
Note 23: Operation Dismantle,
at p. 467 (emphasis is in the original).
Obviously the question that you say governs
the appeal will normally drive the answer that you want. It if were otherwise,
you would not be advocating that particular question. On a practical level, you
can often get better mileage arguing concepts in your hour before the Supreme
Court than you can by trudging through pages of black letter law. If you
persuade the judges about the right question, they will generally figure out
how to get to the answer, even if it means circumnavigating some difficult
precedents. The beauty of the "sundown rule" is that it gives you the
chance to motivate the judges at a critical stage, when their views about the
correct characterization of the appeal are crystallizing.
Don't overlook in oral argument any point essential to your success
Oral argument should be complete and
self-contained. Don't overlook any point essential to your success. A wise
practice for counsel in the Supreme Court is to hand to the judges a book of
extracts or "condensed book" at the beginning of the oral argument.
Most lawyers include the key extracts of evidence and passages from the case
law. This avoids wasting time while waiting for the judges to shuffle through a
mountain of paper, looking for the particular document you want to refer them
to. Having handed in the Book of Extracts, however, many lawyers don't take the
time to go through it. They'll say, "Well, Tab 37 - that's the contract. I
won't take time to go to it now. I know you are going to read it in due course.
I just want you to know that it is there." Bad mistake! If a particular
extract of testimony contained in the middle of a dozen or more volumes of
transcripts is essential to your success, or if you think everything turns on a
particular provision in the contract buried in five volumes of exhibits, stop
and read the extract to the court. This is "must have" information
for the court conference that is to follow; the "sundown rule"
teaches that the time to make your point is now. The great old advocates in the
heroic tradition figured out the necessity of doing that a lot faster than I
did. Mr. Justice John Arnup [See Note 24 below] tells the story of W.N. Tilley,
who was grinding through a contract case in the Supreme Court years ago. The
judges became worried that he was going to read the whole document to them. The
Chief Justice stopped him and said: "You don't need to do that, we'll read
the evidence." Tilley responded, innocently: "Will all your Lordships
read the evidence?" "Yes." "Will all your Lordships read
all the evidence?" "Yes, of course." "Then," said Mr.
Tilley, "let's read it together!" And he carried on.
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Note 24: |
Arnup, supra, note 13, p.
27. |
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Questions from the bench: Listen before you leap
The last thing I want to touch on in terms of
the oral hearing is the matter of questions from the bench. Of course,
everybody who talks about advocacy at any level of the courts will emphasize
the need to face up to questions. If something is bothering the judges, better
that it be out on the table than concealed in the recesses of their minds, only
to pop out later at the court conference, when you are no longer around to deal
with it. Some lawyers complain that a problem in the Supreme Court is that
often the hearings consist of little else but questions. This is an unfair
criticism. We didn't interrupt you when you were preparing your factum. Now
it's our turn.
You are confronted with nine judges who are
going to have to deliver at least their preliminary views of what this appeal
is all about shortly after the conclusion of oral argument. If something is in
the back of my head and I am not sure what the answer would be from one side or
the other, I'm going to ask it. You may have spent the previous night in a
hotel room mapping out each minute of your argument. I am sorry if my
interruption disrupts your game plan and burns valuable time. I need the answer
to my question because it helps me to do my job, even though it may make your
job a whole lot messier. As the expression goes, sauve qui peut.
Having said that, there are many different
kinds of questions, and you should respond to different types of questions in
different ways. I will try to illustrate this point by dividing questions into
what I think are seven useful categories, then give a hint about how I think
you should handle them.
The first type of question is the genuine
inquiry for enlightenment. It may be something as simple as clarifying a point
of fact, or a question like "Well, you are resting your argument on the
Charter, but is it not really a division of powers case?" or "How
would you say our decision in Re The Sliding Door Company applies to this
situation?" This category consists of straightforward questions that you
likely anticipated in preparing the appeal. Your reaction should be extremely
helpful and solicitous.
The second category is slightly more
confrontational and has to do with the fact that some members of the court are
more linear in their thinking and others prefer a more dialectical approach. An
example of the second category question is, "The appellant says this, and
you say that, but I don't see how your point answers her point. Could you
elaborate?" This category is slightly more confrontational in that it
brings into collision the opposing views. I think your posture should be one of
mild surprise that it is not evident what your position is, but nevertheless
you are happy to oblige with a short elaboration.
The third category of question is where the
court goes further than asking you to elaborate, and a judge purports to state
your position. Justice Cory is expert at this. He says something like: "I
suppose your position is that the presumption of innocence is a golden thread
that goes through the warp and woof of the criminal law, do I have your
point?" You can adopt his formulation, but you have to realize that you
are before the mother of all juries, and, while he is being helpful in terms of
his own thinking, your impetuous adoption of his formulation could potentially
inflame colleagues of a contrary view at the other end of the bench. I call
this category the "friendly fire" kind of question because although
it comes from a supportive source it may wind up fatally wounding your argument
when the other eight votes are counted.
The fourth category of question is overtly
hostile fire. The Rose [See Note 25 below] case included a good example of
"hostile fire." That case involved an attack on the constitutionality
of requiring a defence counsel who calls evidence to forfeit the right to be
the last to address the jury. The obvious hostile question to the appellant
was, "Are you saying, counsel, that every jury trial where the accused
called evidence since 1892 has violated fundamental principles of
justice?" It's at moments like this that you should close your eyes and
think of John Sopinka standing on the deck as the icebergs gathered at the
Sinclair Stevens inquiry. Don't try to please the questioner at the expense of
weakening your argument. You don't know at that stage how many of the judges
are silently agreeing with you. Sometimes hostile fire questions provoke
counter-fire from other judges, in which case, agreeably from your perspective,
the hostile questioner may be engulfed in back-fire.
Note 25: R. v. Rose
(S.C.C., 25448: judgment released November 26, 1998, unreported).
How can you tell what is friendly fire and
what is hostile fire? I had my own rule of thumb as an advocate before the
court: if Peter Cory asked the question it was probably friendly; if anybody
else asked it, it was probably hostile.
The fifth category of question should
probably be called collateral fire. That occurs where you are proceeding
happily along one train of argument and then, suddenly, a question seems to
come off the wall. I remember years ago listening to Michael Goldie arguing the
Canadian Arctic Gas case. [See Note 26 below] He was taking the court through
minutes of a key meeting when, suddenly, Justice Pigeon threw down his pencil
and said, "Now, are you going to read this over and over and over
again?" Well, the fact was, neither Mr. Goldie nor anyone else had
previously referred to it. Nevertheless Mr. Goldie, the agile warrior that he
was (and is), recognized the question as totally collateral to the flow of his
argument. He adroitly backed off, apologized, circled around, and eventually
came back to the extract he needed to refer to and carried on without
interruption. I would say that the proper posture for an advocate experiencing
collateral fire is submission! By definition, if it's collateral it can't hurt
you and therefore there is no point in making an issue of it.
Note 26: Committee of
Justice & Liberty v. Canada, [1978] 1 S.C.R. 369. Michael Goldie, now
Goldie J.A. of the B.C. Court of Appeal, acted for the Canadian Arctic Gas
Consortium.
The sixth category of question is cross-fire.
This is where you become an innocent bystander. The Borowski case [See Note 27
below] a few years ago was about whether a high-profile anti-abortion crusader,
Joe Borowski, could get public-interest standing to attack the
constitutionality of the abortion law, s. 251 of the Criminal Code. Chief
Justice Laskin, who had pioneered the concept of public-interest standing in
Thorson v. Attorney General [See Note 28 below] and Nova Scotia Board of
Censors v. McNeil, [See Note 29 below] was opposed to giving standing to a
political crusader who, as he saw it, was merely experiencing "an
emotional response" to the abortion legislation. Justice Martland took a
different view and wanted to use Chief Justice Laskin's earlier decisions to
put the skids under some of the remaining barriers to public-interest status. I
was there opposing Borowski and was caught in a cross-fire between Chief
Justice Laskin and Justice Martland, who both regarded my submission as
essentially irrelevant to their debate. My advice in a category six situation
is to mumble inaudibly and let the titans slug it out.
Note 27: Minister of
Justice v. Borowski, [1981] 2 S.C.R. 575.
Note 28: Thorson v.
Attorney General of
Note 29:
The seventh and last category of question is
what used to be called the "Martland question." Justice Martland,
during the 1970s and early '80s, was not inclined to ask many questions, but he
would sit and fret and fool around with his papers and look quizzical and
scratch an ear and call for books to be sent in, and talk to his neighbours,
but at some point in the proceeding there would be a kind of chilly silence and
Martland would clear his throat and out would come the question, trailing wisps
of smoke behind it. There wasn't anybody in the courtroom who didn't realize
that the moment of truth had arrived. If you were able to deal with the
Martland question the case was as good as won, and you felt yourself galloping
toward the sunlit uplands of victory. If you failed, a kind of a death watch
set in. The questioning from other members of the bench dried up. The judges
began to make their notes for the court conference. Nowadays, mercifully, the
red light goes on.
Attitude
Finally, I want to go back and pick up my
first point about John Sopinka's attitude. Attitude is everything in advocacy.
No matter how disastrously you think the hearing is unfolding, be steadfast and
defiant. Don't crumple. Don't take up the posture of a whipped cur, signalling
by your body language that you wish you were somewhere else. You don't know who
your friends are on the bench or how many they are in number. If you let
yourself down, you let them down as well, and above all you let down your
client. If at the conclusion of an apparently disastrous hearing you can walk
out of there with flags flying and your chin up, then you can say that you are
an advocate worthy of the John Sopinka tradition.
* Mr. Justice Ian Binnie, Supreme
Court of Canada.