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 A P R I L 2 0 1 6 29 to adjudicate this sort of provision and reach a consensus on their own. In addition, the panel cautioned LeNoury against rattling off the key points of his overview too quickly and to avoid referring to Justice Stratas by name. "He is a popular judge," Hutchi- son said. "If I were you, I would just say 'the Federal Court of Appeal' instead of his name." Heintzman observed that the big- gest mistake a lawyer can make in the Supreme Court is to insist on making a 60-minute speech while warding off any judicial attempt to take him off course. "If you cannot say what you have to say in 20 minutes and then have the rest of your time available for questions, you have done something wrong," said Heintzman. "They will have questions. Don't think: 'Gee, I don't want any ques- tions.' Instead, think: 'Gee, this is great that I'm getting questions!'" The panel said that judges invariably have read a formidable pile of bench notes, facta, and lower court decisions. Oral sub- missions constitute a brief, vital period when they can visualize the ramifications of their options and figure out how to fit them into existing jurisprudence. "Will the Supreme Court panel be as interventionist?" LeNoury asked. "Oh, yes, if not more," Heintzman assured him. LeNoury and Sirlin returned to their Bay Street law office to rework their submissions, focusing on crafting a more succinct overview and isolating a handful of key points. A week later, the two men felt a reassuring glow of pre- paredness as they settled into their seats in the Supreme Court. Sure enough, the judges wasted no time in taking LeNoury off script. He coolly rode the wave of their interrogation and later noted with satisfaction that his oppo- nent had mistakenly attempted to fore- stall judicial questions. "My observation was that, after a while, this did not sit well with the court," LeNoury recalled. The overall experience left him a convert to the virtues of the institute's mock sessions. "Even if you have argued cases at other levels, appearing before the Supreme Court calls for a different approach to preparing your argument and preparing to present your argu- ment," LeNoury said. "It is invaluable to avail yourself of the preparation pro- vided by the volunteer lawyers of the institute." T he idea for an advocacy insti- tute arose during a 2004 visit to Washington, D.C. by a group of Supreme Court of Canada law clerks. Two of them, Owen Rees and Grégoire Webber, toured the Georgetown Institute, where 90 per cent of attorneys who have upcom- ing appeals at the U.S. Supreme Court rehearse before nine mock judges in a replica of the courtroom. Rees and Webber were keen to import the concept to Canada, but they foresaw many bridges to cross first. Where would they get a roster of expe- rienced counsel to act as judges? Where would sessions be held? Would coun- sel be willing to risk exposing their appeal arguments and strategies? How would the institute pay its administra- tive costs? Rees and Webber realized that in order to succeed in recruiting mock judges with unquestioned experience and savvy, they would need instant credibility. It occurred to them that Frank Iacobucci, a highly respected Supreme Court judge, had recently retired from the bench. "We asked him to chair the institute and he was very enthusiastic," Rees recalls. "It would never have gotten off the ground without his support." The institute was also able to attract a roll call of former Supreme Court of Canada judges for its honorary board of directors. After some ad hoc practice sessions in 2006, the institute was officially launched in 2007. "We began with sessions in Montreal, Toronto, and Vancouver," says Webber, now a law professor at Queen's University. "There was definitely an appetite. Initially, we helped counsel in 17 per cent of cases going to the Supreme Court. That doubled to 30 per cent, and then to 50 per cent." A nonprofit organization, its working board is composed of the chairperson of each province's regional committee. Approximately 100 active advisers are available to stock panels. With a budget of just $6,000 and pro bono services worth an estimated $3 million annu- ally, the institute is a marvel of low-cost efficiency and selfless professionalism. "The contribution made by the bar never ceases to amaze me," says Webber. "It is available to everyone," Rees adds. "Whether you are in government or private practice; a big firm or a small firm; in Newfoundland and Labrador, or in B.C. Some counsel who have been to the Supreme Court of Canada well over a dozen times see this as a part of their practice." In 2011, Rees accepted a plum position as executive legal officer to Chief Jus- tice Beverley McLachlin. He was replaced by Chaudhury, another former Supreme Court law clerk, who brought in new contacts, energy, and an outsider's per- spective. Chaudhury persuaded Webber "The Supreme Court doesn't want to hear what you think. It wants to tell you what it has trouble with — and that is precisely what the advocate doesn't want to talk about." SHANTONA CHAUDHURY, Supreme Court Advocacy Institute

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