The-Advocates’-Journal-Summer-2023

Vol. 42, No. 1. | SUMMER 2023

Arbitration Place is proud to celebrate our globally
recognized roster of arbitrators and mediators
The Advocates’ Journal
Vol. 42, No. 1; Summer 2023
Hon. Robert Armstrong
K.C.
Louise Barrington
FCIArb
Pierre Bienvenu
Ad. E.
Hon. Ian Binnie
K.C.
Hon. Robert Blair
K.C.
Hon. Edward Chiasson
K.C., FCIArb
Tina Cicchetti
Farley Cohen
FCIArb
Hon. Thomas Cromwell
C.C.
27
Hon. Douglas Cunningham
O.C., O.Ont, K.C.
Robin Dodokin
FCIArb
Alan D’Silva
Hon. Gloria Epstein
K.C., L.L.D.
Stanley Fisher
K.C.
L. Yves Fortier
C.C., O.Q., K.C., L.L.D.
Douglas Harrison
FCIArb
Patricia Jackson
L.S.M.
John Judge
Hon. Russell Juriansz
Megan Keenberg
Hon. Barry Leon
FCIArb
Jeffrey Leon
L.S.M., FCIArb
Gavin MacKenzie
David McCutcheon
C.Arb
John Lorn McDougall
K.C., FCIArb
Hon. Colin McKinnon
K.C.
The Rt Hon. Beverley McLachlin
P.C., C.C., CStJ, FCIArb
Lisa Munro
FCIArb
Hon. Frank Newbould
K.C.
Hon. Dennis O’Connor
O.C., O.Ont, K.C.
Neils Ortved
Q. Arb
Hon. Laurence Pattillo
Dancia Penn
O.B.E, K.C.
Harry B. Radomski
Joel Richler
FCIArb
Marshall Rothstein
K.C.
From the Editor
3 26
Town mouse
Neha Chugh
An all-encompassing approach
J. William Rowley
K.C.
Peter Ruby
FCIArb
Hon. Robert Sharpe
Hon. George Strathy
Anne Marie Whitesell
Hon. Warren Winkler
O.C., O.Ont., K.C.
To learn more about our rosters, please contact us at
arbitrationplace.com/our-roster
To inquire for roster member availability for arbitration, mediation
or mock trials please contact bookings@arbitrationplace.com
An interview with The Honourable
Justice Michelle O’Bonsawin
Une entrevue avec l’honorable
juge Michelle O’Bonsawin
Jacqueline Horvat and/et Dianne Corbiere
Mentorship: The advocate’s duty
Peter W. Kryworuk and Jacob R.W. Damstra
6 31
13
40
Our adversary system:
What advocates don’t ask
Anna S.P. Wong
Classics from the vault:
Some observations on the
art of advocacy
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Rethinking credibility
Cheryl Woodin, Anil K. Kapoor, and Sidney Brejak
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Les classiques du coffre- fort :
Quelques observations
sur l’art du plaidoyer
Joanie Lapalme and/et Michael Shortt
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THE ADVOCATES’ JOURNAL | SUMMER 2023 | 1

FROM THE EDITOR
THE ADVOCATES’ SOCIETY
Hanging out
PAST PRESIDENTS
Summer 2023; Vol. 42, No. 1.
Editor
Linda Rothstein, LSM, ASM | Linda.Rothstein@paliareroland.com
Managing Editor
Andrea Gonsalves | andreag@stockwoods.ca
The Advocates’ Journal: cite as Adv J
Production Editor
Sonia Holiad | sholiad@rogers.com
Editorial Correspondence
Linda Rothstein, LSM, Paliare Roland Barristers
155 Wellington St West 35th Floor
Toronto, ON, M5V 3H1
Linda.Rothstein@paliareroland.com | 416-646-4327
Advertising and Subscription Correspondence
Robin Black
robin@advocates.ca | 1-888-597-0243 x.108
Creative Director
Jessica Lim | jessical@advocates.ca
Kim Burton | jkburton64@gmail.com
Paintings, Illustrations, and Photography
Delaney Cox: cover, p. 19
Ryan Little: pp. 13, 27, 41
Anna Macquistan: pp. 7, 32
The opinions expressed by individual authors are their own
and do not necessarily reflect the policies of The Advocates’
Society.
Publications Mail Commercial Sales Agreement No. 40019079
The Advocates’ Journal is printed in Canada and is published four
times a year by The Advocates’ Society, 250 Yonge St, Suite 2700,
Toronto, Ontario, M5B 2L7. Distributed free to all members of the
Society. Contents copyright © 2023 by The Advocates’ Society.
Second class registration number 5941, paid at Scarborough.
Contents may be reproduced only with written authorization of
the authors and acknowledgment of The Advocates’ Journal. The
editors do not assume responsibility for the loss or return of
manuscripts, photographs, or illustrations.
1965-66 J. J. Robinette, QC, ASM
1966-67 The Hon. R. F. Reid
1967-68 The Hon. Justice R. S. Montgomery
1968-69 The Hon. Justice P. Cory
1969-71 W. B. Williston, QC, ASM
1971-72 The Hon. Justice W. D. Griffiths
1972-73 C. F. McKeon, QC, ASM
1973-74 A. E. M. Maloney, QC, ASM
1974-76 P. B. C. Pepper, QC, LSM
1976-77 H. G. Chappell, QC
1977-78 W. S. Wigle, QC
1978-79 The Hon. Justice J. J. Fitzpatrick
1979-80 E. A. Cherniak, KC, LSM, ASM
1980-81 The Hon. Justice J. W. O’Brien
1981-82 T. H. Rachlin, QC
1982-83 K. E. Howie, QC, ASM
1983-84 J. P. Nelligan, QC, LSM, ASM
1984-85 Peter Webb, KC, LSM
1985-86 Bert Raphael, QC, LSM
1986-87 A. D. Houston, KC
1987-88 The Hon. Justice J. R. R. Jennings
1988-89 R. A. Stradiotto, KC, LSM
1989-90 The Hon. Justice Peter G. Jarvis
1990-91 John F. Evans, KC, LSM
1991-92 Terrence J. O’Sullivan, LSM
1992-93 The Hon. Justice Eleanore A. Cronk
1993-94 Roger Oatley
1994-95 The Hon. Justice Mary Anne Sanderson
Caroline Abela
Bernard Amyot, AdE
Lisa Belcourt
Simon Bieber
Hilary Book
Sean Boyle
Frank Cesario
David D. Conklin
Kirsten Crain
President: Peter W. Kryworuk
Vice-president: Dominique T. Hussey
Treasurer: Darryl A. Cruz
Secretary: Sheree Conlon, KC
Executive Director: Vicki White
James Doris
Andrew Faith
Craig Ferris, KC
Linda Fuerst
Sheila Gibb
Peter Henein
Scott C. Hutchison
Lara Jackson
Najma Jamaldin
OFFICERS
DIRECTORS
1995-96 C. Clifford Lax, KC, LSM
1996-97 Margaret A. Ross, LSM
1997-98 The Hon. Justice Harriet Sachs
1998-99 Michael F. Head
1999-00 James A. Hodgson
2000-01 Ronald G. Slaght, KC, LSM, ASM
2001-02 J. Bruce Carr-Harris, LSM
2002-03 Philippa G. Samworth, ASM
2003-04 Jeffrey S. Leon, LSM
2004-05 The Hon. Justice Benjamin Zarnett
2005-06 Linda Rothstein, LSM, ASM
2006-07 Michael E. Barrack
2007-08 Michael Eizenga, LSM
2008-09 Peter J. E. Cronyn
2009-10 Sandra A. Forbes
2010-11 Marie T. Henein, LSM
2011-12 Mark D. Lerner
2012-13 Peter H. Griffin, LSM
2013-14 Alan H. Mark
2014-15 Peter J. Lukasiewicz
2015-16 Martha A. McCarthy, LSM
2016-17 Bradley E. Berg
2017-18 Sonia Bjorkquist
2018-19 Brian J. Gover, LSM
2019-20 Scott Maidment
2020-21 Guy J. Pratte, AdE, LSM
2021-22 Deborah E. Palter
Cynthia Kuehl
Robin Lepere
Craig Lockwood
Jennifer McAleer
Christine Mohr
Ira Nishisato
Lillian Y. Pan, KC
Tamara Prince
Luisa Ritacca
PAST EDITORS OF THE JOURNAL
1982-90 Moishe Reiter, QC
1991-2008 David Stockwood, QC, LSM
2008-20 Stephen Grant, LSM, ASM
Michael G. Robb
Scott Robertson
Sylvie Rodrigue, AdE
Stephen G. Ross
Jeff Saikaley
John Sorensen
Ann L. Stoner
Linda Rothstein, LSM, ASM
“The lawyer does well from time to time to lift his eyes from his desk and look
out of the window on the wider world beyond. There can be a too sedulous devotion
to the text books of the law and I do not commend the example of Chief Baron Palles
who is said to have taken Fearne on Contingent Remainders with him on his honeymoon.”
~ Lord Hugh Macmillan, Law and Letters (1930) 16 ABAJ 662, 663
Fearne on Contingent Remainders: It’s
enough to make me give up the practice
of law.
I came across this quote as part of my due
diligence on Lord Macmillan, whose writing
is featured in this issue as part of our Classics
from the Vault series. As Joanie Lapalme and
Michael Shortt explain, Lord Macmillan had
lots to say about advocacy that still resonates
some 90 years later. His deadpan humour –
just another feature of his writing that keeps
us paying attention.
But here’s the thing: Once I stopped laughing
at poor Fearne, once I thought about why Lord
Macmillan’s joke landed so well, it started to
rankle.
For the record, at the time of either of my
own two honeymoons, I would have chortled
with self-satisfied superiority at the suggestion
that work invaded this closely guarded
personal time. I would have reassured myself,
especially when my kids were young, that
I rigorously policed the boundary between
work and home. As a new mom in the late ‘80s
and ‘90s, I was morally certain that my survival
– and the survival of my family – depended
on my ability to focus only on work at work
(no calls from the nanny except on her way to
a hospital) and my equally strong superpower
to slam the door on work once I crossed the
threshold of our home.
But, of course, that was then – before I routinely
pasted my smartphone to my body (yoga pants
with invisible pockets), jammed earbuds into
my ears to take a call from a new client, threw a
laptop and an iPad into my backpack, and marched
to the office – reassuring myself that this multitasking
routine counts as “a walk.”
I am older than most of you reading these
pages so, luckily, I do have some limits: I am
reasonably certain that I will not be persuaded
to maximize the health benefits of my walk by
subscribing to WHOOP. For those not yet targeted
by its online ads, WHOOP is the latest,
most advanced fitness and health “wearable”
available. Which means it monitors your every
breath and movement – awake and asleep – 24/7.
Okay. So we can draw the line at digital
self-surveillance. But let’s be honest: Whether
the pull is work, family, or highly choreographed
leisure time (get in that workout),
staring out the window or sitting on a park
bench feels increasingly frivolous.
All of which is a roundabout way of saying, I
think Sheila Liming is on to something. Liming
is the author of Hanging Out: The Radical Power
of Killing Time (New York: Melville House,
2023). She argues that we are all losing our
“daring to do nothing much,” especially in the
company of others. She calls for more, much
more, hanging out: “more parties, more shared
meals, more in-person gatherings, more latenight
conversations, more being together
in public, more cooperation, more standing
shoulder to shoulder, more social revelry.”
Bring on social revelry!
There’s a whole chapter on hanging out on
the job, which charts the slow post-COVID
death of casual, spontaneous workplace conversations.
Fortunately, Liming doesn’t insist
on a rigid divide between work and not
work. For example, she makes the point that,
yes, networking at conferences is often mostly
about the “work” embedded in that term and
not its first syllable – the connecting part. And
she reminds us that professional conferences
2 | SUMMER 2023 | THE ADVOCATES’ JOURNAL
THE ADVOCATES’ JOURNAL | SUMMER 2023 | 3

CONTRIBUTORS
are almost always at their best when there’s lots
of time to hang out between the panels. Have
you done that lately? I have not.
It should come as no surprise that in the past
year or so The Advocates’ Society has struggled
mightily to get us back to continuing professional
development in person, not just on Zoom. In
our time-starved lives, I too opt for online CPD
so I can fold the laundry or chop the onions and
garlic for the Bolognese while I absorb the latest
updates on the law of evidence. I tell myself it
beats Fearne on Contingent Remainders on your
honeymoon.
Or does it?
***
Back to Lord Macmillan. Law geeks will remember
that his reasons in Donoghue v Stevenson get less
credit for transforming the law of negligence
than do those of Lord Atkin and his articulation
of the “neighbour principle.” But at least one of
Lord Macmillan’s sentences is still the starting
point of every novel negligence argument: “The
categories of negligence are never closed.”
We are delighted to feature an interview by
Treasurer Jacqueline Horvat and Dianne Corbiere
of Justice Michelle O’Bonsawin as she describes
her journey to the Supreme Court of Canada. In
recognition of Justice O’Bonsawin’s first language,
the interview, which was conducted in
English, also appears in French.
And there’s much more: a thoughtful interrogation
of the tenets of our adversary system, a
critique of the way we assess witness veracity,
and a shout-out to advocacy careers in smaller
cities. Finally, in one of his last official roles, our
president, Peter Kryworuk, champions the advocate’s
duty to mentor.
Surely something here will spur a casual conversation
with someone interesting. But if not,
please go find a beach or a dock or a park and take
your time to dreamily stare at the distance.
THE ADVOCATES’ JOURNAL
SUBMISSION GUIDELINES
• Content: We value articles about advocacy and advocates
that are topical and crackle with currency.
• File format: We accept submissions only in Microsoft
Word format.
• Length: Although we appreciate concision, there is no
maximum or minimum length for Journal articles. The
majority of our articles are between 1,500 and 3,500
words (excluding notes), but we will consider articles
outside this range.
• Notes: We prefer articles without notes, but whether to
include notes is at the author’s discretion. (All direct
quotations should be referenced, however, whether
in the body of the article or in notes.) If you include
notes with your submission, we prefer endnotes to
footnotes. When reviewing notes after completing the
final draft, double-check that cross-references (“ibid.,”
“supra”) haven’t changed because of late additions or
deletions of text.
• Citation format: We do not insist on a particular citation
style. If you include citations, we trust that you will
ensure they are accurate, complete, current and internally
consistent. In particular, check that citations to Internet
sources refer to web addresses that are valid as of the
date of the submission. If a cited web address is no longer
valid, we expect you to make note of this in the citation.
Sidney Brejak
Sidney Brejak is currently an articling
student at Bennett Jones LLP in Toronto.
Sidney studied at the University of Windsor
Faculty of Law and is looking forward to
developing his litigation practice.
Neha Chugh
Neha Chugh is a criminal, family, and child
protection lawyer at Chugh Law in Cornwall,
Ontario. She is a mom of three active kids
and a PhD student at Concordia University.
Neha is the 2022 Catzman Award winner.
Dianne Corbiere
Dianne Corbiere has been a bencher of the
Law Society of Ontario since 2015. She is the
managing partner of the firm Nahwegahbow
Corbiere. Dedicated to working for First
Nations, Dianne has vast experience in
Aboriginal law, specializes in Treaty and
Aboriginal rights, and represents First
Nations across Canada, mostly in Ontario.
Jacob R.W. Damstra
Jacob is a trial, administrative, and appellate
advocate practising at Lerners LLP in
London, Ontario. As the product of generous
legal, judicial, academic, military, and public
service mentorship, he is committed to paying
it forward through teaching, coaching, and
mentoring.
Jacqueline Horvat
Jacqueline Horvat was elected as treasurer of
the Law Society of Ontario in June 2022. She
is the sixth woman treasurer in the 225-year
history of the Law Society. She is a litigation
lawyer and a founding partner of Spark Law,
a seven-lawyer full-service firm with offices
in Toronto and Windsor.
Anil K. Kapoor
Anil K. Kapoor practises in the areas of
criminal law, national security law, and
regulatory and professional discipline law at
Kapoor Barristers in Toronto.
Peter W. Kryworuk
Peter Kryworuk currently serves as president
of The Advocates’ Society. He is a senior
partner and Health Law Group leader at
Lerners LLP. Peter enjoys spending his free
time with family and friends and a glass of
fine wine at his cottage on Lake Huron.
Joanie Lapalme
Joanie is a partner with Fasken’s Montreal
office, where she practises intellectual
property law. She also teaches IP at the
Université de Sherbrooke, which allows her
to be exposed to – and benefit from – her
students’ fresh perspectives on the law.
Michael Shortt
Michael Shortt is a partner with Fasken’s
Montreal office, where he practises
intellectual property law, as well as official
language rights litigation. Having recently
become a father for the second time, he is
too sleep-deprived to add the customary
flash of wit.
Anna S.P. Wong
Anna S.P. Wong is legal counsel at the College
of Physicians and Surgeons of Ontario. A
recent year spent abroad gave her a newfound
appreciation for vast spaces and central air.
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• Authorship: Include your name and email address at
the top of your article. Be sure to list any co-authors.
Thank you,
Linda Rothstein, Editor
Andrea Gonsalves, Managing Editor
Sonia Holiad, Production Editor
Cheryl Woodin
Cheryl is a partner at Bennett Jones LLP and
was called to the bar in both Ontario and
British Columbia. She is a litigator with a
broad civil law practice.
4 | SUMMER 2023 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | SUMMER 2023 | 5

FEATURE
An interview with The Honourable
Justice Michelle O’Bonsawin
Une entrevue avec l’honorable juge
Michelle O’Bonsawin
On Justice O’Bonsawin’s background
Law Society of Ontario Bencher Corbiere: Can you please
tell us about your journey to access your nation’s teachings,
culture, and language, which you didn’t really have access to
growing up, and why they are important to you?
Justice O’Bonsawin: I think there were many events that happened
throughout my life that led me to that journey. When
I grew into my teens, my family had a stronger link with
Odanak. My eyes opened wider at that time, and I sought more
information about my culture.
Specifically, I remember one meeting that I had with Evelyn
O’Bonsawin, who was an Elder from our community and
a cousin of my father. She was heavily involved in the fight
for Bill C-31, with regard to our community women regaining
their status after they married a non-Indigenous person and
the issues surrounding that. That, for me, was really an important
awakening as an Indigenous woman, to hear Evelyn
talk about the fight and to experience those teachings from her.
And then, afterward, when I moved to Ottawa, I became
very involved. It was a whole new experience, where I was
able to really learn from my Anishinaabe cousins and Elders
about their practices and their teachings.
The other thing that was important for me was to learn my
language. When the pandemic started, community members
began Abenaki language teachings. I was fortunate because the
pandemic, which was very difficult at the beginning, gave me
virtual access to my language. I did not have that access before.
Afterward, I was able to continue language classes because
Odanak started offering them online as well.
6 | SUMMER 2023 | THE ADVOCATES’ JOURNAL
Jacqueline Horvat and/et Dianne Corbiere
Sur les antécédents de la juge O’Bonsawin
Conseillère Corbiere du Barreau de l’Ontario : Pouvez-vous nous
parler de votre parcours pour accéder aux enseignements, à la
culture et à la langue de votre nation, auxquels vous n’aviez pas
vraiment accès en grandissant, et pourquoi ils sont importants
pour vous?
Juge O’Bonsawin : Je pense qu’il y a eu de nombreux
évènements tout au long de ma vie qui m’ont menée à ce parcours.
Lorsque j’ai atteint l’adolescence, ma famille avait un
lien plus fort avec la communauté d’Odanak. Mes yeux se sont
ouverts plus grands à ce moment-là et j’ai cherché à en savoir
plus sur ma culture.
Plus précisément, je me souviens d’une rencontre avec Evelyn
O’Bonsawin, qui était une ainée de notre communauté et
aussi une cousine de mon père. Elle était fortement impliquée
dans la lutte pour le projet de loi C-31, en ce qui concerne la
réintégration des femmes de notre communauté après leur
mariage avec une personne non autochtone, et les questions
qui s’y rattachent. Le fait d’entendre Evelyn parler de la lutte
et de recevoir ces enseignements de sa part a vraiment été
une prise de conscience importante pour moi en tant que
femme autochtone.
Ensuite, lorsque j’ai déménagé à Ottawa, je me suis beaucoup
impliquée. C’était une toute nouvelle expérience, qui m’a
permis d’apprendre de mes cousins et ainés anichinabés au sujet
de leurs pratiques et leurs enseignements.
L’autre chose qui était importante pour moi était d’apprendre
ma langue. Lorsque la pandémie a commencé, les membres de
la communauté ont commencé à enseigner la langue abénaquise.
My journey has been a long one. It was not automatic because
I didn’t grow up in a community, so I had to go out and
find the teachings. I still have a long way to go, but it is a priority
for me.
Bencher Corbiere: Can you also talk about the importance of
the French language and culture, and being a francophone?
Justice O’Bonsawin: Being an Indigenous woman is extremely
important to me – it is a huge part of my identity and community.
But being a francophone woman is also significant.
My background is important because, like everyone who has
different experiences and a diverse background, it shapes how
you look at things.
Coming from Northern Ontario and being a francophone is
meaningful to me and those in my community. It is important
that our children speak French and that “la Francophonie” is
a part of their identity. Growing up, my children watched TV
only in French, and they did not learn English until they were
in Grade Two.
We want to live in our language, we want to learn in our language
when we go to school. I did all my schooling in French,
even the French Common Law program. It was only while I
completed my master’s and PhD that I studied in English. All
of my university studies, with those exceptions, were in French.
I’ve always been of the view that if I have the option to be
served in French or English, I’ll ask to be served in French. I
normally speak French, but if people speak to me in English,
J’ai eu de la chance, parce que la pandémie, qui a été très difficile
au début, m’a donné accès à ma langue de façon virtuelle.
Je n’avais pas cet accès auparavant. Par la suite, j’ai pu continuer
les cours de langue parce qu’Odanak a commencé à les
offrir en ligne.
Mon parcours a été long. Cela n’a pas été automatique, car je
n’ai pas grandi dans une communauté, j’ai donc dû aller chercher
les enseignements. J’ai encore beaucoup de chemin à faire,
mais c’est une priorité pour moi.
Conseillère Corbiere : Pouvez-vous également parler de l’importance
de la langue et de la culture francophone, et du fait
d’être francophone?
Juge O’Bonsawin : Le fait d’être une femme autochtone est
extrêmement important pour moi, c’est une partie importante
de mon identité et de ma communauté, mais être francophone
est également important. Mes antécédents sont importants,
parce que, comme tous ceux qui ont des expériences différentes
et un parcours diversifié, tout cela façonne la façon dont vous
voyez les choses.
Le fait de venir du nord de l’Ontario et d’être francophone est
significatif pour moi et pour les membres de ma communauté.
Il est important que nos enfants parlent français et que la
francophonie fasse partie de leur identité. En grandissant, mes
enfants ne regardaient la télévision qu’en français et ils n’ont
pas appris l’anglais avant d’être en deuxième année.
Nous voulons vivre dans notre langue, nous voulons apprendre
dans notre langue quand nous allons à l’école. J’ai fait
toutes mes études en français, même le programme de common
law en français. Ce n’est que lorsque j’ai travaillé sur ma
maitrise et mon doctorat que j’ai étudié en anglais. Tous mes
études universitaires, à ces exceptions près, se sont déroulées
en français.
J’ai toujours été d’avis que si j’ai le choix d’être servie en
français ou en anglais, je demanderai à être servie en français.
Je parle normalement en français, mais si on me parle en anglais,
je réponds en anglais. Je pense que si nous n’utilisons pas
nos droits linguistiques en français, nous les perdrons, il est
donc essentiel pour moi de poursuivre dans cette voie.
Trésorière Horvat du Barreau de L’Ontario : J’aimerais vous poser
une question qu’on me pose souvent : « Vous n’êtes que dans
la quarantaine, comment réussissez-vous à faire tout cela? »
Lorsque cette question est posée à un homme, elle est posée de
manière positive, mais lorsqu’elle est posée à une femme, elle
peut avoir une connotation négative.
Tout d’abord, comment répondez-vous à ce type de questions?
Deuxièmement, comment pensez-vous que votre âge
relativement jeune influence la façon dont vous abordez les
questions juridiques?
Juge O’Bonsawin : Honnêtement, avoir l’air plus jeune dans
ma situation n’est pas toujours un avantage. C’est malheureux
de dire cela, et c’est pire pour une femme.
Lorsque j’ai commencé à travailler à la Cour supérieure, dans
les couloirs, on me prenait parfois pour une avocate. Ce n’est
pas facile, surtout quand on commence comme juge, parce
qu’on a toujours l’impression qu’il faut faire ses preuves. J’ai
constaté qu’il y avait des gens d’un certain âge qui n’étaient
THE ADVOCATES’ JOURNAL | SUMMER 2023 | 7

I’ll respond in English. My view is that if
we don’t use our French language rights,
we will lose them. So it’s essential to me
to continue with that.
Law Society of Ontario Treasurer
Horvat: I would like to ask
you a question that I am asked
often: “You’re only in your forties.
How can you be doing all
this?” When that question is
asked of a man, it is asked in a
positive way. But when asked
of a woman, it can have a negative
connotation.
So, first, how do you deal with those
types of questions? And, second, how
do you think your relatively young
age shapes the way you approach legal
issues?
Justice O’Bonsawin: I’ll be honest and
tell you that, being where I am and looking
younger, at times, is not an advantage.
It’s unfortunate to say that, and it’s
worse for a woman.
When I started on the Superior Court,
at times in the hallways I was mistaken
for counsel. It’s not easy, especially when
you start out as a judge, because you are
“You have to look at the files without bias,
but your background is where you find
your unique perspectives.”
always feeling that you have to prove
yourself. I found that there were people
of a certain age who were not as respectful
to me while I sat on the bench, because
of the age factor – because I was
young, and I looked young. I was 43
years old when I was appointed to the
Superior Court.
For me, now, joining the Supreme
Court, I feel that my age is an advantage
because I’m accustomed to reading a lot
and I’m able to work through plenty of
the material thanks to the energy that I
have – not to say that others don’t have
it. I think it is an advantage to be younger
because of your stamina.
I would also like to add
that, as a woman, it is difficult
to find work-life balance.
It is not always easy to
juggle things. I have not always
been successful at it, so
I don’t want anyone to think
that O’Bonsawin has the key
to success. I don’t. My goal
is to be the best wife, mother,
past lawyer, and judge that I can be. I try
to balance it all, the best as I can.
On being a good judge,
and judicial training
Treasurer Horvat: To be a good judge,
one needs to be impartial. But one’s
personal experience is the background
that shapes the perspective
that is brought to the table. How do
you balance the unique perspectives
and experiences that you bring to your role while also
remaining impartial?
Justice O’Bonsawin: For any judge, the first rule is that you
must be impartial. Being a judge is your first obligation. You
have to look at the files without bias, but your background is
where you find your unique perspectives.
Your obligation is to be neutral and to render a decision based
on how the facts, how the argument, how the evidence are
presented to you. You do that also through the lens of your
lived experience and your perspective as a person. I think that
everyone, no matter who they are, has their own experiences
and perspective that they bring to the job. I don’t think it is
unique to me or to anyone else.
Treasurer Horvat: As an active member of the Indigenous and
francophone communities, how do you see your role, as a
judge, in helping to raise awareness among Canadians? What
sort of engagement, if any, do you envision outside the courtroom?
Justice O’Bonsawin: My role has always included being an
educator. My role as a lawyer was to educate as many people
as I could — people in the legal field, but also social workers
and medical professionals, with regard to mental health issues
and, specifically, legal mental health issues. Within that area,
Indigenous Peoples were a key focus.
As a lawyer, I have always self-imposed the obligation to be
part of that process, to try to educate as many people as I could
travailleurs sociaux et les professionnels de la santé, en ce qui
concerne les questions de santé mentale et les questions juridiques
de santé mentale. Dans ce cadre, les populations autochtones
ont été au centre de mes préoccupations.
En tant qu’avocate, je me suis toujours imposé l’obligation
de participer à ce processus, pour essayer d’éduquer le plus
grand nombre de personnes possible sur ces questions. En tant
que juge, j’ai fait de même.
J’ai parlé haut et fort de la nécessité de sensibiliser la magistrature
aux principes Gladue – comment ils fonctionnent,
comment ils devraient être pris en compte et pourquoi ils sont
obligatoires en vertu du Code criminel. Il y a plusieurs occasions
où les principes Gladue sont obligatoires, mais ils ne
semblent pas toujours être au premier rang des préoccupations
des juges. C’est un sujet sur lequel je continue à travailler et sur
lequel je fournis de l’information. Je travaille avec différents
comités et organismes pour aborder ces questions.
Je ne vais pas arrêter ce travail. En effet, j’espère contribuer à
la production de publications sur ces questions.
Conseillère Corbiere : Nous parlons de la charge supplémentaire
que représente le fait d’être la première, et des
responsabilités qui y sont associées. Estimez-vous qu’en tant
que première personne autochtone à siéger à la Cour suprême
du Canada, vous avez certaines responsabilités?
Juge O’Bonsawin : Je ne sais pas si j’ai des responsabilités en
tant que telles, car cela signifierait que j’ai des arrière-pensées,
pas très respectueux envers moi lorsque
je siégeais à la cour, en raison de mon
âge, parce que j’étais jeune et que j’avais
l’air jeune. J’avais 43 ans lorsque j’ai été
nommée à la Cour supérieure.
D’après moi, maintenant que je me joins
à la Cour suprême, mon âge
est un avantage. J’ai l’habitude
de lire beaucoup et mon énergie
me permet de passer à travers
beaucoup de matériel —
ce qui ne veut pas dire que les
autres ne le font pas. Je crois
que c’est un avantage d’être
plus jeune parce qu’on a plus
d’endurance.
Je voudrais également ajouter
qu’en tant que femme,
il est difficile de trouver un équilibre
entre la vie professionnelle et la vie
privée. Il n’est pas toujours facile de jongler
les choses. Je n’ai pas toujours réussi,
et je ne voudrais pas que l’on pense
que madame O’Bonsawin détient la clé du
succès. Ce n’est pas le cas. Mon objectif
est d’être la meilleure épouse, la meilleure
mère, la meilleure avocate et la meilleure
juge que je puisse être. J’essaie d’équilibrer
tout cela, du mieux que je peux.
8 | SUMMER 2023 | THE ADVOCATES’ JOURNAL
Être une bonne juge et
la formation judiciaire
Trésorière Horvat : Pour être un bon juge,
il faut être impartial, mais l’expérience
personnelle est le contexte qui façonne la
perspective qui est mise de l’avant.
« En tant que juge, vous devez examiner
les dossiers de manière impartiale, mais c’est
dans vos antécédents que vous trouvez
vos points de vue uniques. »
Comment conciliez-vous les perspectives
et les expériences uniques que
vous apportez à votre rôle tout en restant
impartiale?
Juge O’Bonsawin : Pour tout juge, la première
règle de droit est l’impartialité.
Être juge est votre première obligation. Il
faut examiner les dossiers sans parti pris,
mais c’est dans vos antécédents que vous
trouvez vos points de vue uniques.
Votre obligation est d’être neutre et
de rendre une décision en fonction de la
façon dont les faits, l’argument et la
preuve vous sont présentés. Vous le
faites aussi à partir de votre expérience
de vie et de votre propre perspective en
tant que personne. Je crois que
chacun, peu importe qui, apporte
à son travail sa propre
expérience et son propre
point de vue. Je ne pense
pas que cela me soit propre
ou soit propre à qui que ce
soit d’autre.
Trésorière Horvat : Comme
membre active des communautés
autochtones et francophones,
comment voyez-vous votre rôle,
en tant que juge, envers la sensibilisation
des Canadiens? Quel type d’engagement
envisagez-vous en dehors de la salle
d’audience, le cas échéant?
Juge O’Bonsawin : Mon rôle a toujours
inclus celui d’éducatrice. Mon rôle
d’avocate consistait à sensibiliser le plus
de personne possible — les personnes
dans le domaine juridique, mais aussi les
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about these issues. As a judge, I have done the same.
I have been vocal about the need to educate the judiciary
about Gladue principles – how they work, how they should be
considered, and why they are mandatory under the Criminal
Code. There are quite a few occasions where Gladue principles
are mandatory, but they do not always seem to be at the front
end of judges’ minds. That is something I continue to work on
and provide education about. I work with a number of different
committees and organizations to talk about these issues.
I am not going to stop this work. I am actually hoping to help
produce publications about such issues.
Bencher Corbiere: We talk about the extra burden of being the
first, and the responsibilities that are associated with that. Do
you feel that, as the first Indigenous person on the Supreme
Court of Canada, you have certain responsibilities?
Justice O’Bonsawin: I don’t know if I have responsibilities per
se, because that would mean I would have an agenda. But there
is a burden. To be honest, I do feel weight on my shoulders. I
feel there are certain files in front of us in which, when decisions
are issued, my participation will be looked at through a
magnifying glass.
What I would remind people of is that I have a voice. I have
always used my voice, but now I am one voice of nine, which
is not as easy as being a voice of one when you’re in Superior
Court, or one of three in Divisional Court. So, I do feel pressure,
but it is a pressure that comes with the job and it comes
with who I am. I am going to step up to the plate and do the
best that I can.
Treasurer Horvat: What qualities do you believe make an
effective advocate?
Justice O’Bonsawin: First, being a good writer is really important,
because it’s the first impression that I have of counsel.
Well-written documents are key and, if they are written without
mistakes, that’s even more important because it shows me
that the person took the time to properly write something, to
edit it, and to ensure it was perfect before giving it to me. So,
excellent writing skills are essential.
Second, make sure that you guard your reputation. I think
that is extremely important for lawyers because once you lose
that reputation, you do not get it back. Always be mindful of
how you are dealing with opposing counsel and others in the
legal community. That is especially important if you want to be
a judge in the future because those who review your application
not only check the references you provide but also call a
number of other people in the legal community.
So, make sure that you are humble in how you deal with
others, and be mindful of others.
Third, ensure that you have prepared your case as if it is the
first case you’ve ever prepared. The reason is that when you
are starting off, you prepare everything, you read everything,
and you know your case inside out. You do not know what to
expect on the other side. I have always lived and died by that
motto: “Prepare every case as if it is your first one.”
The fourth piece of advice is to know your case and not be
married to the script. Make sure that you can argue the case
without looking at your notes constantly. The judge may ask
mais il y a un fardeau. Pour être honnête, je sens un poids sur
mes épaules. J’ai le sentiment que certains dossiers sur lesquels
nous travaillons entraineront un examen à la loupe de ma
participation lorsque les décisions seront rendues.
Je voudrais rappeler aux gens que j’ai une voix. J’ai toujours
utilisé ma voix, mais maintenant je suis une voix de neuf, ce qui
n’est pas aussi facile que d’être une seule voix, lorsqu’on est à
la Cour supérieure, ou la voix de trois en Cour divisionnaire. Je
ressens donc une certaine pression, mais c’est une pression qui
va de pair avec le travail, et elle vient avec qui je suis. Je vais
m’atteler à la tâche et faire de mon mieux.
Trésorière Horvat : Quelles sont, selon vous, les qualités d’un
bon avocat?
Juge O’Bonsawin : Tout d’abord, il est très important d’être un
bon rédacteur, car c’est la première impression que j’ai d’un
avocat. Des documents bien rédigés sont essentiels, et s’ils sont
rédigés sans erreurs, c’est encore plus important, parce que
cela me montre que la personne a pris le temps de bien écrire
son document, de le modifier, et de s’assurer qu’il était parfait
avant de me le donner. Donc, d’excellentes compétences en
rédaction sont essentielles.
Deuxièmement, assurez-vous de protéger votre réputation,
et je pense que pour les avocats, c’est extrêmement important,
parce qu’une fois que vous perdez cette réputation, vous ne
pouvez pas la récupérer. Soyez toujours attentif à la façon dont
vous traitez avec l’avocat de la partie adverse et avec les autres
membres de la communauté juridique. C’est particulièrement
important si vous souhaitez devenir juge à l’avenir, parce qu’ils
ne vérifient pas seulement les références fournies sur le formulaire
de candidature, mais ils appellent un certain nombre
d’autres personnes dans la communauté juridique.
Veillez donc à faire preuve d’humilité dans vos relations
avec les autres, et soyez attentifs aux autres.
Troisièmement, efforcez-vous de préparer chaque cas comme
si c’était votre premier cas. La raison en est que lorsque vous
débutez, vous préparez tout, vous lisez tout et vous connaissez
votre dossier sur le bout des doigts. Vous ne savez pas à quoi
vous attendre de l’autre côté. Ma devise a toujours été de « préparer
chaque cas comme s’il s’agissait du premier. »
Le quatrième conseil est de ne pas trop s’attacher au scénario
et de connaitre votre cas à fond. Assurez-vous que vous pouvez
plaider votre cause sans avoir à regarder constamment vos
notes. Le juge peut vous poser des questions qui vous déconcertent
et vous ne pouvez pas nécessairement vous retrouver
dans vos notes.
Cinquièmement, je vous conseille de demander à quelqu’un
d’autre de relire ce que vous avez écrit avant de le soumettre.
Tous les conseils que je viens de donner sont aussi pertinents
pour les avocats qui comparaissent en première instance que
pour ceux qui comparaissent devant nous à la Cour suprême.
Conseils aux nouveaux avocats
Trésorière Horvat : Souvent, lorsque les jeunes et les nouveaux
avocats reçoivent des conseils, on leur dit comment ils devraient
se conformer, ou qu’ils devraient se conformer. Quelle est votre
approche avec les jeunes qui apportent des perspectives différentes?
Comment peuvent-ils apporter leurs propres perspectives
à la pratique du droit et être assez courageux pour ne pas
you questions that throw you off, and you cannot necessarily
find your way back through your notes.
The fifth piece of advice is to get someone else to review
what you’ve written before you submit it.
All the advice that I just provided is as relevant for advocates
appearing at the trial level as it is for those appearing in front
of us at the Supreme Court.
Advice for new lawyers
Treasurer Horvat: Often, when young people and new lawyers
receive advice, they are told how they should conform, or that
they should conform. What is your approach with young people
who bring different perspectives? How can they bring their
own perspectives to the practice of law and be brave enough
not to simply conform?
“Be mindful of how you treat others
because that is how you are going
to be seen going forward.”
Justice O’Bonsawin: I have never been a conformist, and I
have always told those whom I mentor to be yourself and don’t
forget who you are, because if you change who you are, you’re
not true to yourself in your beliefs and your values. The best
piece of advice is to be yourself. Do not forget who you are and
where you come from.
One of the things I would always tell new lawyers, and I
have said it at the Supreme Court with my clerks, is that you
must be respectful to your legal assistant because the legal
assistant is your right-hand person. That person is going to
cover you and make sure you have what you need. They are
essential to your work and success.
In my mind, legal assistants are at an equal level, and I’ve
always treated my legal assistant as a partner. I think, unfortunately,
many young lawyers tend to forget that.
For me, a part of the key to success is how you deal with
people. You respect people, you get respect back. If you are not
nice to someone, they will not be nice to you. It all goes back
to your reputation. Be mindful of how you treat others because
that is how you are going to be seen going forward.
Treasurer Horvat: Looking back at your legal career, is there
anything you would do differently?
Justice O’Bonsawin: No! No, really there isn’t. I have been fortunate
to have had a great career as in-house counsel. I was fortunate
throughout my career as a litigator to work on awesome
files. It was stimulating. For example, I went from being a pure
labour, employment, human rights lawyer at Canada Post to
going to the Royal [Ottawa Health Care Group] and specializing
in mental health and forensic law.
I really enjoyed every moment of my career. Of course, there
are things you are disappointed about along the way. I think
that is normal, but there is nothing that would make me change
my trajectory from where I first started to where I am now.
se contenter de se conformer? Quelle est votre approche avec les
jeunes ayant des différents points de vue?
Juge O’Bonsawin : Je n’ai jamais été conformiste. J’ai toujours
conseillé à ceux que j’encadre d’être eux-mêmes et de ne pas
oublier qui ils sont, parce que si vous changez qui vous êtes,
vous n’êtes pas fidèle à vous-même, à vos croyances et à vos
« Soyez conscients de la façon dont vous traitez
les autres, car c’est ainsi que vous serez perçus
par la suite. »
valeurs. Le meilleur conseil est d’être vous-même. N’oubliez
pas qui vous êtes, d’où vous venez, soyez humbles et attentifs
aux autres.
J’ai oublié d’ajouter une chose que j’ai toujours dite aux nouveaux
avocats, et je l’ai fait à la Cour suprême avec mes greffiers,
et c’est de toujours être respectueux envers votre adjoint juridique,
car cet adjoint est votre bras droit. Cette personne va
vous accompagner et s’assurer que vous disposez de ce dont
vous avez besoin. Cette personne est essentielle à votre travail
et à votre réussite.
Dans mon esprit, les adjoints juridiques sont des égaux et j’ai
toujours traité mon adjoint comme partenaire. Je pense que,
malheureusement, de nombreux jeunes avocats ont tendance
à oublier ça.
Pour moi, la clé du succès réside en partie dans la manière
dont on traite les gens. Quand on respecte les gens, on est respecté
en retour. Si vous n’êtes pas gentil avec quelqu’un, il
ne sera pas gentil avec vous. Tout revient à votre réputation,
soyez attentifs à la manière dont vous traitez les autres, car
c’est ainsi que vous serez perçus par la suite.
Trésorière Horvat : En repensant à votre carrière juridique,
y a-t-il quelque chose que vous feriez différemment?
Juge O’Bonsawin : Non! Vraiment, je ne changerais rien.
J’ai eu la chance d’avoir une excellente carrière en tant
qu’avocate-conseil. J’ai eu la chance, en tant qu’avocate
plaidante, de travailler sur des dossiers exceptionnels, du début
à la fin de ma carrière. Cela a été stimulant. Par exemple, je suis
passée de simple avocate en droit du travail, droit de l’emploi
et en droits de la personne à la Société canadienne des postes à
avocate en santé mentale et en médecine légale au Royal.
J’ai vraiment apprécié chaque moment de ma carrière. Bien
sûr, il y a des choses qui vous déçoivent en cours de route. Je
crois que c’est normal, mais il n’y a rien qui me ferait changer
de trajectoire depuis mes débuts jusqu’à aujourd’hui.
Trésorière Horvat : Quelle marque espérez-vous laisser au tribunal?
Juge O’Bonsawin : J’espère repartir avec la réputation d’être
quelqu’un qui était bien préparé pour entendre les demandes,
qui a rédigé des décisions qui étaient bien considérées et qui a
10 | SUMMER 2023 | THE ADVOCATES’ JOURNAL
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Treasurer Horvat: What mark do you
hope to leave on the Court?
Justice O’Bonsawin: I’m hoping to leave
with a reputation for being someone who
was well prepared to hear matters, who
wrote decisions that were well regarded,
and who moved the law forward in a
way that benefited society.
I hope to be seen as a value-added judge
who contributed in a positive, progressive
way, because I think moving the law forward
is critical for the Supreme Court of
Canada. To remain static is simply not good.
Treasurer Horvat: Do you have anything
else you want to tell the readers of The
Advocates’ Journal?
Justice O’Bonsawin: I would like to mention
mentorship, and how it played a
key role throughout my career. I’ve been
fortunate to have had different mentors
over the course of my professional life.
It doesn’t matter where you are in your
career. You can always find and benefit
from mentorship. Everyone can gain
from mentorship.
fait avancer le droit d’une manière qui a
profité à la société.
J’espère être considérée comme une
juge à valeur ajoutée qui a apporté une
contribution positive et progressiste. Je
crois qu’il est essentiel pour la Cour
suprême du Canada de faire progresser
le droit. La stagnation n’est tout simplement
pas acceptable.
Trésorière Horvat : Aviez-vous autre
chose à dire aux lecteurs de la publication
« The Advocates’ Journal »?
Juge O’Bonsawin : J’aimerais mentionner
le mentorat et le rôle clé qu’il a joué tout
au long de ma carrière. J’ai eu la chance
d’avoir différents mentors au cours de
ma vie professionnelle.
Peu importe où vous en êtes dans
votre carrière, vous pouvez toujours
trouver un mentor et en bénéficier. Tout
le monde peut tirer profit du mentorat.
J’ai eu un mentor pendant mes dix années
de pratique en droit de la santé mentale.
Certains diraient, « Non, vous êtes
censé apprendre cela par vous-même, »
I had a mentor during my ten years in
the mental health law part of my practice.
Some would say, “No, you’re supposed
to learn this on your own.” But I have
gained great knowledge through the different
mentors I had throughout my life.
For those counsel out there, be mindful
that mentorship is something positive.
It should not be seen as being weak or
as needing someone to help you. That
is something I want to share with readers.
Mentorship is always something
positive.
Treasurer Horvat: Do you have any final
words for our readers?
Justice O’Bonsawin: I hope that my story
will inspire others. Maybe some think
that because they come from a particular
community, or a diverse community,
they can’t make it all the way up.
I have always said that I was not necessarily
the first one that people would
think would make it to the Supreme
Court of Canada. I worked hard and
worked my way up. Everything is possible.
It’s doable!
mais j’ai acquis de grandes connaissances
grâce aux différents mentors que j’ai eus
tout au long de ma vie.
Pour les avocats, gardez à l’esprit que
le mentorat est quelque chose de positif.
Il ne faut pas percevoir une personne
mentorée comme une personne
étant faible ou ayant besoin d’aide. C’est
quelque chose que je veux partager avec
les lecteurs. Le mentorat est toujours
quelque chose de positif.
Trésorière Horvat : Avez-vous un dernier
mot pour nos lecteurs?
Juge O’Bonsawin : J’espère que mon histoire
inspirera les autres. Certains pensent
peut-être que, parce qu’ils viennent d’une
communauté particulière, ou d’une communauté
diversifiée, ils ne peuvent pas se
rendre jusqu’au bout.
J’ai toujours dit que je n’étais pas
nécessairement la première personne
dont on pensait qu’elle arriverait à la
Cour suprême du Canada. J’ai travaillé
fort et j’ai gravi les échelons. Tout est
possible, c’est faisable!
Mentorship: The advocate’s duty
The authors would like to thank their summer student and Law
Practice Program mentee, Sanan (Sunny) Mirza, for his invaluable
research assistance in the preparation of this article.
In Homer’s epic poem The Odyssey, during Odysseus’s long
journey home following the Trojan War, Athena – the goddess
of knowledge, wisdom, and civilization – took interest in
his success and undertook to watch over his son, Telemachus.
The goddess assumed the form of Odysseus’s friend, a human
elder named Mentor, offering the young Ithacan prince guidance,
advice, and instruction on a quest to find his wandering
father. Here, the concept of “mentorship” and the “mentor”
as an experienced and trusted advisor providing benevolent
guidance to a younger, less proficient pupil finds its origin.
As 21st-century advocates, far removed from the mythical
adventures of the ancient Greeks written 3,000 years ago,
our need for a judicious, caring mentor on our own journeys
through the practice of law is just as pressing. In a 2010 Ottawa
Law Review article on “Mentoring the Lawyer,” Veronica
Ashenhurst aptly noted:
Mentorship is a central component of a lawyer’s education:
it involves a reciprocal relationship between a senior and
junior lawyer, fostered in the workplace or broader professional
community. Today, the Canadian legal profession is
devoting significant energy to creating formal mentoring
programs beyond articling. 1
The past dozen years have seen a proliferation of emphasis
on and resources for effective mentorship in the legal profession
from law firms, law societies, LAWPRO, national, provincial,
and local bar associations, and The Advocates’ Society. 2
There has been a recognition that despite our hyperconnectivity
over social media, real and deep connection with trusted
colleagues, advisors, and mentors has been waning. Indeed,
emerging from the unprecedented disruption of COVID-19 on
how we worked, practised, and connected with colleagues,
staff, students, and mentor/mentees, 3 Peter made mentorship
a core theme and commitment of his term as president of The
Advocates’ Society. 4
Yet, more is needed than resources, how-to guides, and encouragement
to seek out or offer mentorship. Instead, we need
to shift the paradigm of mentorship from a voluntary service
those of us with a little more time, experience, and grey hair
might consider offering, to a professional responsibility essential
Peter W. Kryworuk and Jacob R.W. Damstra
to our duties as advocates. Unlike Athena and the other Greek
gods, whose interest in human affairs was often fleeting, fickle,
and selfish, we believe that as lawyers, and in particular as
advocates, mentorship is not an option, but a duty rooted
in the traditions of our profession and the rules and codes
governing our conduct.
Honouring the history
While the concept of a “mentor” has evolved beyond the myth
of a benevolent deity investing in the success of a human beneficiary,
we can trace a common thread from its ancient Greek
origins to modern mentorship across any industry. The original
word, inspired by Athena’s anthropomorphic intervention as
12 | SUMMER 2023 | THE ADVOCATES’ JOURNAL
THE ADVOCATES’ JOURNAL | SUMMER 2023 | 13

Mentor, means “mind or spirit” and “connotes a strong sense
of purposefulness and agency.” 5
Although the Oxford English Dictionary defines a “mentor”
as “an experienced and trusted advisor,” the core elements of
mentorship from ancient myths to modern advocates are similar.
They include:
l transfer: conveying knowledge or wisdom from the
experienced mentor to the learning mentee;
l trust: a relationship of mutual respect, loyalty, and confidence;
l trials: creating opportunities for learning by doing in a
supervised and supported environment;
l thought exchange: a forum for discussion about ideas and
options to solve problems, make decisions, and deal with
their consequences; and
l teaching: giving and receiving constructive feedback on
courses of action proposed or undertaken with emphasis
on areas for growth and improvement.
One resource on legal mentorship describes the role of mentoring
in the profession back in the 13th century, when English
judges provided for the apprenticeship of lawyers and direct
mentoring was therefore the only way lawyers could learn
their craft. This practice was essentially akin to our modern
clerkships, which are unanimously viewed as invaluable experiences
for the aspiring advocate, but the built-in constraints
of such judge-to-legal apprentice relationships limited the
number of new lawyers that could be mentored.
From there, the system of legal education through membership
in (and mentorship at) the Inns of Court developed, and the
modern concept of law societies evolved. Legal education
and mentorship at the Inns consisted of some combination
of lectures by experienced barristers (known as “benchers”),
listening to arguments in court, arguing moots presided over
by the benchers of the Inn, and discussing the law among
the students and benchers. The mentor-mentee relationship
was inherent in and fundamental to this system of legal education
and training, with more experienced benchers sharing
knowledge and offering guidance and direction to prospective
barristers. The Inns fostered an intimate setting for debate and
discussion about legal issues and advocacy which not all modern
advocates have access to beyond completing law school and an
articling term.
This apprenticeship-based legal education and mentorship
carried over from England to the colonies in Canada. As
Ashenhurst observed, when the Law Society of Upper Canada 6
was established in 1797 and for the following three decades,
apprenticeship formed “the heart of Convocation’s law-training
program.” Since the Law Society relied on the apprenticeprincipal
relationship as the primary vehicle for the professional
growth of new lawyers, a future lawyer depended “upon what
his master could and should teach him and upon what he could
pick up” through self-study. 7
By 1889, the Law Society of Upper Canada established a
permanent, mandatory law school at Osgoode Hall and made
classroom instruction compulsory for all Ontario law students,
marking a transition in legal education and mentorship to “a
hybrid of classroom instruction and articled apprenticeship.” 8
In Ontario, legal education shifted again in the mid-20th century
as the Law Society had largely relinquished its substantive
law-teaching function to law faculties in provincial universities
by 1957. 9 This change marked a shift in emphasis in the
education of aspiring lawyers to substantive and academic
learning at university as the predominant requirement in a
young lawyer’s training.
While the articling requirement in Ontario remains, there is
wide variability in the articling experience, and the rich tradition
of education through active mentorship in our profession
diminished over time as a greater premium was placed on
formal legal education in university law schools rather than
practical, experiential learning through hands-on mentorship.
Notwithstanding this shift, the past 50 years have seen
no shortage of exceptional advocates providing exceptional
mentorship. Indeed, it has been our observation that the advocates
who have risen to prominence at the top of their bars
have done so with the benefit of great mentorship and paid it
forward through their own commitment to mentoring the next
generation. J.J. Robinette is described as a Peerless Mentor,
for example, in Justice George Finlayson’s hybrid memoirbiography.
10 Douglas Laidlaw, a founding member of The
Advocates’ Society and namesake of the Society’s award for
excellence in advocacy (and mentorship), also comes to mind. 11
While we could fill many pages acknowledging great examples
for us all, we would be remiss not to share our appreciation
of the quintessential advocate-mentor, Earl Cherniak. Earl
became Peter’s first principal and mentor in 1982 and remains
a valued mentor four decades later, while also investing as
a mentor in Jacob’s litigation and appellate advocacy career
(among the careers of countless others over his 60-plus years
in practice.)
Interpreting the obligations
In addition to the traditions of mentorship being steeped in the
history of our profession, we can look to the Rules of Professional
Conduct prescribed by Canada’s provincial law societies to
ground our duty as advocates to provide mentorship. To our
surprise, the Rules and similar codes do not specifically mention
a professional responsibility to mentor. However, it is not
a strained interpretation to argue that the duty to mentor is
inherent in each advocate’s professional obligations.
Chapter 2 of the Rules in Ontario, for example, focuses on
integrity. Section 2.1-2 states: “A lawyer has a duty to uphold
the standards and reputation of the legal profession and to assist
in the advancement of its goals, organizations and institutions.”
While not specifically calling for mentorship, upholding the
standards and reputation of the profession implies a requirement
not just to do so ourselves, but to model and impart the highest
standards of the profession to the next generation of lawyers.
Assisting in the advancement of the profession’s goals, organizations,
and institutions also certainly demands a commitment to
developing aspiring, new, and young advocates.
The commentary to this rule supports this interpretation by
including the following guidance:
[1] Collectively, lawyers are encouraged to enhance the
profession through activities such as:
(a) sharing knowledge and experience with colleagues and students
informally in day-to-day practice as well as through
contribution to professional journals and publications,
support of law school projects and participation in panel
discussions, legal education seminars and university
lectures [emphasis added]. 12
The Rules thus encourage mentorship
through the sharing of knowledge and
experience with colleagues and students.
What is interesting is that the Rules refer
to informal sharing in day-to-day practice
on one hand, and a host of other,
more formal activities involving teaching
and writing on the other. There is
no discussion of, let alone requirement
to participate in, formal or structured
mentorship. In fact, there is no further or
other mention of mentorship in the Rules,
aside from the specific sections dealing
with an articling principal’s obligations.
Chapter 6, section 6.2-2, Duties of Principal,
prescribes particular mentoring
requirements on lawyers acting as an
articling principal:
A lawyer acting as a principal to a
student shall provide the student
with meaningful training and exposure
to and involvement in work
that will provide the student with
knowledge and experience of the
practical aspects of the law, together
with an appreciation of the traditions
and ethics of the profession. 13
It cannot be reasonably contended that
completion of an advocate’s articling term
brings an end to their need for meaningful
training; exposure to and involvement
in experiential and practical work;
or guidance on the traditions and ethics
of the profession. Arguably, articling
serves only to pour a foundation – after
which the need for guidance and mentorship
remains and even increases as
the remainder of the advocate’s structure
is yet to be formed.
In the absence of an explicit obligation
to mentor beyond the principal-student
relationship in articling, we think the
Rules can and should be interpreted holistically
to include a continuing duty on
all lawyers to provide the type of meaningful
training, work experience, knowledge
transfer, and teaching referred to
in section 6.2-2 to all students and colleagues
more broadly, both within and
beyond the bounds of our predominant
firm structures.
Making a mentor
Now that we have seen the history and
tradition of mentorship among advocates,
and the implicit role for mentorship prescribed
by our Rules of Professional Conduct,
what makes an advocate a mentor?
Mentorship relationships do not come
in any one form, size, or shape. Mentorship
can be part of a formal program
within a law firm or organization or it
can be a casual relationship between acquaintances.
Similarly, mentorship relationships
do not require a formal or longterm
commitment or agenda. Mentorship
can be in the form of periodic communications
and even a single conversation. It
is common for an advocate to have more
than one mentor. No doubt at times the
participants may not even appreciate that
they are involved in mentorship. Because
mentorship can occur in so many different
ways, the attributes of the “ideal” mentor
may also vary significantly, depending
on the circumstances, perspectives, and
needs of a particular mentee.
The traditional mentorship model for
advocates involves a more senior lawyer
acting as mentor for a younger lawyer.
This traditional model often involves the
associate lawyer working closely with
the senior partner. Mentorship often
occurs within the confines of working
together on files but can extend beyond
a file-based working relationship to involve
mentor-mentee pairs who do not
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14 | SUMMER 2023 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | SUMMER 2023 | 15

work together, are not in the same practice area, or are not even
members of the same firm.
One does not need to be a senior lawyer in order to play
the role of mentor. Often mid-career lawyers who themselves
are continuing to receive mentorship can act as very effective
mentors for younger counsel and are a valuable resource for
advice and support to the younger lawyer. Both senior and
mid-career lawyers can provide valuable mentorship advice
for younger advocates.
Being a mentor comes with responsibilities and should not
be undertaken lightly. There are many elements to a good mentorship
relationship. As noted in The Advocates’ Society’s 2023
Mentoring Guide, a mentor may be able to help a mentee:
l analyze specific or general legal issues;
l explore ways to expand or narrow the mentee’s practice
area;
l connect with other practitioners in a particular practice
area, geographic region, or demographic;
l as a sounding board for ethical dilemmas;
l with transitions (return to work after parental leave) or
changing career paths;
l improve practice management skills;
l with advice on work-life balance; or
l develop their advocacy style and the requisite skills of a
successful advocate. 14
A good mentor will demonstrate a number of important
characteristics; namely, they:
l will be a good listener;
l will show that they have an interest in the mentee’s wellbeing;
and
l will be available and will give the mentee the time they
require.
A good advocate must have excellent communication skills,
which include being a good listener. Advocates must listen to
their clients, listen to their opponents, and listen to the courts.
A good mentor makes the conversation about the mentee and
seeks to identify the mentee’s concerns and identify areas where
mentorship is needed. By asking questions that focus on the
mentee, the mentor not only gains important information about
the mentee but also shows that they care and want to help.
The mentorship relationship is not about the mentor, and
the conversation should not focus on the mentor. Professional
and personal experiences and decisions made by the mentor
should not be the focus of attention. What worked for the mentor
might not be appropriate. Of course, where the mentee is
interested in the mentor’s experiences and decisions, the mentor
should not be closed off, limiting the trust that might be
formed in the relationship or depriving the mentee of lessons
that might be learned from the mentor’s stories.
The mentor uses their own experiences, both positive
and negative, to help inform their advice and counsel. The
mentor’s experience can be used to provide reassurance to
the mentee that they are not alone in facing various career
issues. It is not the role of the mentor to tell the mentee how
to do things or to suggest that what worked for them will necessarily
work for the mentee. Rather, the mentor will seek to
understand the mentee’s circumstances and provide thoughtful
advice, reassurance, and assistance as may be appropriate
in the circumstances.
Depending on the nature of the mentorship relationship,
the mentor may be providing training related to the practice
of law, advocacy skills, legal practice skills, and time- and
stress-management skills. The mentor may also address the
work-life balance challenges that all advocates face. In some
cases, advocates may find they share a common interest outside
of the practice of law, such as travel or fitness. The mentor
must build a relationship with the mentee that will form the
foundation of mentorship.
The mentee’s mindset
Making the most of mentorship is not the exclusive responsibility
of the more experienced lawyer acting as mentor in the relationship.
A mentee has an equivalent duty to actively engage in
the mentorship process. While a good mentor takes an interest
and makes an investment in the mentee’s growth and development,
ultimate responsibility for an advocate’s skill development
and career progression rests with that particular lawyer.
Accordingly, the mentee’s participation in a mentorship
relationship cannot be passive. For the mentee to maximize
the benefits to the guidance offered by the mentor, they must
take ownership of their mentorship and development. This
means the mentee, not the mentor, should offer to undertake
the administrative requirements of the mentoring relationship,
which could include preparing a mentorship agreement, drafting
a mentoring plan or proposed calendar, identifying target
or focus areas the mentee is most interested in, requesting and
scheduling meetings, booking meeting space or making reservations
(as needed), and documenting the advice given by the
mentor and the mentee’s progress toward established goals.
Being an active mentee – or a “tormentee,” to borrow a
phrase from one of Jacob’s mentors, Justice Peter Lauwers of
the Court of Appeal for Ontario – also requires the junior participant
in the relationship to seek out and accept increasingly
more difficult or complex assignments, more responsibility,
and advocacy opportunities under the mentor’s supervision.
It is only by consistently venturing to the edge of our comfort
zone that we are able to achieve growth. A “tormentee”
eagerly (and respectfully) follows up for feedback and tips
for improvement on the work they have completed or the
advocacy they have performed. They listen to that feedback
with humility, and they make best efforts to incorporate their
mentor’s advice moving forward.
The active mentee should be well prepared for every mentorship
session – whether formal or informal. When a mentee is
seeking a mentor’s guidance on a complex legal case or a difficult
ethical question in a formal mentorship meeting, for example,
it is important not simply to present the problem and expect
the mentor to offer a solution. Instead, the mentee should come
prepared with a description of the issue, a selection of possible
courses of action including the pros and cons of each, the mentee’s
instinctive choice together with the reasons for it, and an
open mind to hear the mentor’s thoughts. Merely undertaking
the process of preparing for a mentorship session in this manner
will make us better lawyers and advocates, regardless of the
ultimate course of action taken – and will be far more beneficial
than simply accepting the solution offered by the mentor.
It is also important that the mentee capitalize on opportunities
for informal mentorship. Drive time to or from discoveries,
walking back to the office after court, impromptu lunches,
and networking events with the mentor are all excellent
occasions for the mentee to learn and
grow. These situations are well suited for
informal conversations about marketing
and business development strategies,
client- and referral source–relationship
management, career progression within
one’s firm, participation in the legal profession
or contributions to the advocate’s
community, or even lessons learned from
favourite (or least favourite) cases – after
all, what advocate doesn’t love telling
war stories?
We have also found that mentorship
is decidedly not unilateral – it is a twoway
street. The mentor also learns from
the mentee, has horizons broadened, and
gains empathy and understanding of the
challenges faced by their mentees. The
concept of “reverse mentoring” – a junior
colleague mentoring someone more
senior, with the intention of helping
the senior colleague develop new skills
and connect with the younger generation
– has been around for a while in
the business world. 15 Typically touted
as an effective means of teaching the
senior participant digital and technical
skills or exposing the senior colleague to
different perspectives – which promotes
diversity and drives cultural change –
reverse mentoring also offers the junior
colleague a forum to gain confidence as a
value-added member of the relationship.
Just how indispensable effective reverse
mentoring can be came to a sharp point
in the height of the COVID-19 pandemic
when our justice system shifted entirely
to e-filing and virtual hearings. Senior
advocates who successfully and seamlessly
transitioned did so in large part
thanks to their trust in and reliance on
their juniors, who turned the tables and
mentored the senior lawyers through the
effective navigation of the virtual platforms
that quickly became ubiquitous.
Done right, mentorship strengthens all
participants.
Finally, just as established advocates
have a duty to mentor newer lawyers,
so too do young advocates, though still
mentees themselves, have a duty to pay
it forward. Unlike the ancient Greek origins
and the traditional notions of mentor
as the wise elder or the grey-haired sage,
the reality is that each of us, regardless
of our age and stage, is at least slightly
innovative. integrated. iterative.
further ahead on the path than someone
else, with lessons learned and guidance
to offer.
Further, a younger advocate, though
perhaps less experienced than a 30-year
call or a seasoned litigator, is far closer
to the current experience of an articling
student or a brand new call. As a result,
that younger advocate may be able to
better connect with and understand the
needs and concerns of a peer or a slightly
more junior colleague: They will have
more recent memory of being in the same
or a similar position, and they may be a
less intimidating figure from which to
seek mentorship.
This is not an “either-or” proposition.
A new and aspiring advocate would be
very fortunate to learn from a variety of
mentors at different stages in their careers,
with different skills, experiences,
and perspectives to share.
Conclusion: The advocate’s duty
Mentorship has always been an important
part of the life of the advocate. It is a
long-standing tradition. Advocates have
a common bond that is reflected in the
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collegiality and the respect we show to
each other.
Mentorship is a commitment we make
as advocates and can be used through
the course of our professional lives.
Mentorship of advocates is essential to
the profession, and it is essential to the
effective administration of justice. It is
critical that advocates continue to train
and develop the next generation. While
all lawyers receive a formal legal education
and many receive some form of
advocacy skills training, mentorship has
always been and remains a key element
in the development of every successful
advocate.
Mentorship skills are not taught in law
school, nor do they form part of the bar
admission requirements. There are no
explicit mentorship obligations in the
Rules of Professional Conduct, nor in any
statute or regulation. While mentorship
is a well-established tradition of the bar,
it is much more than simply tradition.
Every advocate has the professional
duty to mentor the next generation of
Notes
1. Veronica Ashenhurst, “Mentoring the Lawyer, Past and Present:
Some Reflections,” Ottawa Law Review 41:1 (2010) 125–53.
2. The Advocates’ Society Mentoring Guide (2023); The Advocates’
Society, Guide to Mentoring (2017), online: < https://www.advocates.
ca/TAS/Community_Events/Mentoring_TAS_Mentoring_Portal/
TAS/Community_Events/Mentoring.aspx?WebsiteKey=06cf22b6-
e7ad-4e74-b12b-196172e60ffc>.
3. Michelle Foster, “Another Pandemic Loss: Mentorship,” Forbes
(July 2022); online: .
4. The Advocates’ Society Mentoring Guide (2023), Introduction.
5. Núria Casado-Gual, Emma Domínguez-Rué, & Maricel Oró-Piqueras,
eds, Re-discovering Age(ing): Narratives of Mentorship (Bielefeld,
Germany: Transcript-Verlag, 2019).
6. Our references to the Law Society of Upper Canada are not intended
to exclude other provincial law societies, but merely to exemplify the
point. It is beyond the scope of this article to delve deeply into the
history and development of legal education and mentorship across
the country.
7. Ashenhurst, supra note 1 at 135, citing William Renwick Riddell, The
Legal Profession in Upper Canada in Its Early Periods (Toronto: Law
Society of Upper Canada, 1916), 38.
8. Ashenhurst, supra note 1 at 137, citing Curtis Cole, “’A Hand to Shake
the Tree of Knowledge’: Legal Education in Ontario, 1871–1889,”
Interchange: A Quarterly Review of Education 17:3 (1986) 15 at 25.
advocates. Mentorship is an important
part of the duty owed by every advocate
to the profession, to the courts, and to
the community they serve.
The recent pandemic has disrupted the
lives of all advocates, both professionally
and personally. The ongoing effects
have weighed heavily on all advocates,
but particularly, on our newest and more
junior advocates. The practice of advocacy
has changed considerably. The use
of technology now allows advocates to
work remotely. A great deal of our advocacy
before the courts now occurs
virtually. The ability of advocates to
interact with each other has been impacted
by the reduced opportunities to “walk
down the hallway” to speak with a colleague
or step outside the courtroom
or into the robing room for conversation
with the opposing counsel or other
colleagues at the bar. These changes have
not only impacted our ability to access
formal mentoring but also hampered
the informal mentoring that can occur
when networking and engaging in social
interactions with our colleagues.
Mentorship continues to be important
and relevant; in fact, we think it is more
important than ever. Recent changes in
our practice and the use of technology
means that the form of mentorship must
also evolve and change to meet the current
needs of young advocates. All of us,
as advocates, have a duty to engage in
mentorship relationships.
The Advocates’ Society, which has always
embraced mentorship as one of its
core objectives, strives to promote and
foster mentorship through educational
programs and other initiatives that create
a variety of mentorship opportunities for
its members. However, we as advocates
must do our part. We must acknowledge
our duty to mentor and be mentored.
We must make the commitment, and
we must engage in the process. Being a
mentor is a most rewarding experience,
which all advocates must embrace. The
advocates of today bear a responsibility
to ensure that we develop the advocates
of tomorrow.
9. Ashenhurst, supra note 1 at 137, citing C Ian Kyer and Jerome E
Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers, and Legal
Education in Ontario 1923–1957 (Toronto: The Osgoode Society, 1987).
10. George D Finlayson, John J. Robinette, Peerless Mentor: An Appreciation
(Toronto: Dundurn Press, 2003).
11. The Douglas K. Laidlaw Medal for Excellence in Advocacy; online:
.
12. See also Code of Professional Conduct for British Columbia, s 2.2-2 (BC Code);
Law Society of Alberta Code of Conduct, s 2.1-2 (Alberta Code); Nova Scotia
Barristers’ Society Code of Professional Conduct, s 2.1-1 (NS Code). The
other provincial law societies have identical or similar provisions in
their Rules or Codes.
13. See also BC Code, s 6.2-2; Alberta Code, s 6.2-2; NS Code, s 6.2-2.
14. The Advocates’ Society Mentoring Guide (2023) at 7.
Generational Learning and Developing Millennial Leaders,” Human
Resource Management 51:4 (July/August 2012); Jennifer Jordan and
Michael Sorell, “Why Reverse Mentoring Works and How to Do It
Right,” Harvard Business Review (Oct. 2019); online: ;
Maggie Wooll, “Reverse Mentorship Is One More Key to
Developing and Retaining Top Talent, BetterUp (Jan. 14, 2022); online:
.
Rethinking credibility
Cheryl Woodin, Anil K. Kapoor, and Sidney Brejak
What is credibility? What are we assessing when we
conclude that a witness is credible?
In this article, we explain that credibility is an assessment
of demeanour; nothing more, nothing less. As such,
credibility is a questionable metric to assess a witness’s truthfulness.
Instead, trial courts should focus on the reliability of
evidence to determine truthfulness. We need to appreciate
the weakness of credibility assessments against the relative
strength of reliability assessments in determining the truthfulness
of witnesses to improve how we make factual findings.
Assessing credibility has been an essential building block
of our trial system for a long time. When a witness takes the
stand, a trier of fact assesses not only the content of their
CONTEMPORARY ADVOCACY
evidence but also whether the witness is credible: Can the
witness be believed? Historically, credibility played a foundational
role in our justice system. The pandemic has caused
a reassessment of many of our long-held views, such as the
value of in-person trials. Credibility is similarly in need of a
reassessment.
Credibility assessments may serve as an impediment to just
and fair outcomes by unfairly focusing the trier of fact on the
manner and form of a witness’s evidence. Judges and lawyers
must recognize the fallibility of credibility assessments and
search for better alternatives, such as deciding cases on a paper
record that focuses on an objective assessment of reliability.
Where the trier of fact is a jury, we urge a reconsideration of
our standard jury instruction to no longer direct jurors to apply
their common sense of whether a witness is telling the truth
because that condones a resort to prejudice and stereotypes
which are unreliable predictors of veracity.
Ultimately, we urge a critical examination of whether credibility
assessments actually create fairer outcomes in our justice
system. We doubt they do. Credibility in the way we have long
viewed it should no longer hold a front seat in the courtroom.
Background and definitions
History of credibility and demeanour
Demeanour has always been seen as integral to assessing a witness’s
credibility and has deep roots in the Anglo-Canadian
legal system. In England, as far back as the 1600s, in Fenwick’s
Trial, counsel for the accused objected to the consideration of a
sworn hearsay statement, arguing: “Our law requires persons
to appear and give their testimony viva voce; and we see that
their testimony appears credible, or not, by their very countenances,
and the manner of their delivery.” 1 In Canada in the
1880s, Chief Justice Ritchie in McKay v Glen wrote that “the
demeanour and manner of the witnesses are very material elements
in judging of their credibility.” 2
These historical roots influence modern Canadian jurisprudence,
as courts across the county have accepted the usefulness
of credibility when deciding the believability of witnesses. In
R v NS, the Supreme Court of Canada affirmed that the ability
to see a witness’s face is an important feature of a fair trial,
and that “[c]hanges in a witness’s demeanour can be highly
instructive.” 3 Respectfully, demeanour is possibly the least
reliable metric by which to consider a witness’s evidence.
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Definitions: Reliability, credibility, and demeanour
The meanings of reliability, credibility, and demeanour are at
the heart of this discussion. The Supreme Court of Canada in
R v GF described reliability as a witness’s ability to observe,
recall, and recount events accurately. 4 Courts often look to a
number of objective factors to assess the reliability of testimonial
evidence, including whether the witness’s evidence
is internally consistent, consistent with the documentary
evidence, or consistent with the evidence of other witnesses;
whether the witness has sufficient power of recollection
and recall, including the circumstances in which the observation
was made; and whether the witness had an opportunity
and ability to observe the factual matters about which
they testified. 5
Reliability is not a scientific measurement; the trier of fact
has a broad discretion in determining to what extent a witness’s
reliability is impacted by the presence of bolstering or
diminishing factors. However, the strength of reliability is it
subjects a witness’s story to an objective examination of its
consistency with the probabilities affecting the case as a whole
as shown by the evidence to be in existence at the time. 6
The Supreme Court of Canada has defined credibility as
a witness’s sincerity or honesty – essentially, the witness’s
willingness to speak the truth as they believe it to be. 7 Credibility
is often assessed by observing the demeanour of the
witness. In R v NS, the Supreme Court of Canada described
demeanour as how a witness gives their evidence and responds
to cross-examination; in her dissent on another issue, Justice
Abella characterized demeanour as “every visible or audible
form of self-expression manifested, whether fixed or variable,
voluntary or involuntary, simple or complex.” 8 Courts often
rely on a witness’s eye contact, forthrightness, confidence, and
tone/volume of voice when observing demeanour.
Credibility and reliability are distinct concepts, with credibility
being determined primarily by a witness’s demeanour
and conduct when testifying. The fact that a witness deemed
credible may still give unreliable evidence is illustrative of the
distinctiveness of the two concepts. As one judge in British
Columbia put it, “credibility addresses whether a witness is
lying, whereas reliability is about honest mistakes.” 9 Another
approach, one which appears to be implicitly used in many
trial decisions, is that credibility is a global determination of
the believability of a witness and therefore encompasses both
the sincerity and the accuracy of the testimony. Put mathematically
“credibility = reliability + demeanour.” 10
Justice Watt put the difference this way:
Credibility and reliability are different. Credibility has to
do with a witness’s veracity, reliability with the accuracy
of the witness’s testimony. Accuracy engages consideration
of the witness’s ability to accurately
i. observe;
ii. recall; and
iii. recount events in issue.
Any witness whose evidence on an issue is not credible cannot
give reliable evidence on the same point. Credibility, on the
other hand, is not a proxy for reliability: a credible witness may
give unreliable evidence. 11
Regardless of the approach, it is apparent that factors which
go to assessing credibility are multi-faceted and include the
unspoken criterion of a trier of fact’s belief of how an honest
person comports themselves – the badges of honesty.
Courts often use the same factors to assess both credibility
and reliability, and they have not created a list of factors
exclusive to either concept. For example, inconsistencies can
lead a trier of fact to doubt the honesty of a witness or doubt
the accuracy of their evidence. 12 Similarly, if a witness has an
interest in the outcome of the case, one can view their sincerity
or the accuracy of their evidence as tainted. However, a closer
look at the factors that go to assessing credibility and reliability
reveal that all factors, except for demeanour, can be, and should
be, considered as going to reliability, rather than credibility.
Reliability requires an objective assessment of the witness’s
evidence, testing it against the other evidence on the record and
its consistency with the surrounding probabilities with respect
to the facts of the case. It mandates justification and logical coherency.
If a factor is viewed through the prism of credibility,
however, the evidence becomes susceptible to the subjective
point of view of the trier of fact and their personal belief of what
an honest and sincere witness should look like.
However, demeanour is the only factor that can be said to
exclusively go to credibility, as no method exists to assess
demeanour objectively. 13 Although experts are often used to
provide an objective explanation for the behaviour of specific
types of witnesses – such as sexual assault complainants –
experts cannot be used to explain the behaviour of a specific
witness in any given case. The demeanour of a witness can
be assessed only from the subjective point of view of the trier
of fact, leaving it as the only factor that cannot fall under the
objective supervision of reliability.
Limits of assessing demeanour
Permitting an assessment of demeanour to determine credibility
allows triers of fact to rely on their own prejudices,
stereotypes, and subconscious understanding of what a truthful
person looks like – all impermissible and pernicious. There
is no demeanour that universally demonstrates veracity; demeanour
is not diagnostic. In 1952, the British Columbia Court
of Appeal wrote: “[I]f a trial judge’s finding of credibility is
to depend solely on which person he thinks made the better
appearance of sincerity in the witness box, we are left with a
purely arbitrary finding and justice would then depend upon
the best actors in the witness box.” 14
Demeanour is a poor indicator of honesty or truthfulness.
Every day, people are duped by a smooth-talking con artist,
or they attribute malicious intent to an honest person merely
because something “just feels off.” Some people can’t help
that their demeanour does not align with the fact that they
are telling the truth. Malcolm Gladwell, in his book Talking to
Strangers, defines these people as “mismatched” – their external
behaviour and demeanour do not match with their inner
character or state of mind. 15 Without a doubt, all counsel can
think of a client or potential witness who was mismatched and
dreaded taking the stand because, regardless of how truthful
they were, they present like a liar. As one judge of the Tax
Court of Canada recounted, “I have seen some accomplished
liars who will look you straight in the eye and come out with
the most blatant falsehoods in a confident, forthright and frank
way, whereas there are honest witnesses who will avoid eye
contact, stammer, hesitate, contradict themselves, and end up
with their evidence in a complete shambles.” 16
We are terrible at detecting lies
The unreliability of demeanour is borne
out in empirical research. 17 When it
comes to detecting lies, the accuracy
of the average person is no better than
chance – flipping a coin yields a similar
outcome. 18 The rate is not much better
for so-called “professional lie catchers”
(e.g., police officers, customs officers,
judges) who succeed in sorting truth
from a lie only about 56 percent of the
time. 19 The reason for this is, contrary to
popular belief, there are no telltale signs
of a liar; and those behaviours that are
commonly associated with either lying
or telling the truth are easily faked.
Behaviours associated with lying, such
as shifting in one’s seat or fidgeting,
stuttering, or hesitation while speaking,
or breaking or failing to maintain eye
contact, are also signs of genuine stress
or anxiety. 20 It is impossible to determine
if those behaviours are because the
witness is lying or otherwise reacting to
the stressful, uncomfortable, and sometimes
embarrassing process of testifying.
An average person will experience
these behaviours more readily in the
artificial and unfamiliar environment
of a courtroom while being subjected to
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rigorous cross-examination by someone
who seeks to portray them as either a liar
or unreliable.
The influence of culture
and the threat of stereotype
Culture and stereotypes also play an outsized
role in assessing demeanour. This
was affirmed by the Court of Appeal for
Ontario in R v GMC, where it held that
“demeanour is of limited value because
it can be affected by many factors including
the culture of the witness [and]
stereotypical attitudes …” 21 An individual’s
culture, background, and manner of being
raised affect how they speak, which
includes how they regulate the tone/
volume of speech; and how they behave,
which includes displaying emotion,
body language, and gaze. 22 For example,
judges often look to eye contact and
posture while speaking when assessing
the credibility of a witness – maintaining
eye contact and speaking confidently is
generally seen as bolstering credibility,
whereas a lack of eye contact and speaking
timidly diminishes credibility. However,
contrary to these Western norms, in some
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authority is seen to represent defiance
and disrespect, not honesty. 23
Confirmation bias
Because a trier of fact assesses demeanour
by how they “feel” the witness presented/performed
on the stand, using
demeanour to assess credibility risks
triggering confirmation bias – the tendency
to cherry-pick evidence that confirms
existing beliefs, and to disregard
counter-evidence. However, while triers
of fact must always guard against falling
prey to confirmation bias, permitting the
assessment of demeanour allows for confirmation
bias to threaten trial fairness.
For example, in R v S(W), the trial judge
believed the complainant’s evidence
solely on the basis of her demeanour and
then proceeded to ignore the absence of
confirmatory evidence, and the credibility
of witnesses who contradicted the
complainant. 24 While the trial judge’s
confirmation bias in R v S(W) was reversed
on appeal, it was only because
the error was apparent in their reasons.
In most cases, the presence of confirmation
bias is clear in the reasons, or, in the
case of jury trials, completely invisible.
To be clear, the presence or absence
20 | SUMMER 2023 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | SUMMER 2023 | 21

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of confirmatory evidence is neither necessary nor required to
assess the reliability of a witness’s story, especially in sexual
assault cases or for so-called “unsavory witnesses.” Reliability
is assessed based on the totality of evidence, and confirmatory
evidence is one factor among many that may be considered
and weighed. The Court of Appeal for Ontario in R v S(W)
recognized this when it noted that “confirmatory evidence or
corroboration is no longer required to support a conviction but its
absence from this case is significant in the light of the considerable
evidence contradicting the appellant’s allegations.”
Appellate review
Unfortunately, unless it is obvious in a trial judge’s reasons,
like it was in R v S(W), the improper use of demeanour will
go undetected. Because of the deference appellate courts
give to a trial judge’s assessment of credibility, the use of
demeanour in ways which undermine the administration of
justice and threaten trial fairness are all but immune from
appellate review. Conversely, reliability is far more easily reviewable
by appellate courts, as it is based on an objective
assessment of the whole of the evidence rather than a trial
judge’s subjective assessment.
However, in recent years, appellate courts have chipped
away at the importance of demeanour in assessing credibility. 25
Although R v NS still stands as binding authority that the demeanour
of a witness can be instructive, appellate courts have
gingerly sought to limit its impact by holding that relying solely
on demeanour or giving undue weight to demeanour is a
reviewable error. 26 Slowly but surely, the use of demeanour is
fading. To draw on the phrase that is at the heart of Canadian
evidence law, the prejudicial effect of demeanour evidence
clearly far outweighs any probative value it may have.
In sum, what is credibility if it is not an assessment of demeanour?
The veracity of the witness is assessed by asking whether
the witness seemed believable. This surrenders the assessment
of credibility to the common sense of the trier of fact
which, respectfully, allows for impermissible stereotypes and
prejudices to influence the trier of fact’s assessment of the evidence.
If we control for demeanour, that is to say eliminate any
consideration of it from the credibility assessment, we will see
that there remains precious little left to the credibility assessment.
By definition credibility is about the witness’s honesty, not
their reliability/accuracy. It directs the trier to assess the witness
by the trier’s own sense of what a credible witness is like. It is
almost entirely an assessment of manner, form, and demeanour.
By contrast, reliability is about accuracy and, where available,
confirmation, which ought to be the issue in any trial.
The path forward
Fair adjudication from a paper record: Summary judgment
Despite the confusion that exists about how the concepts of
reliability, credibility, and demeanour relate to each other, we
see that the testimony of a witness can be assessed by a trier of
fact both objectively (reliability) and subjectively (demeanour).
This distinction is an important one when we recognize the
frailties of a trier’s subjective assessment. It is also a useful one
to build upon as we consider how to create the fairest possible
outcomes in our adversarial system.
One way to eliminate any reliance on demeanour is to determine
disputes on a paper record.
In 2014, the Supreme Court of Canada in Hryniak v Mauldin
heralded a paradigm shift in civil litigation. 27 The case concerned
the application of new fact-finding powers granted
to motion judges in Ontario on summary judgment motions
to weigh evidence, draw inferences, and evaluate credibility
entirely from the paper record. 28 On a motion for summary
judgment, the record is usually made up of affidavits and
cross-examination on those affidavits before an official examiner.
Regarding the new fact-finding powers, including the
ability to evaluate credibility, the Supreme Court of Canada
was clear that a documentary record “is often sufficient to resolve
material issues fairly and justly.” 29
If necessary, to support the fact-finding powers, a motion
judge may order a witness give viva voce evidence – this is
often done when the motion judge does not feel confident that
they can fairly assess credibility where credibility is important
to determining key issues. It could be argued that this power
cuts against the proposition that seeing and hearing a witness
testify is of limited value. However, a close look at the jurisprudence
suggests otherwise. When a motion judge decides to
hear oral evidence on a summary judgment motion, it is often
to test the reliability of the witness and their evidence. 30 In fact,
motion judges have rejected using this power where the only
apparent reason is to observe the demeanour of the witness
while they testify. For example, in the 2019 summary judgement
decision Pavlovic v Vankar, Justice Nightingale declined
to hear oral evidence from witnesses to assess their demeanour,
noting the distorting effects of culture, stereotype, and the
artificiality and pressure of the courtroom. 31 Similarly, other
motion judges have found that little is gained from an oral
hearing if its only purpose is to assess demeanour. 32
The expanded summary judgment powers, and the guidance
from the Supreme Court of Canada in Hryniak, illustrate that
the old way of interrogating a witness in open court in front of
the trier of fact may be an antiquated approach in our modern
understanding of justice and fairness – or, in the words of the
Court, “the standard for fairness is not whether the procedure
is as exhaustive as a trial, but whether it gives the judge
confidence that she can find the necessary facts and apply the
relevant legal principles so as to resolve the dispute.”
The need for better jury charges
In many criminal matters, the fact-finding mission is undertaken
by juries who are not legally trained. The present jury
instruction needs to be revised to eliminate an instruction that
directs jurors to rely on their own prejudices and stereotypes.
Our present jury charges explicitly instruct jurors to use their
own “common sense” when observing witness testimony as a
guide to determine if the witness is believable. For example, in
Ontario our standard instruction tells jurors to “use the same
common sense that you use every day in deciding whether
people know what they are talking about and whether they are
telling the truth” and suggests that the jurors ask themselves,
Did the witness seem honest? and What was the witness’s manner
when he/she testified? Respectfully, permitting a juror’s
common sense as a standard to assess credibility opens the door
for jurors to rely upon their own prejudices and stereotypes to assess
if the witness meets the juror’s common sense test of how an
honest, truthful person would testify. It is an invitation to permit
reliance on demeanour.
We trust jurors to be diligent fact finders,
to seriously consider and weigh all the
evidence before them, and to return
a verdict based on the evidence. It follows
that we ought to steel jurors against
relying on demeanour and their common
sense to reveal whether someone
is lying, even if some will not follow the
instruction. This is because it is right to
do so because there is no common sense
understanding of how to tell if someone
is lying. Rather, jurors should be asked
Notes
1. Fenwick’s Trial (1696), 13 Cobb. St. Tr. 537 (Parl.).
2. McKay v Glen (1880), 3 SCR 641.
3. R v NS, 2012 SCC 72 at paras 21–26.
4. R v GF, 2021 SCC 20 at para 82.
5. See, e.g., Wilson v Sinclair, 2022 ONSC 2154, para 18, for a more
extensive list of credibility and reliability factors.
6. Faryna v Chorny (1951), [1952] 2 DLR 354 (BCCA).
7. R v GF, 2021 SCC 20 at para 82; R v Morrissey (1995), 22 OR (3d) 514
(CA).
8. R v NS, 2012 SCC 72 at paras 25, 98.
9. R v PMM, 2019 BCPC 92 at para 67, cited favourably in R v Plehanov,
2019 BCCA 462 at para 51.
10. See, e.g., Kim v Baldonero, 2022 BCSC 167 at para 62, where the court
states, “Credibility has two components – honesty and reliability.”
11. R v HC, 2009 ONCA 56 at para 41.
12. In R v Khesro-Mohamed-Rasheed, 2023 ONCJ 88 at para 15, the court
stated that “[w]here an inconsistency involves something material
about which an honest witness is unlikely to be mistaken, the
inconsistency may demonstrate a carelessness with the truth about
which the trier of fact should be concerned.” Conversely, in R v
Grimes, 2023 NLSC 20 at para 92, the court noted that “a series of
inconsistencies may become quite significant and cause the trier of
fact to have a reasonable doubt about the reliability of the witness’s
evidence.”
13. See R v RD, 2017 ONSC 1856 at para 78, where the court wrote,
“[T]his case is primarily concerned with the reliability of the
complainant’s memory rather than his credibility as a witness,
and reliability is difficult to determine on the basis of testimonial
demeanour.”
14. Faryna v Chorny (1951), [1952] 2 DLR 354 (BCCA).
15. Malcolm Gladwell, Talking to Strangers: What We Should Know About
the People We Don’t Know (Boston: Little, Brown, 2019).
to focus solely on a witness’s reliability
and come to conclusions based on that
assessment alone.
Conclusion
Assessing the evidence given by a witness
is not, and never will be, a science.
However, that does not mean we should
surrender believability to improper,
stereotypical, and biased conclusions
based on what we think an honest witness
sounds like. Permitting demeanour-based
16. Faulkner v MNR, 2006 TCC 239 at para 14.
credibility assessments risks profound
unfairness to witnesses who may not
comport to a majoritarian understanding
of what is a truthful witness. Focusing on
reliability will minimize the risks inherent
in credibility assessments. Ultimately,
in our pluralistic multicultural society,
our assessment of truthfulness cannot
turn on a false notion that there is a universal
way to assess credibility. Instead,
we should anchor our search for the truth
in a search for reliable evidence.
17. See Anna SP Wong, “Looks Can Be Deceiving: The Irrelevance
of Demeanour in Witness Assessments” (2020) 68 Crim LQ 345
for a comprehensive breakdown of the fragilities of demeanour
evidence; much of the evidence cited in this section is based on
her work.
18. Ibid 14, citing Charles F Bond Jr and Bella M DePaulo, “Accuracy
of Deception Judgments” (2006), 10:3 Personality and Social
Psychology Review 214.
19. “Looks Can Be Deceiving,” supra note 17, citing Aldert Vrij,
20. Ibid.
Detecting Lies and Deceit: Pitfalls and Opportunities, 2nd ed (New
York: Wiley, 2008).
21. R v GMC, 2022 ONCA 2 at para 68.
22. “Looks Can Be Deceiving,” supra note 17.
23. Ibid, citing Anjanie McCarthy et al, “Cultural Display Rules Drive
Eye Gaze During Thinking” (2006), 37:6 J Cross Cult Psychol 717.
See also R v Hainnu, 2011 NUCJ 14 at para 45.
24. R v S(W) (1994), 18 OR (3d) 509 (CA).
25. See, e.g., R v GMC, 2022 ONCA 2; R v Ramos, 2020 MBCA 111; R v
Wolff, 2019 SKCA 103; YCJA – 1710, 2017 QCCA 757.
26. R v Hemsworth, 2016 ONCA 85 at paras 44–45.
27. Hryniak v Mauldin, 2014 SCC 7.
28. Rules of Civil Procedure, RRO 1990, Reg 194, rr 20.04(2.1)(2.2).
29. Hryniak v Mauldin, 2014 SCC 7 at para 57.
30. See, e.g., 2212886 Ontario Inc. v Obsidian Group Inc., 2018 ONCA 670,
where the court found that the motion judge erred in not calling
oral evidence of a witness who was not cross-examined to explore
weaknesses and inconsistencies in his evidence.
31. Pavlovic v Vankar, 2019 ONSC 61 at para 47.
32. See, e.g., Maxwell v Altberg, 2022 ONSC 3680 at para 68.
24 | SUMMER 2023 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | SUMMER 2023 | 25

REFLECTIONS OF AN ADVOCATE
Town mouse
Neha Chugh
My trial starts in five minutes. I am somewhere between
the satellite courthouse and the 400-series highway I
exited 20 minutes ago. There is a tractor in front of
me and a few cars behind me. Every now and then a large, bold
pickup overtakes me. Snowdrifts blow off the farms adjacent
to the one-lane highway, reducing visibility. Cell reception is
limited. I know that when I get closer to the courthouse, I will
see that my client, the Crown, and my office were trying to get
through to me. I continue driving 35 kilometres an hour, turning
down my podcast so I can enjoy the silence of the kid-free and
client-free time. Full-time lawyer, full-time mom. I have the best
jobs in the world.
Me: A short history
I was born in Toronto, in a downtown hospital. My parents,
recent immigrants from New Delhi, started in a low-rent
apartment in Scarborough while my dad requalified as an
electrical engineer and my mother worked as a bank teller.
One day, while finishing a shift at the bank and close to the
end of her pregnancy with me, my mom felt severe cramping.
She walked to the subway station, stopping every few minutes
to endure the contractions. Somehow, she rode the distance
on the subway, then walked through the busy station to
the stairs, knowing they led toward the hospital. She clutched
the railing and looked up, willing herself to get up the stairs.
Commuters crowded around her, running up and down the
steps. She looked upward at the daylight, her English escaping
her. A contraction, tears, soft muttering in Hindi. Two strangers
grabbed her arms, let her lean into them, and, as she sobbed
softly, helped her up the flight and escorted her to the hospital.
The strangers disappeared in the most Toronto way possible, not
exchanging names or phone numbers, just moving through their
evening. My father arrived, and I was born soon after. Baby girl
Neha, almost born in a downtown Toronto subway station.
Because of my father’s job at a robotics company, we moved
from Scarborough to Guelph when I was a toddler. For my
parents, the move from New Delhi to Toronto and then to
Guelph symbolized their search for what they had determined
defined their success: space. Guelph is hardly rural, but it
always had a small-town, earthy vibe. Wide open plots of land,
affordable family homes, a local university and shopping mall,
good schools – an accessible city. At the time, Guelph was a city
of just under a hundred thousand people. My parents added to
the population by growing our family with my two younger
brothers.
The suburban sprawl was limited, the makeup of the city
homogeneous, and the traffic and congestion minimal. Saturday
evening strolls took place in the Stone Road Mall, where my
dad would stop and shake hands with every other person. He
proudly showed us off: “Please meet our kids, our daughter
and our boys.” On many weekends we escaped to the Greater
Toronto Area: Brampton for an Indian wedding, Mississauga to
visit cousins and shop for Indian groceries, Rexdale for dinner
and a Bollywood movie at the iconic Albion Cinemas. We had
one foot firmly planted in Guelph and the other navigating our
urban East Indian identities.
My undergraduate years kept me close to home, at the University
of Waterloo and then back to the University of Guelph.
Along the way, I met my husband, an engineering student
with a passion for research and writing and a trajectory for
academia. My husband could trace his family roots to the Mayflower
and was from Hanover, Ontario, population 10,000. It
was safe to say we had little in common but somehow found
our way to each other. My first trip to visit his parents in the
Grey Bruce region was my first lengthy encounter with rural
Ontario. Dinners made with cream and butter, long drives
down country roads to visit family, no Starbucks to be seen for
miles. I was struck by how happy I felt. I knew I stuck out with
my dark skin, dark hair, dark eyes. But I was happy.
Law school was in North York, at Osgoode Hall. Not in
Toronto, but North York. I am reminded of this distinction,
often, by University of Toronto graduates. In my second year of
law school, I found an apartment at King and Bathurst streets,
between the entertainment district and what is now Liberty
Village. The commute to school was by streetcar, subway, and
bus – coffee in hand and books on my back.
In my third year of law school, after our great big Indian
wedding, my husband became my permanent roommate. He
was finishing his doctoral studies in engineering at the University
of Waterloo while I articled for criminal lawyers in the city.
Calmly, he would sit at his desk overlooking downtown Toronto
and write his dissertation while I hustled around the city
by different forms of transportation, setting dates in court,
copying and delivering documents, providing legal memos,
watching my principals in action. In the late evenings we would
use a Groupon to get pitas or shawarmas and go for walks, the
TTC rattling beneath us and beside us. We were strangers in a
big city, where we knew only each other.
Our first big move together was to Ottawa, to a rented townhouse
close to the university in Ottawa South. Postdoctoral
studies took my husband to Carleton University, while I had
finished articling and had landed a job in Ottawa. When we
moved to Ottawa, I wondered if this was how my parents felt
after their move from New Delhi to Toronto: from a major
world city, bursting at the seams, to a big city with organized
traffic patterns, reliable transit, and sensible working hours.
The transitions are always relative, the yardstick being where
you come from and where you are going.
After two years in Ottawa, it was time for the conversation.
I was pregnant with baby number two. My husband’s postdoctoral
funding was about to run out, and he needed a real job – a
career. The academic job market at the time was like a selective
lottery. Scarcity of options meant we could have ended up anywhere.
At the time, he was interviewing in New Hampshire,
Winnipeg, and Montreal. Every interview process was highly
competitive and meant a multi-day interview, dinners, and
performance evaluations based on special guest lectures. During
each interview, his publications were scrutinized, as was
his “fit” and long-term prognosis within the faculty. Was this a
professor the university could invest in for the long term? “We
want to offer you the job, but we are concerned about your wife. What
are her career plans?”
What about me, the wife? The trailing spouse. My criminal
law practice. My membership in the Ontario bar. My bilingualism
in English and Hindi. Mother of very young children.
Where did I fit? Would I be a thorn in the faculty’s side? Would
I interfere with my husband’s tenured commitment to the university?
Was I too ambitious to be a supporting actress in a film
where the university was the main character?
When the university in Montreal asked this question, I
traced my finger on a map and pointed to the first town over
the Quebec/Ontario border. “Cornwall!” I said out loud. “We
could live here,” I added, pointing to Montreal’s West Island.
“You could take the commuter train to downtown Montreal,
26 | SUMMER 2023 | THE ADVOCATES’ JOURNAL
THE ADVOCATES’ JOURNAL | SUMMER 2023 | 27

and I could travel to Cornwall in the opposite
direction.” We took a drive out to
the tree-lined streets of the mature suburban
neighbourhoods in the West Island.
Large plots of land, big backyards,
daycares and parks in walking distance,
a shopping mall.
I wondered if this is how my parents
felt when they moved to Guelph.
Cornwall
“Suivant, next” says the Tim Hortons
cashier in the Pauline Marois franglais
that has emerged across Montreal. I am
halfway through my commute to work,
and I need the coffee break after the
morning chaos of two small children.
Ahead of me is the open road – the highway.
I am the counter-commuter, driving
against the notoriously slow traffic that
characterizes Montreal.
“But isn’t Cornwall so far?” ask my
neighbours, with concern and curiosity.
Not really, I assure them, especially since
I am going against traffic. My spouse’s
commute is routine, as he joins the herds
of commuters on the AMT – the train
that connects the suburbs to the city of
Montreal. “It’s like the GO train,” I reassure
my parents, who are relieved by
the reference. My spouse spends 60 minutes
travelling each way, not including
his coffee stop for organic grind and daycare
drop-offs and pickups.
My commute, on the other hand,
makes no sense to well-meaning inquisitors.
“So you drive all that way? To …
Ontario?” “Well, it’s only fifty minutes,”
I rationalize. “I catch up on calls on my
Bluetooth. I like the time with my audiobooks
and my music. I map out my
cross-examinations.” My commute defies
common sense. Fifty minutes compared
to my husband’s one-hour-plus commute.
“All the way to Ontario! That is a
commitment!”
My family was no better. “Corn …
what?” And, “Where is that?” Sympathetic
stares and more questions about
the commute. Why wouldn’t I want the
thrill of a chic downtown Montreal practice?
A few barriers to joining the Quebec
bar stood in my way, notably a civil
system of law, administered primarily in
French.
I bite my tongue. The commute to
Cornwall was the easiest of the adjustments.
In those early days, I was my
mother standing at the bottom of the
subway stairs, looking up for daylight.
28 | SUMMER 2023 | THE ADVOCATES’ JOURNAL
Here is what no one told me about
small-town practice: The red carpet is
fairly short. What I had to let go of quickly
was my urban saviour complex. There
would be no Aladdin entrance with elephants
and trumpeters. Generally, there
is a welcoming vibe, with local practitioners
going out of their way to introduce
themselves. An announcement is
disseminated by the local law association
to the email listserv. That email contains
your name, email address, phone and fax
numbers, and practice areas. From there,
the introduction emails and phone calls
begin: invitations for coffee, lunch, and
tours around the courthouse and common
areas. This was a warm embrace.
It didn’t take me long to realize that
while I was embraced, I was still different.
The bar in Cornwall is predominantly
white, and the criminal defence bar was
all white and all male. My presence was
making waves. And a deeper issue: The
members of the bar in Cornwall had
long-standing practices in the region,
and most could trace their roots back to
the St. Lawrence River Valley. I was an
alien in every sense of the word.
Most Cornwall lawyers, unlike their
urban counterparts, work in small or
solo practices. A “large” firm in a small
city like Cornwall might be five to seven
lawyers plus staff – at most. Spouses,
siblings, daughters, and sons make up
a firm’s staff, associates, and partners.
New counsel are often the children coming
home after years away at school and
even practice in the big city. The overt
and purposeful choice to set up practice
in Cornwall, with no formal roots in the
community, was unique. The decision to
do this as a woman of colour could have
been seen as career subterfuge. I was on
autopilot, trying to change diapers, clean
bottles, adjust to my spouse’s new job,
and build a new practice.
I started Chugh Law in Cornwall in
a one-room office at the bottom of the
stairs of a small building occupied by
another sole practitioner and her puppy;
a husband-and-wife firm at the top of
the stairs; and a father-and-son team
of financial planners. Slowly and surely,
my practice grew. One client turned
into two, two into four, four into a fullblown
clientele. My early principals had
instilled in me the need to be present in
court and available for client meetings
and calls, and I quickly learned that this
presence was important to the community:
a local lawyer available and present for
local clients.
As my practice expanded around me,
I needed help. With not many connections
in town, I had few places to turn. I
grew my practice by hiring the daughter
of another practitioner as my first staff. I
started to notice other newcomers to the
Cornwall area. In 2015, I watched Yashar
Tahmassebipour deliver his sentencing
submissions with legal acumen. I chased
him out of the courtroom and asked him
who he was and where he was from:
“Hey, you! With the brown skin like me!
I have so many questions about you! Be
my friend!” A trailing spouse like me,
he had moved back to Montreal from
Toronto for family reasons. He came to
Cornwall with his common law degree,
looking for clients and work. Today he
is my law partner. I saw Robert Vitulano
in court, presenting his client’s case in a
family law motion. Yet another trailing
spouse, he had moved back to Quebec
following his husband’s career. His succinct
and intelligent submissions left me
with little choice but to hire him. Chandler
Thomas came to me via a referral from
Ottawa. My brother Shunker Chugh was
hired through nepotism.
In 2017, we bought a building and
moved our diverse group of misfits into
our own space: a space in which to be
free and to have joy and music; a space
in a community where we never really
belonged. We found our peace in our
top-floor kitchen, with the afternoon sun
streaming in through the skylights while,
over coffee, we regaled one another with
stories of our day. Tears and fears shared
over files in our boardroom. A sense of
togetherness and safety fostered by being
safe in our space.
Cornwall welcomed with open arms
our work as lawyers, but the homogeneity
of our local bar, the Crown attorneys’
office, the police services, and
other service providers weighed heavily
on us. The lawyers of Chugh Law check
the boxes of brown, gay, female, and
young. We are outsiders to Cornwall,
trying to forge our path. We feel our difference
everywhere we go, whether in
legal or casual spaces. We fight the impossible
cases and always connect with
the underdogs because their stories resonate
so deeply with our own. We proudly
challenge status quos, and we find
ourselves in the right place at the right
time in history. But we collapse with the
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exhaustion of bearing these systemic pressures.
I wonder if this is how my mom felt at the bottom of those
subway stairs: proud, scared, exhausted.
There is a richness to rural practice. I thought about this
one day, after an afternoon of sitting mid-trial with a Crown
attorney under a table in a satellite court in Alexandria, Ontario,
waiting for a tornado warning to pass. We were close to
farmland, and the electricity had gone out. I was desperately
searching for cell reception to call home to tell my spouse that
I might not make the daycare pickup.
But beyond anecdotes like this one, there is a palpable difference
to rural practice that must be noted. The population
of Cornwall has for decades held steady at just over 50,000.
The surrounding rural towns and villages that make up the
Stormont, Dundas, and Glengarry region have varying populations,
from the hundreds to ten thousand. Each small town
has its own communities and hamlets. These are subgroups
of small, well-meaning, and interconnected families that have
their own culture and practices. You may know a certain family
from Dundela, or a group of siblings from Dalkeith. There is
warmth and generosity of spirit within these networks.
Social problems hit rural communities differently since the
safety net spreads wider and thinner. Poverty, hunger, and addiction
do not have equality of access to the social programing
that urban centres provide. People from Cornwall remember
when the Domtar paper mill shut down in 2006, impacting
1800 jobs. Many draw this time as a line in the sand for when
social problems took root in the region. This period intersected
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with the dot-com boom and the rise of high-speed computing.
It remains unclear if this area was ready for the shift in economies.
But there are bigger issues. The region is on the St. Lawrence
River, adjacent to the United States border. Smuggling of humans,
drugs, guns, and other contraband is a going concern.
The region is big and dispersed, more than 100 kilometres
from end to end. The predominant linguistic heritages are English,
French, and Mohawk. The Akwesasne Reserve spans the
abutting lands to Cornwall, Quebec, and New York State, with
the shared river.
There is so much need in rural communities for professionals
to set up practice and to stay. So often, we find the community
receiving specialists on short-term contracts or leaving after
just a short stay. The residents of our rural communities are
generations in the making. The gaps in access to long-term
relationships with physicians, lawyers, accountants, and other
professionals exacerbate the social problems that have already
taken root.
The remote justice system implemented during the pandemic
bridged the rural/urban access to justice gap by making more
lawyers available to “be present” for Cornwall clients. During
this time, there were more retirements of Cornwall lawyers
than permanent replacements, with others working remotely
or taking positions out of town. As courts began to return to
in-person appearances, I understood the tremendous advantage of
clients who have lawyers available to meet them at the courthouse
or at an office in town. The depletion of available, present,
and local lawyers in rural communities can be added to the woes
of staff shortages that are being felt in almost every industry.
Today, when I walk down the street in Cornwall to get a
coffee, it is not without running into colleagues and acquaintances.
We stop, we chat, we commit to a future coffee. I am
my dad, proudly shaking hands with his friends in the Guelph
mall, proudly showing off my associates.
The Catzman
I won the Catzman Award for Professionalism and Civility in
2022. I was shocked. A nominator forwarded me the email with
the news and I sat in stunned silence, a few tears escaping.
I was nominated by angels, women uplifting women. Maybe
that is how my mom felt when she was carried up those subway
stairs.
With my best friend, Anne Marie McElroy from Ottawa, I
went to Toronto in October 2022 for the Opening of the Courts,
where I would receive the award. Our drive to Toronto was
laughter and music, with our favourite ’90s playlist providing
the soundtrack and our traditional stop at Harvey’s in Kingston.
It was Nuit Blanche weekend in Toronto so, as we pulled into
the city to get to our hotel, we were rerouted because of street
closures and throngs of pedestrians. We escaped the hotel on
Saturday night and excitedly skipped from Nathan Phillips
Square to the Old City Hall steps to see the performances. We
travelled down to King Street and back, and we ordered food
from a hole in the wall of the building our hotel was in. We
were soaking up the Big Smoke.
The day before and the day of the ceremony, we roamed
Queen Street while my speech percolated in my head. Why
did they pick me for this award? I was unlike past recipients:
Brown, rural, legal aid practice. There must have been a mistake.
Maybe no one else was nominated? What if the committee
finds out all the truths about me? That my kids often eat butter
pasta and hotdogs because, frankly, I don’t know how to make
anything else. That I have bad days as a lawyer and that I am
fundamentally flawed. In the days between finding out I had
received the award, the news being announced publicly, and
the day of the ceremony, I was quietly afraid that the awards
committee would change its mind. When the news came out
on social media and in newsletters, I was scared that someone
who didn’t like me would call The Advocates’ Society and fill
them in on the “real Neha.” My imposter syndrome ran circles
around my self-confidence.
“I’m so proud of you, buddy. Look at everything you have
done.” Anne-Marie smiled at me and said these words while
we waited at a red light at Queen and University. This intersection
still terrifies me. Run fast or risk standing in the middle
until the next light cycle. I looked at her with gratitude. “Run!”
I shouted when the light changed in our favour.
In that moment, I knew what I wanted to say to the audience
at the ceremony. I wanted to blurt out that I was an imposter,
but a deep breath and then a long conversation with Anne-
Marie reframed the speech into a talk about the actual culprit:
imposter syndrome. I wanted to assure other lawyers that they
are right where they are supposed to be. I wanted to tell them
that there will be no red carpet. I wanted to tell each one of
them that they are more than enough for the roles they are filling
and to fill the spaces they are in with everything they can
and want to give. If their life is taking them to rural Ontario
when they always envisioned a life in downtown Toronto, that
is the space they will fill and be just right for. There will be
days when they are at the bottom of the stairs, and there will
be days when they are carried to the top.
Before we left the city, we walked through Nathan Phillips
Square with our colleague Daniel Brown, current president of
the Criminal Lawyers’ Association. In the midst of our chatter,
he pointed at a tiny brown mouse scurrying through the
square among all the human traffic. “Isn’t that just so typical of
Toronto?” he mused. “A brave little mouse, making a run for it.”
In Aesop’s fable “The Town Mouse and The Country Mouse,”
the town mouse comes to visit the country mouse in the wideopen
spaces where the country mouse lives. They enjoy fresh
food and drink, while town mouse scoffs at the country mouse
and brags about the splendours of the city. The theatre! The
food choices! The apartment buildings! The country mouse
joins the town mouse on the return to the city, only to find that
the town mouse’s bragging points are illusory. The apartment
is overcrowded, and the mice are chased by a large cat when
they try to reach the tantalizing buffet. The town mouse and
the country mouse hide in a hole in the wall before they creep
back into the dining room, only to notice the food is gone. In
most of the adaptations of this fable, the town mouse makes
mockery of the life of the country mouse, while the country
mouse gives the town mouse’s life a chance in earnest before
retreating to rural life.
We found our way to the car, parked below City Hall, and
headed toward the road home. The lights and tall buildings
faded into long stretches of wide-open space and ONroute
plazas. Our conversation turned to more serious topics: our
fears, our families, our intentions. After dropping off Anne-
Marie and crossing the border into Quebec, I thought about
my parents. Did they know, back in the dense urban setting
of New Delhi, that a place called Guelph would be their final
destination? Can we predict the places where we’ll end up and
the communities that receive us?
Little brown mouse, I thought, it’s time to return home.
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30 | SUMMER 2023 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | SUMMER 2023 | 31

THE PRACTICE OF ADVOCACY
Our adversary system:
What advocates don’t ask
CHOOSE FROM CANADA’S TOP
MEDIATORS AND ARBITRATORS
Anna S.P. Wong
So committed is our profession to the stated premise, the
brick upon which our legal system is built, that not only do we
not attack it but we also seldom ask: Is the adversary approach
really the ultimate factfinder? How does it compare with the
inquisitorial approach favoured by civil law nations?
This article seeks answers to these questions. Before we get
there, a quick definition and a short history lesson are in order.
If lawyers had a book of common wisdom, of truisms and
dictums we live by, then one of the first entries in the book
must be that adjudication is adversary. Credit the courts for
spreading the word. 1 Litigators, against our trained habit to
follow the evidence, accept without insisting on proof that our
mode of trial is best calculated to discover the truth. Through
confrontation between parties and the buildup of tension between
witness and lawyer, witness and witness, and lawyer
and lawyer, the full facts behind a dispute are forced into the
open, allowing the court to reach the most informed decision. To
quote Justice Moldaver: “[F]orceful partisan advocacy facilitates
truth-seeking.” 2
32 | SUMMER 2023 | THE ADVOCATES’ JOURNAL
Adversary system defined
The term “adversary” is a bit of a misnomer to describe our
adjudicative method in that it is not characterized by hostility,
as ordinary usage would suggest. Technically speaking, a
system labelled “adversary” exhibits three essential features:
(1) party control; (2) judicial passivity; and (3) formal rules to
regulate the proceeding. 3 The first two elements, in particular,
tend to be spotlighted in the jurisprudence. The parties, assisted
by their lawyers, do all the heavy lifting when it comes
to fact investigation and case presentation, while the judges
remain “relatively passive” 4 until it is time to decide who wins
on what issue. The process is bound by a thicket of technical
and evidentiary rules, only some of which are geared toward
giving the court a complete picture of the truth. 5
The inquisitorial system, typically positioned as a rival to
ours, 6 has the division of labour reversed. Judges there run
the show; they are in charge of framing the issues, assembling
the facts, and questioning the witnesses, while the parties,
and their lawyers, play the supporting cast. Judges, committed
to truth seeking, are free to admit evidence that would be
excluded here. Compared with the adversary system, it is not
rules-heavy.
Black’s Law Dictionary (11th ed.) makes the adversaryinquisitorial
distinction starkly:
inquisitorial system (18th c) A system of proof-taking
used in civil law, whereby the judge conducts the
trial, determines what questions to ask, and defines the
scope and the extent of the inquiry.
adversary system (1936) A procedural system, such
as the Anglo-American legal system, involving active
and unhindered parties contesting with each other to put
forth a case before an independent decision-maker.
Though no existing legal order is purely one or the other, 7
and the adversary-inquisitorial polarity has been criticized, 8
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the fact remains that there are “two distinct procedural traditions”
whose differences “should not be under-estimated.” 9
A bit of history
To litigators today and of the last few generations, adversary
trials are all we ever knew. It might come as a surprise, then,
to learn that our justice system does not have a long-standing
tradition of being adversary. In fact, for most of England’s legal
history, from which we borrowed, justice was administered
inquisitorially by very active and probing judges. 10
Trials in England in the Tudor and Stuart periods (1485–1714)
did not allow parties to decide what information to serve up
to the trier of fact. Trials in those days were judge-directed inquests,
more akin to what one might find in a modern-day German
or French courtroom than in one of our own. Judges bore
the responsibility of investigating the facts and, along with the
jurors, were the ones firing questions at the accused and witnesses.
11 Lawyers had a much more limited role and, in many
criminal cases, no role to play. In felony matters (e.g., theft,
murder, rape, arson), they were prohibited from acting for the
accused, leaving the latter no choice but to mount their own
defence. 12 While lawyers appeared more frequently in civil
matters, their contributions were primarily related to technical
pleading, and, so, they were known as “pleaders.” 13 No court
counted on them entirely to collect and present the evidence.
At the Court of Chancery, for example, officials appointed by
the court examined witnesses in the parties’ absence on the
interrogatories the latter prepared. 14
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Only in the 18th century and into the 19th did trials transform
into adversary affairs exhibiting the three features described
above. According to legal historian John H. Langbein,
“[t]he adversary model came from the civil side, where the
parties routinely engaged counsel to shape the course of litigation
to partisan advantage.” 15 Counsel participation expanded,
judicial inquiry shifted to party control, and rules regulating
the contest multiplied over time. On the criminal side, we have
thief-takers to thank for helping to spur the evolution. 16 With
their eye on the bounty paid by the government on conviction,
these hired guns, who apprehended criminals and acted
as both witness and advocate at trial, were disposed to give
false reports and use various manoeuvres to steer the jury to a
guilty verdict. After a string of reward scandals and wrongful
executions, procedural protections were put in place, allowing
defendants to hire counsel to cross-examine the thief-taker so
as to probe their credibility and expose fabrications. In parallel,
juror interrogation of witnesses was increasingly circumscribed.
17 Judges came to recognize that parties had a right to
execute their own trial strategy, including in the selection and
examination of their own witnesses. 18
Alongside the counsel’s expanding role came another trend:
Trials became adversary in the popular sense of the word.
Advocacy shifted from promoting the interests of truth
to selling the winning version of it. 19 With the new focus,
lawyers “pushed harder,” became “more aggressive, more
actively committed to their clients’ interests, and more challenging
of the rules under which they were allowed to work.” 20
The principle of no-holds-barred advocacy
found its most famous champion
in Lord Brougham whose credo, which
he told the House of Lords in 1820, boiled
down to this: The client is all that matters.
Nineteenth-century advocates, with few
ethical restraints on their behaviour, 21
could be sharp-tongued, hawkish, even
wily. Consider the following reaction of
a barrister after he was alleged by his
friend to have misled the court:
The accused party, instead of taking
fire at this attack on his professional
character, folded his arms,
and, with the most perfect
composure, gravity and
archness, answered, “Certainly!
What am I, or any
of us here for, but to mislead
the court if we can!” 22
In summary, the adversary
approach to trying cases is a
fairly recent innovation – and
an accidental one at that. As
was observed, “It was neither
part of a grand governmental
design nor the scheme of an ingenious
legal philosopher.” 23 A system that was
not built by design could still function
splendidly, of course, so let us consider
how well it works – and get to the questions
posed at the outset.
Adversary vs inquisitorial:
Which is better at truth-seeking?
Courts up and down the ladder have
told us, without a lick of doubt, that “the
Canadian justice system promotes the
search for truth by allowing the parties
to put their best cases before the court,
thereby enabling the court to reach a decision
with the best information possible.” 24
How effective, really, is a system that relies
on collision between opposing narratives
to hammer out the truth? Is there evidence
to endorse the sensibility of holding adversary
trials over judicial inquisitions?
Which system works better is something
that has riveted a small number
of social scientists, though they’d be the
first to tell you that it is impossible to
prove empirically and definitively that
one trumps the other at truth-finding.
After all, we can’t verify what actually
happened in every court case to assess
it against what the judge found. The empirical
research that exists has instead
involved laboratory simulations with university
students. In their groundbreaking
experiment, Lind, Thibaut, and Walker –
two social psychologists and a law professor
– had students, assigned to the role
of either a client-centred (adversarial)
advocate or a court-centred (inquisitorial)
lawyer, gather facts and then relay them
to the decision-maker. 25 The two groups,
the researchers found, were similarly
diligent in the search for facts, 26 but they
told quite a different story to the decision-maker
afterward. The advocates
relayed few “bad” facts – facts unfavourable
to their client – whereas the inquisitorial
lawyers provided a more balanced
How effective, really, is a system that relies
on collision between opposing narratives to
hammer out the truth? Is there evidence to
endorse the sensibility of holding adversary
trials over judicial inquisitions?
view of the evidence. What’s more, the
advocates tended to interpret ambiguous
evidence as supportive of the position they
were pitching. 27 Partisan engagement, it
seems, colours the presentation of evidence,
which could well leave the decision-maker
with two distorted or otherwise
incomplete sets of facts. It stands to
reason that two distorted accounts do not
make an unbiased whole.
Another of Thibaut, Walker, and Lind’s
experiments suggests that an adversary
format produces fairer, more accurate
decisions. 28 In that study, biased subjects
– that is, those who came into a case with
a preconceived notion of how they might
decide – tended to decide that way when
evidence was presented in a non-adversary
as opposed to adversary manner.
Curiously, the style of presentation had
no influence on unbiased decision-makers.
It was not apparent why this was the
case, and the researchers could only
speculate. This research, pioneering
as it is, has not gone without criticism.
Critics have flagged two methodological
difficulties which cast doubts on the
findings. First, the simulations used do
not adequately correspond to reality. 29 A
central feature of inquisitorial adjudication
– an active judge with broad investigatory
powers – was entirely discounted
as, under both models, the decisionmaker
was restricted to being a passive
listener. Second, using students to test judicial
behaviour is problematic because
students lack the training, expertise, and
necessary motivations of working judges.
It is quite possible that judges in actual
trials would not behave as 20-somethings
do in mock settings.
The sum total of Lind, Thibaut, and
Walker’s research endorses the inquisitorial
method as the better truth-finder.
In their own words, a “system delegating
both process and decision control to a
disinterested third party is most likely to
produce truth.” 30 Nonetheless,
they concluded that the
adversary system is “clearly
superior,” 31 because participants
believed it is fairer. 32
This finding about fairness
perception is suspect, however,
given that the “inquisitorial”
model in the study
afforded parties no voice in
the process; of course, no
one would prefer it. According
to later research, the vast
majority of people prefer a procedure
that permits them to present evidence
and arguments while also allowing judicial
questioning 33 – that is, a process that
comes closer to modem inquisitorial procedure
34 – and rank it fairer than a purely
adversary one.
Economists have also attempted to
thrash out the comparative merits of the
two systems. 35 According to economist
Gordon Tullock, the adversary process is
both less accurate and more expensive. 36
His theory goes like this: Suppose there
is a Mr. Right and a Mr. Wrong in every
case. In an adversary setting, Mr. Wrong
has no motive to ensure that an accurate
decision is rendered, but he would have
strong motives to hire lawyers to stave
off judgment day or, even better, defeat
Mr. Right. As it were, “a great deal of the
resources are put in by someone [i.e., Mr.
Wrong] who is attempting to mislead” –
resources that would not have to be spent
to achieve accuracy under an inquisitorial
arrangement. 37 Tullock’s theory has
been borne out in experiments when
Mr. Wrong had the full facts incriminating
him but Mr. Right did not. 38 When
both sides have the same information,
such that Mr. Wrong could not bluff,
the adversary system is able to achieve
the correct result more efficiently.
Richard Posner, a defender of the adversary
system, offers a very different
34 | SUMMER 2023 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | SUMMER 2023 | 35

perspective. 39 The inquisitorial model, he claims, relies too
heavily on public sector judges who are not sufficiently motivated
to turn over every pebble, lift every boulder, to get at the
truth in every case since their economic self-interest is only
indirectly tied to the outcome of each case. Contrast this approach
with adversarial litigation. Litigants and their lawyers,
who profit from winning, have every reason to look hard and
dig deep for favourable evidence and to expose errors and inconsistencies
in their opponent’s position. A system that leverages
competition optimizes fact-finding.
Posner’s theory, attractive as it may be at first blush, suffers
from some difficulties. Granted, in an adversary system
each side is highly motivated to search for facts that advance
their interest. But what about relevant evidence that neither
party thinks is helpful to them? Would that be revealed to
the judge? Unlikely, which can pose a hazard to decisional
accuracy. Moreover, the incentives for parties to be diligent
in their search for evidence can also nudge them to suppress
or bend the truth to one’s advantage. When otherwise disinterested
witnesses are prepared for trial by one side or the
other, as is expected under the adversary system, they risk
having their memory tainted, becoming partisans themselves.
Jerome Frank explains: “They come to regard themselves, not
as aids in an investigation bent on discovering the truth, not as
aids to the court, but as the ‘plaintiff’s witnesses’ or the
‘defendant’s witnesses.’ They become soldiers in a war, cease
to be neutrals.” 40
Taken together, the inquisitorial method seems to edge out
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Certified by The Law Society of Upper Canada
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the adversary method for accuracy in fact-finding, at least in
theory and in the laboratory. But even if the adversary system
lends the right mix of incentives, there’s still a practical
problem. For the adversary system to work as its proponents
claim, disputants must have lawyers matched in competence
representing them and equal resources to devote to the cause.
This kind of symmetry is more illusory than real. In reality, the
playing field is far from level in all cases. Instead, wealth often
dictates who has the savvier lawyer, who is able to wear down
their opponent and obstruct the truth-finding process such that
“justice often appears to be for sale to the highest bidder.” 41
The failure of the adversary process when the fight is not
even was laid bare in Girao v Cunningham. 42 The self-represented
plaintiff, speaking through an interpreter, was a sitting target
for the coterie of defence lawyers she was up against. The
defence knew how to stretch the rules of gamesmanship, to
put the adverse into adversary. Among other things, they filed
a “joint trial brief” selectively redacted to suit their client’s
interest, blocked the plaintiff from filing her expert’s report
and calling the expert, and put her through a mocking
cross-examination. The effect of all this, which unfolded before
a noninterventionist judge who was content to let the lawyers
be, was to leave the jury with a one-sided story. It is probably
obvious which side prevailed at trial; less obvious is whether
the truth did.
What now?
Perhaps the best evidence there is that the adversary model
doesn’t live up to the hype lies in our move away from it. Over
the years, various “inquisitorial” mechanisms have been imported
into our system to dilute its adversariness. Among these
mechanisms in the civil context are judicial case management
and mandatory mediation. The former wrests control from the
parties; the latter takes a case out of the court’s hands to respectively
narrow and settle claims. The Rules of Civil Procedure
also empower judges to take the reins by ordering case conferences,
staying motions, even appointing independent experts
“on his or her own initiative.” 43 Then there is disclosure and
discovery, standard steps in criminal and civil litigation today
which were foreign to adversary adjudication in its earlier
history. 44 Dissatisfaction with the adversary model has been
simmering to a boil in family law, where self-representation
has been epidemic. Judges in family cases have acknowledged
that adversarial litigation is unhelpful, if not harmful, and they
willingly give away business, encouraging parties to take their
disputes outside the courts for resolution. 45 Ethical guidelines
for judges, updated in 2021, now recommend against “passive
neutrality” in all cases. 46
The “adversary” description has an increasingly fragile correspondence
with reality, considering the evolution of our system.
To be sure, trial judges are still cautioned to not “enter the
fray” 47 or “descend into the arena,” 48 which is to say, play too
active a role. But trial management powers have been construed
increasingly elastically, widening the scope for judicial intervention.
Judges can curtail cross-examination, 49 put questions
to witnesses, and raise concerns about the case with the parties
50 in order to keep a trial focused and on course. Still, the
dividing line between proper and improper intervention is a
shifting frontier. Where it sits, or should sit, is something over
which respected jurists disagree, as split appellate decisions
Notes
1. A search on Quicklaw for decisions with references to “adversary
system” or “adversarial system” yielded more than 3,300 hits.
2. Groia v Law Society of Upper Canada, 2018 SCC 27 at para 72.
3. Phillips v Ford Motor Co of Canada Ltd (1971), 18 DLR (3d) 641 (Ont
CA) at 661; David Luban, Lawyers and Justice: An Ethical Study
(Princeton: Princeton University Press, 1988) at 56–57; Stephan
Landsman, “Rise of the Contentious Spirit: Adversary Procedure
in Eighteenth Century England “ (1989–1990) 75:3 Cornell L Rev 496
at 500.
4. Landsman, ibid; JA Jolowicz, “Adversarial and Inquisitorial
Models of Civil Procedure” (2003) 52:2 Int’l and Comparative L
Q 281.
5. An example of a non-truth-oriented rule is settlement
privilege, “a rule of evidence that protects the confidentiality
of communications and information exchanged for the purpose
of settling a dispute”: Association de médiation familiale du
Québec v Bouvier, 2021 SCC 54 at para 95.
6. Brar v Canada (Public Safety and Emergency Preparedness), [2020] 4
FCR 419.
7. JA Jolowicz, “Adversarial and Inquisitorial Models of Civil
Procedure” (2003) 52:2 Int’l and Comparative L Q 281 at 281;
John R Spencer, “Adversarial vs Inquisitorial Systems: Is There
Still Such a Difference?” (2016) 20:5 Int’l J of Human Rights 601.
8. See, e.g., Máximo Langer, “The Long Shadow of the Adversarial
and Inquisitorial Categories” in Markus D Dubber and Tatjana
Hörnle, Oxford Handbook of Criminal Law (Oxford: Oxford University
Press, 2015).
make apparent. 51
Projecting ahead, it is likely that our
system of justice will continue to inch
slowly in the inquisitorial direction, settling
on what might be called a mixed
procedure. At the Opening of the Courts
last fall, Chief Justice Morawetz announced
that major change to civil proceedings
is on the horizon: “This is an
opportunity to rewrite the rules.” 52 While
full details of what is in store have yet to
be unveiled, no one, not for a hot minute,
would believe that full abandonment
of adversary practices would be entertained.
Nor would that necessarily be a
good idea, as adversary and inquisitorial
schemes each have their strengths and
weaknesses. But with backlogs and delays
approaching paralyzing levels, and
pro se representation on the rise, 53 there is
every reason for us to look elsewhere for
inspiration. International tribunals and
some other legal systems have been converging
on “adversarial inquisitions” 54 or
blended models that try to bring together
the best of both worlds. 55 In our case, if the
status quo of party domination is not producing
the outcomes we want as a society,
9. John D Jackson, “Responses to Salduz: Procedural Tradition,
Change and the Need for Effective Defence” (2016) 79:6 Modern
L Rev 987 at 989.
10. JM Beattie, Crime and the Courts in England, 1660–1800 (Oxford:
Oxford University Press, 1986) at 345.
11. See, generally, James S Cockburn, A History of the English Assizes,
1558–1714 (Cambridge: Cambridge University Press, 1972), ch 6;
John H Langbein, The Origins of Adversary Criminal Trial (Oxford:
Oxford University Press, 2003); Thomas A Green, Verdict
According to Conscience: Perspectives on the English Criminal Trial
Jury, 1200–1800 (Chicago: University of Chicago Press, 1985);
Philip Girard, Jim Phillips, & R Blake Brown, A History of Law in
Canada, Volume One (Toronto: University of Toronto Press, 2018)
at 293–94; Beattie, ibid, ch 7.
12. Beattie, ibid, at 352–56; TP Gallanis, “The Mystery of Old Bailey
Counsel” (2006) 65:1 Cambridge L J 159 at 159–60.
13. Wilfrid Prest, ed, Lawyers in Early Modern Europe and America
(New York: Holmes & Meier, 1981) at 67–69.
14. John H Baker, The Oxford History of the Laws of England (Oxford:
Oxford University Press, 2003) at 185; Amalia D Kessler, “Our
Inquisitorial Tradition: Equity Procedure, Due Process, and the
Search for an Alternative to the Adversarial” (2005) 90:5 Cornell
L Rev 1181 at 1207.
15. Langbein, supra note 11 at 8.
16. Landsman, supra note 3 at 572–81; Langbein, supra note 11 at
148–58.
common wisdom would suggest that we
explore expanding judicial controls
and having judges play a more robust,
inquiring part right from the very start.
They can oversee the framing of issues
early on, direct experts to be engaged
where the case demands it, and vet the
parties’ proposed witnesses for relevance,
to better ensure that the truth about the
essential matters is not lost to diversions.
All possibilities should be considered,
even those that would, against our own
interest, demote the advocate to a less
critical role.
36 | SUMMER 2023 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | SUMMER 2023 | 37

17. Langbein, supra note 11 at 320. See also Niamh Howlin, “Passive
32. Thibaut and Walker, ibid. See also Paulina Houlden et al,
41. Kessler, supra note 14 at 1251.
50. R v Teed, [2020] AJ No 992 (CA) at para 18; R v Hunter, [2001]
Observers or Active Participants? Jurors in Civil and Criminal
“Preference for Modes of Dispute Resolution as a Function of
42. 2017 ONSC 2452, rev’d 2020 ONCA 260.
BCJ No 2003 (Prov Ct) at paras 27–34; See also Chippewas of
Trials” (2014) 35:2 Journal of Legal History 143 at 143–47.
Process and Decision Control” (1978) 14 Journal of Experimental
43. RRO 1990, Reg 194, r 2.1.02(1), 50.13(1), and 52.03(1), respectively.
Mnjikaning First Nation v Ontario, 2010 ONCA 47 at paras 233–34.
18. JH Baker, An Introduction to English Legal History, 4th ed (Oxford:
Social Psychology 13.
44. R v Stinchcombe, [1991] 3 SCR 326 at 332.
51. See, e.g., Samaniego, supra note 49.
Oxford University Press, 2002) at 85; Landsman, supra note 3 at
33. Blair H Sheppard, “Justice Is No Simple Matter: Case for
45. Colucci v Colucci, 2021 SCC 24 at para 69. See also Nicholas
52. Geoffrey B Morawetz, “Opening of Courts Remarks” (3 October
531.
Elaborating Our Model of Procedural Fairness” (1985)
Bala, “Reforming Family Dispute Resolution in Ontario:
2022); online: .
of Metavalues in Trial Advocacy Advice Texts (Oxford: Oxford
summarized in Mark R Fondacaro, Christopher Slobogin, &
Anthony Duggan, & Lorne Sossin, eds, Middle Income Access to
53. Jennifer Lynch and Margot Mary Davis, “What Can Be Done
University Press, 2016), ch 3.
Tricia Cross, “Reconceptualizing Due Process in Juvenile Justice:
Justice (Toronto: University of Toronto Press, 2012) 271 at 286–87.
About Upward Trend of Self-Represented Litigants” The Lawyers
20. JM Beattie, “Scales of Justice: Defense Counsel and the English
Contributions from Law and Social Science” (2005) 57:5 Hastings
46. Canadian Judicial Council, “Ethical Principles for Judges”;
Daily (18 May 2021), online: .
21. David JA Cairns, Advocacy and the Making of the Adversarial
87:3 S Cal L Rev 699 at 711.
47. R v Switzer, 2014 ABCA 129 at para 7; R v Oracz, 2011 ABCA 341.
54. The term is from Keith A Findley, “Adversarial Inquisitions:
Criminal Trial 1800 –1865 (Oxford: Oxford University Press, 1999)
35. See, e.g., Alice Guerra et al, “Deterrence, Settlement, and
48. Children’s Aid Society of the Regional Municipality of Waterloo v RC,
Rethinking the Search for the Truth” (2011) 56:3 NY L Sch L
at 87.
Litigation Under Adversarial versus Inquisitorial Systems”
[2008] OJ No. 4301 (SCJ) at para 14. Note that “[u]nlike trial courts,
Rev 911.
22. “Lawyer-Reform, or Observations on the Prevailing Moral,
(2022) Public Choice; Shruti Rajagopalan, “Adversarial versus
where judges typically do not descend into the arena, appellate
55. Spencer, supra note 7; Felicity Nagorcka, Michael Stanton, &
Standing of Legal Practice, and Hints for a Revision of it by the
Inquisitorial Systems: Error and Valuation” (2017) Journal of
court judges are expected to enter the fray and challenge
Michael Wilson, “Stranded Between Partisanship and the Truth?
Profession” (1831) 1:3 Edinburgh LJ 225 at 225.
Business Valuation and Economic Loss Analysis 1; Luke M Froeb
counsel and … to play an active role in the appeal hearing”
A Comparative Analysis of Legal Ethics in the Adversarial and
23. Landsman, supra note 3 at 502.
and Bruce H Kobayashi, “Evidence Production in Adversarial vs.
(R v Van Wissen, 2018 MBCA 100 at para 16).
Inquisitorial Systems of Justice” (2005) 29:2 Melb U L Rev 448;
24. Lizotte v Aviva Insurance Company of Canada, [2016] 2 SCR 521 at
Inquisitorial Regimes” (2001) 70 Economics Letters 267; Richard
49. R v Samaniego, 2022 SCC 9.
Anogika Souresh, “The Adversarial vs Inquisitorial Dichotomy
para 65. See also R v Joanisse (1995), 102 CCC (3d) 35 (Ont CA) at
A Posner, Economic Analysis of Law, 9th ed (New York: Wolters
in International Criminal Law: A Redundant Conversation”
para 64; R v Osborne, 2019 ONSC 399 at para 18.
Kluwer, 2014); Richard A Posner, “An Economic Approach to the
(2019) 5:1 ICJ 81.
25. E Allan Lind, John Thibaut, & Laurens Walker, “Discovery
Law of Evidence” (1999) 51:6 Stanford L Rev 1477; Gordon Tullock,
and Presentation of Evidence in Adversary and Nonadversary
“Optimal Procedure” in Charles K Rowley, ed, The Selected Works
Proceedings” (1973) 71:6 Mich L Rev 1129. These findings have
of Gordon Tullock, Vol. 9 (Indianapolis: Liberty Fund, 2004) at
been replicated: Blair H Sheppard and Neil Vidmar, “Adversary
274–90; Mathias Dewatripont & Jean Tirole, “Advocates”
Pretrial Procedures and Testimonial Evidence: Effects of
(1999) 107:1 Journal of Political Economy 1; Hyun Song Shin,
Lawyer’s Role and Machiavellianism” (1980) 39:2 Journal of
“Adversarial and Inquisitorial Procedures in Arbitration” (1998)
Personality and Social Psychology 320.
29:2 RAND Journal of Economics 378.
26. With the exception that advocates looked harder when they were
36. Gordon Tullock. Trials on Trial (New York: Columbia University
initially confronted with a set of facts damaging to their client.
See Lind, Thibaut, & Walker, ibid at 1143.
27. Barbara O’Brien, “Recipe for Bias: An Empirical Look at the
Interplay between Institutional Incentives and Bounded
Rationality in Prosecutorial Decision Making” (2009) 74:4
Missouri L Rev 999.
28. John Thibaut, Laurens Walker, & E Allan Lind, “Adversary
Presentation and Bias in Legal Decisionmaking” (1972) 86:2 Harv
L Rev 386.
29. Mirjan Damaška, “Presentation of Evidence and Factfinding
Precision “ (1975) 123:5 U Pa L Rev 1083 at 1099.
30. John Thibaut and Laurens Walker, “A Theory of Procedure”
(1978) 66:3 Calif L Rev 541 at 547.
31. John Thibaut and Laurens Walker, Procedural Justice: A
Psychological Analysis (Hillsdale, NJ: Erlbaum, 1975) at 118.
Press, 1980). That litigation spending is higher in the adversarial
system has been confirmed and rationalized by others: Alice
Guerra et al, ibid; Francesco Parisi, “Rent-Seeking Through
Litigation: Adversarial and Inquisitorial Systems Compared”
(2002) 22 Int’l Rev L & Econ 193 at 208.
37. Tullock, ibid at 96.
38. Justin Sevier, “The Truth-Justice Tradeoff: Perceptions of
Decisional Accuracy and Procedural Justice in Adversarial and
Inquisitorial Legal Systems” (2014) 20:2 Psychology, Public
Policy, and Law, 212.
39. Richard A Posner, “Comment: Responding to Gordon Tullock”
in Stuart S Nagel, ed, Research in Law and Policy Studies, Vol. 2
(Greenwich, CT: JAI Press, 1988) at 29–33; Posner, supra note 35.
40. Jerome Frank, Courts on Trial: Myth and Reality in American Justice
(Princeton: Princeton University Press, 1949) at 86.
#TASPROUD
Congratulations to the TAS leaders appointed to the bench in 2022/23 to serve the justice
system after going above and beyond to serve our members and the work of TAS.
The Hon. Justice Andres C. Garin, former Vice-Chair of the Quebec Regional Advisory
Committee, appointed as a Judge to the Quebec Superior Court.
The Hon. Justice Peter J. Osborne, former TAS Director, appointed to the Superior Court of
Justice of Ontario.
The Hon. Justice Joan M. Barrett, former TAS Director, appointed to the Superior Court of
Justice of Ontario.
The Hon. Justice Faisal Mirza, former TAS Director, appointed to the Superior Court of
Justice of Ontario.
The Hon. Justice Martha A. Cook, former TAS Director, appointed to the Superior Court of
Justice of Ontario.
38 | SUMMER 2023 | THE ADVOCATES’ JOURNAL
THE ADVOCATES’ JOURNAL | SUMMER 2023 | 39

THE ART OF ADVOCACY
Classics from the vault:
Some observations
on the art of advocacy
Les classiques du coffre-fort :
Quelques observations
sur l’art du plaidoyer
Joanie Lapalme and/et Michael Shortt
Foreword
Lord Macmillan was one of the leading advocates and judges
of his day, representing Canada before the Judicial Committee
of the Privy Council and having the rare honour of being
appointed directly to the House of Lords from private practice.
In 1935, he gave a speech to the Birmingham Law Students
Society that drew upon his vast experience as both a litigator
and an adjudicator. That speech now returns to print as part of
the Classics from the Vault series, in recognition of its breadth
and depth of insight into the art of advocacy, which Lord
Macmillan defined as the art of “presenting a case to a tribunal
[so] as to secure if possible a desired decision.”
In his speech, Lord Macmillan gave wide-ranging advice
about attaining that end. Some of his advice was ground-breaking;
indeed, the speech contains one of the earliest known references
to preparing a compendium (or condensed book) of
documents to support oral argument. Much of his advice
remains timeless, particularly his comments on judicial
psychology. And inevitably, at least some of his advice was
time-bound and context-specific, like his recommendation that
lawyers sprinkle literary and classical references throughout
their oral argument.
This article represents a slight abridgement of the original
text, in order to highlight the advice that remains relevant today.
Additionally, Lord Macmillan’s speech will be appearing
in French for the first time, thereby allowing it to reach a wider
Canadian audience than it did in the 1930s.
~ J.L. and M.S.
Avant-propos
Comptant parmi les avocats et juges phares de son époque,
lord Macmillan a représenté le Canada devant le Conseil privé
et a eu le rare honneur d’être nommé à la Chambre des lords
directement de la pratique privée. En 1935, devant la Birmingham
Law Students’ Society, il a prononcé une allocution s’inspirant
de sa vaste expérience en tant que plaideur et juge.
Dans le cadre de la série Les classiques du coffre-fort, ce discours
est réimprimé en reconnaissance de son étendue et de sa profondeur
à l’égard de l’art du plaidoyer – que lord Macmillan a
défini comme étant l’art de « présenter une cause à un tribunal
afin que soit rendue, si possible, la décision souhaitée ».
Dans son allocution, lord Macmillan a donné de nombreux conseils
pour atteindre cet objectif. Certains de ses conseils étaient
révolutionnaires : le discours contient en fait l’une des premières
références connues à la préparation d’un compendium (ou recueil
condensé) regroupant les documents clés afin d’appuyer la plaidoirie
orale. Une grande partie de ses conseils sont intemporels,
notamment ceux portant sur la psychologie judiciaire. Et inévitablement,
certains conseils sont ancrés dans leur époque, comme
lorsque lord Macmillan recommande aux avocats de parsemer
leur plaidoirie de références littéraires et classiques.
Cet article présente une version abrégée du texte original
afin de mettre en lumière les conseils qui demeurent pertinents
aujourd’hui. De plus, ce discours de lord Macmillan va
être présenté en français pour la toute première fois, ce qui lui
permettra d’atteindre un public canadien plus vaste qu’il ne l’a
fait dans les années 1930.
~ J.L. et M.S.
If I were to select the rule which in my estimation above all
others should govern the presentation of an argument in
Court, it is this – always keep steadily in mind that what the
Judge is seeking is material for the judgment or opinion which
all through the case he knows he will inevitably have to frame
and deliver at the end. He is not really interested in the advocate’s
pyrotechnic displays; he is searching all the time for the
determining facts and the principles of law which he will ultimately
embody in his decision.
I remember a friend of mine on the Bench once discussing
with me the advocacy of a certain counsel. He came into Court
briskly, spoke well and vigorously and at reasonable length,
and indeed exhibited all the outward evidences of what is
known as “a good appearance.” He left the Court receiving
the congratulations of his junior and the thanks of his client.
All seemed well. “But,” said the Judge, “when I came to write
my judgment in my study at home that night I found I had
a blank note book. The speech apparently so successful had
contributed just nothing to assist me in my task. On analysis
I found it to consist chiefly of robust commonplaces and confident
assertions.” On the other hand how often a halting address,
delivered with every fault of manner and diction but
manifestly the result of careful thought and thorough research,
will command the respect of the Bench and provide the Judge
with the very material he wants. Counsel’s task is to help the
Si je choisissais la règle qui, à mon avis, devrait régir la
présentation d’un argument devant la Cour, ce serait celleci
: gardez toujours à l’esprit que ce que le juge recherche
est primordial pour le jugement ou l’opinion que, tout au
long de l’affaire, ce dernier sait qu’il devra rendre et présenter,
inévitablement, à la fin du processus. Il n’est pas vraiment
intéressé par les démonstrations pyrotechniques de l’avocat; ce
qu’il recherche impérativement, ce sont les faits déterminants et
les principes de droit qui seront, en définitive, le fondement de
sa décision.
Je me souviens de la discussion que j’ai eue avec l’un de mes
amis, qui est juge, au sujet de la plaidoirie d’un certain avocat.
Il s’est présenté devant la Cour d’un bon pas, s’est exprimé
avec aisance et vigueur lors de son exposé d’une longueur
raisonnable, et arborait tous les signes extérieurs de ce que
l’on considère comme une « belle apparence ». Il a reçu les
félicitations de son apprenti et les remerciements de son client
à sa sortie de la Cour. Tout paraissait aller pour le mieux.
« Cependant », a dit le juge, « lorsque j’ai voulu écrire mon
jugement, attablé dans mon étude à la maison, ce soirlà,
je me suis rendu compte que je me trouvais devant un
cahier de notes blanc. Le discours apparemment si réussi
n’avait absolument rien apporté qui aurait pu m’aider à
m’acquitter de ma tâche. Après analyse, j’ai constaté qu’il se
composait principalement de lieux communs présentés de
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THE ADVOCATES’ JOURNAL | SUMMER 2023 | 41

Court – to help the Court to reach a decision
in his client’s favour. I used always
to have before me the vision of the
Judge sitting down at his desk to write
his judgment after all the stir and excitement
of the debate was over. Extreme
propositions confidently advanced at the
Bar do not help him then. He wants the
clear phrase; the moderately-stated principle,
the dispassionate array of facts
which may appropriately find a place in
his judicial finding. It is a good exercise
to think out how, if you were the Judge
and not the advocate of your client’s
cause, you would yourself frame a judgment
in your client’s favour. Then model
your speech on these lines. You will be
surprised to find how often the grateful
Judge, when he comes to give judgment,
will adopt the very words of an argument
so presented. You have furnished
him with the materials of judgment; he
façon convaincante et d’assertions péremptoires.
» Or, à quelle fréquence un
discours hésitant, prononcé en commettant
toutes les fautes de style et de diction
possibles, mais étant manifestement le
résultat d’une mûre réflexion et d’une
recherche approfondie, va-t-il commander
le respect de la magistrature et fournir
au juge le matériel qu’il veut? La tâche
de l’avocat est d’aider la Cour – de l’aider
à prendre une décision en sa faveur, et
en faveur du client. J’ai toujours eu en
tête l’image du juge, assis à son bureau,
en train de rédiger son jugement après
que toute l’agitation et l’excitation du
débat soient passées. Les propositions
extravagantes qui ont été avancées avec
confiance à la barre ne l’aident pas. Il
veut l’expression claire, le principe énoncé
avec modération, l’ensemble de faits
décrits sans passion qui peuvent trouver
place dans sa décision judiciaire. Un
bon exercice à faire est de réfléchir à la
façon dont vous rédigeriez vous-même
un jugement en faveur de votre client, si
vous étiez juge plutôt que défenseur de
la cause de votre client. Adaptez ensuite
votre discours à partir de ces lignes.
Vous serez surpris de constater à quelle
fréquence le juge reconnaissant, au moment
de rendre son jugement, adoptera
les mots mêmes que ceux de l’argument
ainsi présenté. Vous lui aurez fourni les
will be predisposed to use them because
they are at hand and the more so if your
opponent has adopted a less helpful
though possibly more showy method of
advocacy.
After all, the problems of pleading are
all problems of psychology. One mind
is working on another mind at every
point and all the time. The judicial mind
is subject to the laws of psychology like
any other mind. When the Judge assumes
the ermine he does not divest himself of
humanity. He has sworn to do justice to
all men without fear or favour, but the
impartiality which is the noble hall-mark
of our Bench does not imply that the
Judge’s mind has become a mere machine
to turn out decrees; the Judge’s mind
remains a human instrument working
as do other minds, though no doubt on
specialised lines and often characterised
by individual traits of personality, en-
éléments essentiels du jugement; il sera
prédisposé à les utiliser parce qu’ils seront
à portée de main. Il le sera d’autant plus
si votre adversaire a adopté une méthode
de plaidoyer moins efficace, mais peutêtre
plus flamboyante.
Après tout, les problèmes de plaidoyer
sont tous des problèmes liés à la psychologie.
Un esprit agit sur un autre esprit
sur tous les plans et en tout temps.
L’esprit judiciaire est soumis aux lois
de la psychologie comme tout autre esprit.
Lorsque le juge revêt sa robe, il ne
se désavoue pas de l’humanité. Il a juré
de rendre justice à tous les hommes sans
crainte ni faveur, mais l’impartialité qui
est le noble sceau de sa barre n’implique
pas que l’esprit du juge soit devenu une
simple machine à rendre des décrets; l’esprit
du juge reste un instrument humain
qui fonctionne comme les autres esprits,
bien que sans doute selon des logiques
spécialisées et souvent caractérisées par
des traits de personnalité individuels,
engageants ou non. Il est donc bon que
l’avocat connaisse non seulement son
dossier, mais aussi son juge, en ce sens
où il connaît le type d’esprit auquel il
aura affaire.
Mais je pensais à des questions plus
vastes, pas à de simples préjugés ou
prédispositions, lorsque j’ai affirmé que
l’esprit judiciaire était soumis à des lois
gaging or the reverse. It is well, therefore,
for the advocate not only to know
his case but to know his Judge in the
sense of knowing the type of mind with
which he has to deal.
But I was thinking of larger matters,
not of mere prejudices or predispositions,
when I said that the judicial mind
is subject to well-known psychological
laws. One of the most conspicuous, and
perhaps one of the most creditable, of
the instincts of all intellectual minds is
a tendency to assist anyone who confesses
that he is struggling with a difficulty.
I call it the instinct of rescue. There are
occasions when it is worth enlisting on
your side. When you know that your
case is confronted with a serious difficulty
in the shape of an awkward passage
in the evidence or an embarrassing
precedent, do not shirk it. Read the awkward
passage with all emphasis or quote
psychologiques bien connues. L’un des
instincts les plus manifestes, et peut-être
l’un des plus louables, de tous les types
d’esprits intellectuels est la tendance à
vouloir aider quiconque avoue être aux
prises avec une difficulté. J’appelle cela
« l’instinct du sauveur ». En certaines occasions,
il vaut la peine de le rallier à vos
côtés. Lorsque vous savez que votre cas
présente une grave difficulté, que ce soit
sous forme d’un passage délicat dans la
preuve, ou encore d’un précédent embarrassant,
ne vous dérobez pas. Lisez
le passage délicat avec toute la mise en
relief nécessaire, ou citez le précédent
sans broncher, et signalez la difficulté
qu’il crée pour vous. Vous constaterez
presque invariablement que le premier
instinct du juge sera de vous aider en
soulignant que la preuve vous cause
moins de tort que vous ne le supposez,
ou que le précédent peut être distingué
lors de l’examen. La Cour est favorable à
l’absence de toute dissimulation de difficulté
et est encouragée par l’affirmation
même de cette difficulté à s’atteler à la
résoudre ou à l’atténuer. Un homme de
bien luttant contre l’adversité exerce toujours
un attrait particulier pour la justice
et pour tous les autres esprits généreux!
La solution qu’un juge lui-même trouve
à un problème est évidemment beaucoup
plus précieuse pour l’avocat que celle
the authority without flinching, and point out the difficulty
which it creates for you. You will almost invariably find that
the first instinct of the Judge is to assist you by pointing out
that the evidence is less damaging to you than you represented
or that the precedent is on examination distinguishable. The
Court is favourably disposed by the absence of all concealment
of the difficulty and is attracted by the very statement of
the difficulty to address itself to the task of solving or alleviating
it. A good man struggling with adversity always makes
an appeal to the judicial as well as to every other generous
mind! A solution which the Judge himself finds for a problem,
too, is always much more valuable to the advocate than one
which he himself offers to the Court, for the Court is naturally
tenacious of its own discoveries and your opponent who
ventures to challenge its solution finds his adversary, not in
you, but in the Court – a much more serious matter! I should,
however, add that the expedient of disarming your opponent
by anticipating him is one to be used with discretion; it is not
always possible to adopt it, nor is it always desirable to resort
to it. Circumstances alter cases. Nor is it always well to dwell
too emphatically on the bad points of your case – you may
defeat your object by satisfying the Judge that they really
are fatal to you. I only desire to indicate the utility of these
methods of advocacy in suitable instances.
One principle, however, is of universal application. There
can be no good advocacy that is not orderly in its presentation.
It is a well-known fact that a skilful exposition of a case often
largely supersedes the necessity for argument. I have indeed
heard it said of an artist in advocacy that he never argued his
cases; he merely stated them. So orderly and adroit was his
arrangement of his statement that the conclusion which he
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qu’il pourrait lui-même offrir à la Cour, car la Cour est naturellement
attentive à ses propres découvertes. Votre opposant,
s’il s’aventure à contester cette solution, trouvera son adversaire
non pas en vous, mais en la Cour, ce qui lui sera nettement
plus ardu. Malgré tout, j’ajouterai que de si vous avez la
possibilité de désarmer votre adversaire en le devançant, vous
devez le faire avec discernement. En effet, il n’est pas toujours
possible d’utiliser cette méthode, comme il n’est pas toujours
souhaitable de le faire. Les situations varient selon les circonstances.
Il n’est pas non toujours avantageux de trop insister
sur les aspects négatifs de votre cause : vous risquez d’aller à
l’encontre de votre objectif en convainquant le juge qu’ils vous
sont réellement fatals. Je tiens seulement à souligner l’utilité
de ces méthodes de plaidoyer lorsqu’approprié, selon les circonstances.
Un principe, cependant, doit être appliqué universellement :
il ne peut y avoir de bon plaidoyer dont la présentation ne soit
pas ordonnée. Il est bien connu que l’exposé habile d’un cas
supplante souvent largement la rigueur de l’argumentation.
J’ai effectivement entendu parler d’un maître-plaideur qui
n’avait jamais eu à défendre ses arguments, il lui suffisait de
les présenter. Son exposé était fait si adroitement et de façon
si ordonnée que la conclusion qu’il souhaitait voir en être
tirée paraissait une évidence. L’expression populaire « je
n’argumente pas, j’explique » s’applique avec plus de subtilité
que ce que croient généralement ceux qui l’emploient. À cet
égard, je m’efforce de faire comprendre à tous ceux qui ont
pour ambition de réussir en tant qu’avocat qu’ils ne doivent
pas négliger le côté mécanique de la préparation. L’ordre et
la disposition des documents au dossier ont beaucoup plus
d’importance que ce qu’on croit généralement. Lorsque ce
42 | SUMMER 2023 | THE ADVOCATES’ JOURNAL
THE ADVOCATES’ JOURNAL | SUMMER 2023 | 43

wished to be drawn appeared inevitable. The colloquial retort
– “I’m not arguing with you, I’m telling you” – has a subtler
application than its users generally appreciate. In this connection
I venture to impress upon all whose ambition it is to be
successful advocates that they should not neglect the mechanical
side of preparation. Orderliness in the arrangement of the
documents in a case has far more importance than is generally
realised. When what I may call the mechanical apparatus of a
case works easily and well, the mind of the Judge is inevitably
favourably impressed. He follows easily what is presented
to him in orderly fashion and he is predisposed to accept as
sound what is so well-ordered. Even the judicial mind is not
immune from the attraction of the path of least resistance.
As you will have observed from one or two passing quotations
which I have already made, I have recently been looking
into Quintilian’s Institutio Oratoria or Institutes of Oratory.
Both that great work and Cicero’s well-known dialogue
De Oratore are amazing repositories of information and
suggestion on the art of pleading.
One topic with which they deal at great length is the use
of humour in debate. I doubt if anyone has ever succeeded in
defining humour, but we all know it when we hear it and it is
certainly one of the most valuable parts of the pleader’s equipment.
It has a curious and almost incalculable psychological
effect – I had nearly said physiological.
Now let me say a little about the form as apart from the substance
of pleading. I believe that no advocate can be a great
pleader who has not a sense of literary form, and whose mind
is not stored with the treasures of our great literary inheritance
upon which he may draw at will. The fortune of an argument
depends much more than is commonly realised on the literary
garb in which it is presented. A point made in attractive
language sticks in the judicial memory. You must avoid the
commonplace without falling into the bizarre. Originality is effective
but eccentricity merely repels. There is much in the way
in which a speech is started; as the French with their infallible
instinct put it, c’est le premier pas qui coûte. You want to arrest
attention from the outset. Even the driest topic can be made
interesting with a little imagination and ingenuity. To be interesting
is almost as important as to be logical.
Let me in passing just mention a habit of some advocates
which is peculiarly exasperating to the Judge. Who has not
heard counsel when faced with a difficulty endeavour to postpone
the evil day by the time-worn phrase “I’m coming to
that”? You know and the Judge knows that he never will, if
he can help it. The better course is to deal at once with the
point put to you. The question indicates the train of the Judge’s
thought; he will not be diverted from it by your evasion. Have
it out then and there, even although you may have to desert the
progress of your argument for the moment. You can work back
to your main theme with a little dialectic skill.
Let there be balance and proportion in your argument. Some
advocates give as much time and trouble to the exposition of
their bad points as they do to their good points. There is no
worse fault. The Judge will soon be unable to see the wood for
the trees.
It would be attractive to dwell on the manners of the advocate,
the importance of courtesy to one’s opponent, respect
towards the Judge and fairness to all. But that is too large a
region upon which to enter now.
44 | SUMMER 2023 | THE ADVOCATES’ JOURNAL
que j’appellerai l’appareil mécanique d’une affaire fonctionne
facilement et convenablement, l’esprit du juge est inévitablement
marqué favorablement. Il suit facilement le raisonnement
qui lui est présenté de façon ordonnée et il est enclin à accepter
comme juste quelque chose d’aussi bien structuré. Difficile de
résister à l’attraction qu’exerce la voie de la moindre résistance,
même pour un esprit juridique.
Comme vous l’aurez probablement deviné à la lumière des
citations que j’ai faites, j’ai récemment relu l’Institutio Oratoria
(L’institution oratoire), de Quintilien. Cet ouvrage et le traité
bien connu De Oratore de Cicéron sont d’étonnantes mines
d’informations et de suggestions sur l’art de plaider. L’un des
sujets qu’ils abordent longuement est l’utilisation de l’humour
durant les joutes oratoires. Je doute que quelqu’un ait
jamais réussi à définir l’humour, mais nous le reconnaissons
tous lorsque nous l’entendons et c’est certainement l’un des
éléments les plus précieux dont dispose le plaideur. Il a un effet
psychologique curieux et pratiquement incalculable, que je
qualifierais presque d’effet physiologique.
Permettez-moi maintenant de dire quelques mots sur la
forme, en dehors de la substance de la plaidoirie. Je crois
qu’aucun avocat ne peut être un grand plaideur s’il n’a pas
le sens de la forme littéraire et si son esprit ne recèle pas les
trésors de notre grand héritage littéraire, dans lesquels il peut
puiser à sa guise. La réussite d’une plaidoirie dépend beaucoup
plus qu’on ne le pense généralement de la forme littéraire
dans laquelle elle est présentée. Un argument présenté dans
un langage attrayant reste dans la mémoire des juges. Il faut
éviter le banal sans tomber dans l’insolite. L’originalité est efficace,
mais l’excentricité rebute. La façon dont on débute une
plaidoirie est importante; comme le disent les Français avec
leur instinct infaillible, c’est le premier pas qui coûte. Vous
devez capter l’attention dès le départ. Même le sujet le plus
aride peut être rendu intéressant avec un peu d’imagination et
d’ingéniosité. Être intéressant est presque aussi important que
d’être logique.
Permettez-moi également de faire mention, en passant, d’une
habitude prise par certains avocats et qui est particulièrement
exaspérante pour le juge. Qui n’a jamais entendu un avocat,
lorsqu’il est confronté à une difficulté, s’efforcer de repousser
le moment fatidique en utilisant l’expression usée « j’y arrive
»? La meilleure avenue consiste à traiter immédiatement de
la question qui vous est soumise. La question vous indique
la ligne de pensée du juge; celle-ci ne sera pas détournée par
votre dérobade. Répondez à la question sur le champ, même si
vous devez renoncer à la progression de votre argumentation
pour le moment. Vous pouvez facilement revenir à votre thème
principal avec un peu d’habileté dialectique.
Assurez-vous que votre plaidoirie soit équilibrée et proportionnelle.
Certains défenseurs mettent autant de temps et de
peine à exposer leurs arguments les plus faibles qu’ils le font
pour leurs arguments les plus forts. Il n’y a pas pire erreur. Le
juge sera bientôt incapable de distinguer la forêt qui se cache
derrière l’arbre.
Il serait intéressant de s’attarder sur les manières de
l’avocat, sur l’importance de la courtoisie qu’il démontre
envers son adversaire, de son respect envers le juge et de l’équité
dont il s’assure de faire preuve envers tous. Mais il s’agit
là d’un domaine trop vaste pour pouvoir s’y aventurer
maintenant.
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