Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M a y 2 0 1 4 17 O P I N I O N was the Bedford bench hot? There was robust and persistent, but not excessive, questioning, particularly from Chief Justice Beverley McLachlin and justices Louis LeBel, Thomas Cromwell, and Rosalie Abella. It wasn't too hard to spot the court didn't have much sympathy for the attor- ney general of Canada's position. But, on the whole, the behaviour of the bench seemed restrained and polite. I moved on to another hot, incandes- cent even, case: the Marc Nadon refer- ence, heard in January. It's no surprise there was a good deal of questioning in this one; the reference came close to home and was politically super-charged. Justice Richard Wagner, a recent appointment from Quebec, led the way in questioning and talked a lot, often leaving counsel fiddling with their spectacles and look- ing irritated. Abella was not far behind in persistence. Most of the other judges weighed in. It was hard to read where they were going, and I was as surprised as you were when, in March, the court poked the prime minister in the eye and ruled Nadon was ineligible for appoint- ment to the coutnry's top court. It was time for something completely different. I looked for a dull civil law case and found Bank of Montreal v. Marcotte, a Quebec consumer protection class action from February. The issues were whether foreign exchange conversion costs were properly characterized and disclosed on bank credit card statements, and what level of government has jurisdiction over this aspect of the banking system. The judges, particularly LeBel and Marshall Rothstein, threw out some probing ques- tions, and it was all surprisingly interest- ing and lively, maybe even a little bit hot. (LeBel got pretty testy — very testy — once or twice.) Watching these webcasts was amusing, but wasn't really getting me very far. I need- ed a different approach. So I sent an e-mail to Earl Cherniak, a seasoned and respected advocate who has appeared many times before the Supreme Court. "Hey Earl," I asked, "what do you think, is the Supreme Court of Canada a hot bench?" "Yes it is," he replied, but his definition of "hot bench" was nuanced. A hot bench, Cherniak wrote, is "a bench that has read and digested the material and comes prepared with real questions to ensure understanding and test the limits of the arguments made and the court's under- standing of them, and to try out other arguments or theories that occur in the course of the review. . . . It does not mean rude or improperly interrupting counsel (usually). But it does mean that counsel can rarely get out a prepared argument, since the bulk of the hour will be spent responding to questions." Earl warned, "Being able to get out a prepared argu- ment is a bad sign, because it means they have no real interest in your arguments." In other words, a hot bench — in Canada, at least — is a serious and respon- sible bench, an engaged bench, not just a bunch of judicial grandstanders, each try- ing to outdo the other. That's what we want, and that's what we've got. The Supreme Court of Canada is a hot bench. Philip Slayton's latest book is Bay Street: A Novel. You can read the first chapter at baystreetanovel.com. New editioN PhiPson on EvidEncE, 18th Edition General editor: HodGe M. Malek, Q.C. New editioN iN the CommoN Law Library Phipson on evidence is the leading work on civil and criminal evidence. it examines in depth all aspects of the complex principles and procedures that make up the law on evidence and can be relied upon to resolve even the most difficult issues. this new edition covers the continuing impact of the changes brought about by the Civil Procedure rules and all related legislation, and examines a wide range of important new case law, both civil and criminal. Phipson on evidence, 18th edition is also available as an eBook on thomson reuters ProView™. Call for details. to PLaCe yoUr order Call toll-Free: 1-800-387-5164 in toronto: 416-609-3800 Fax toll-Free: 1-877-750-9041 in toronto: 416-298-5193 email: carswell.international@thomsonreuters.com ordEr # L15579-E18-65203 £329 GBP Jurisdiction: United kingdom, Commonwealth Hardcover december 2013 Sweet & Maxwell Shipping and handling are extra. Price subject to change without notice due to currency fluctuations and subject to applicable taxes. A professional grade platform that allows you to interact with your eBooks in entirely new ways. This free app allows you to access your most most: everywhere. pp y y trusted reference materials where you need them s let you ch p hi Vi lib table of contents allows you to drill down to find what you need while keeping track of your path. u can perf ts from any thin your own b oView library.

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