Canadian Lawyer

Justice Louise Charron's video offering inside advice for lawyers pleading before the Supreme and other appellate courts at WATCH Justice Louise Charron takes part in the ceremony for newly appointed Supreme Court of Canada Justice Thomas Cromwell, right, at the Supreme Court in February 2009. number three and a half, in the hearing that the junior knew the file more than the senior who was giving the argument. You cannot bypass preparation." Nor will you get very far if you fail to understand the role of the court you are pleading before, Charron adds. "A common error would be a lawyer not understanding fully that an appellate court is not a fact finder and not dealing with the findings of fact at trial. Some lawyers would go and (deliver) a brilliant piece of advocacy if they were at the trial level. We would have to tell them you can't retry your case. It's wonderful but even if I agreed with you, your trial judge has made these findings. Show me the palpable and overriding error." At the Supreme Court, the best law- yers understand that the justices ask questions unrelated to their clients' case because the court has to decide the norm that will govern cases across the country, she explains. "Know what the court, the judges you will be pleading before, what they will be looking for in terms of assistance from your answers and be prepared for it." BILINGUAL JUDGES government to appoint unilingual English judge Michael Moldaver to the court after she and Binnie retired, say- ing the important thing is for the court to have the best W jurists it can have. While the Supreme Court is a bilingual hile she is a proud Franco- Ontarian, Charron is diplo- matic when it comes to the decision by the Conservative institution and it is important for judges to "acquire a certain level of function- ality in the other language," Charron says court staff can also help judges. "I would be cautious about absolutes but it is certainly a very important part of the functioning of the court that we have both languages and if you're fortunate enough to be fully bilingual when you arrive here then all the better, it is less work for you. If you're not, well the effort is put in and you learn." Pointing out that she had to learn civil law when she was named to the Supreme Court, Charron adds, "You have to teach old dogs new tricks." If anything, she thinks language skills are more important in lower courts. "I see it as more of an issue in a way as a trial judge. If you cannot understand the witness or the accused in his or her language — because it does hap- pen often because we often do trials through interpretation — you don't get the same flavour when you get the interpretation of a nuance of a testi- mony. On questions of credibility, I always found unfortunately that you are at a disadvantage for that kind of nuance and you are the only decision- maker as a trial judge. So that's a lot more crucial." Charron also measures her words when it comes to the topic of judicial activism — a charge that supporters of the ruling Conservatives often levy at the Supreme Court. "Activism is sort of complex. You often have to ask yourself in whose eyes. You can get as many complaints that the courts have not 30 A PRIL 2012 www. CANADIAN Lawyermag.com been active enough — or they have been too active. But it is an important issue that the courts have to recognize the limits of their role and in many cases the court is not engaged in draw- ing the line on the constitutional front. If the issue before you is one of statutory interpretation, it's not the time to flex constitutional muscles and ask yourself if that line unnecessarily infringes on some right or freedom. But when you are given the task of deciding such issues, you have to decide them accord- ing to the principles that are start- ing to be more and more settled and respect the line where some calls are Parliament's or the legislators' and the courts have to give it deference. But it's not absolute deference." As a judge, Charron says her hardest cases were at the trial level where cases hinged on questions of credibility. "I was often very grateful to have a jury because if 12 members of the jury came together and reached a conclusion, I thought that was stronger and I would accept their verdict." At the Supreme Court level, Charter cases imbued with policy issues were the most challenging. "Where do you draw the line on an issue of freedom of religion?" she said, citing one example. "There's no one correct answer. Rarely is there just one correct way to go. And those decisions do have a huge impact on people and the way that we will live in our Canadian society." NEW CHALLENGES emerging issues coming out of greater M eanwhile, new technologies are presenting new challenges for the Supreme Court, says Charron. "We have a lot of canadianla wy ermag.com. CHRIS wATTIE / REUTERS

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