Canadian Lawyer

12 www.canadianlawyermag.com FEATURE CROSS EXAMINED A CAREER ANY LITIGATOR WOULD ENVY As chief general counsel at the Department of Justice, Robert Frater worked on countless high stakes cases "[The Meng extradition case] was a great experience, professionally, to be doing cases that were intellectually interesting, high profile and argued at the highest level of advocacy." FOR LAWYERS who love arguing about the intricacies of the law but want to be involved with high-stakes litigation, the Department of Justice is in many ways the ideal workplace. Robert Frater has been chief general counsel at the DOJ in Ottawa since 2016. He has worked there from 1991 until he announced his retirement this November. Before that, he was a prosecutor at the DOJ in Toronto. "I've had the fortune to work for an outstanding law firm, in that there are people in the department who have an incredible amount of knowledge about almost every- thing," says Frater. While Frater has an enviable internal network leading the DOJ's litigation, he also regularly appears opposite the top private practice lawyers. Most recently, Frater acted for the Canadian government in the United States v. Meng extradition case that captured interna- tional headlines. "We argued many motions in the case that were effectively like arguing appeals… It was a great experience, professionally, to be doing cases that were intellectually interesting, high profile and argued at the highest level of advocacy." While Frater began his career as a trial prosecutor, he quickly gravitated to doing appeal work. "I like to argue law. I think that's what I learned about myself. I was much better at arguing law than I was in cross examining witnesses." Frater recalls realizing that when he observed excellent cross examinations. He watched the late David Humphrey, and it "was wonderful to watch. He had a way of getting a rapport with witnesses who he was cross examining and destroying them without them feeling bad about the whole experience." For Frater, though, he started doing appeals very early in his career and never looked back. After he had moved from Toronto to the heart of the DOJ in Ottawa, the Harper government split the department into the prosecution side and the non-prosecution side, and Frater chose the latter and started to broaden his practice to other areas of law aside from criminal. "Within government, it is somewhat easier to have a niche of doing predomi- nantly appellate practice or work like that, like judicial reviews, where you're spending most of your time arguing laws as opposed to building cases to argue on the facts." Frater has spent most of his time appearing before judges and other lawyers. Still, he says Reference Re Milgaard was a highlight because that was one of the few cases in Supreme Court history that heard live witnesses. In fact, Frater became a witness himself in that case, testifying to corroborate evidence provided by the Chief Justice at the time, Antonio Lamer. At the Supreme Court, one of the witnesses broke down and refused to testify, so the Chief Justice called the witness into his chambers. Frater went as well, and the witness subsequently alleged that Lamer promised to put her in the witness protec- tion program in a subsequent lawsuit. So, as a result, Frater had to testify to confirm that Lamer had not made such a promise. "Fortunately for me, I was believed by the trial judge. So, that was important for me to learn how nerve-wracking it can be to be a witness in a proceeding." Frater's list of cases would be the envy of any constitutional lawyer, but his role also involves high-stakes work outside of the

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