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"Canadian Coaches and the American Star-Bar System" - Signal Differences Between the Canadian and American Supreme Courts
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by David Debenham*

 

I have speaking engagements in the United States from time to time.   On one occasion, a lady from Brooklyn complained about my “Canadian” accent, which made me sound like ABC newscaster, Peter Jennings (in fact we are both from Ottawa, and have an Ottawa Valley accent).  On other occasions, I am paid the highest compliment; I “almost seem” like an American.   In fact, Canadians are very similar, and yet, very different, from Americans, and that creates a large number of misunderstandings.   Americans ask for a “toboggan” and we hand them a sled instead of a toque.   We ask to go to the “washroom” after we’ve consumed the better part of a “two-four”, and “binned” all over the “chesterfield”, and Americans give us a quizzical look.  With that in mind, here is my American to Canadian translation of our Supreme Court of Canada.

 

 A.   Our Federal System and Yours

 

A federation is a union comprising of partially self-governing states/regions united by a central government. A confederation is an association of sovereign states/communities adopting a common constitution. The Antebellum South considered the United States of America a Confederation, and the southern states united under a “confederacy” against the “northern aggressors” to fight the Civil War/the War Between the States.   At around the same time, Ontario, Quebec, New Brunswick and Nova Scotia formed a “confederation” called Canada. Canada was, and is, a Confederation in name only.  The result is that our Supreme Court of Canada is supreme over all provincial courts of appeal in the interpretation of federal, provincial, or common law. As a practical matter, the Supreme Court of Canada will leave unique provincial statutes to be interpreted by the highest court of that province (the Court of Appeal), but the Supreme Court of Canada, can, and on occasion, does, hear cases of public importance even though it is exclusively within the provincial jurisdiction.  Because it is the supreme law on all matters, there are no provincial supreme courts, comparable with your state supreme courts.  What does this mean?

 

It means our Supreme Court hears cases involving a wider variety of subject matter, and as a result has required a wider variety of expertise to sit on that court. Some are elevated directly from practice for that experience. Many are elevated from provincial courts of appeal.  A lot have an academic background in popular areas of Supreme Court of Canada appeals, such as criminal or constitutional, law. Cases are normally heard by panels of 5, 7 or 9 judges after they have been granted “leave”.

 

B.   The “Cert”, or “Leave”, Court

 

In most cases, permission to appeal must first be obtained from the court to appeal to the Supreme Court of Canada. Instead of “certiorari” we call this process “motions for leave to appeal”.  These motions are virtually always in writing, and decided by a panel of three judges of the court. By convention, this panel never explains why it grants or refuses leave in any particular case, but the court criteria is the same as the American court’s Rule 10,1 namely a matter of public or national importance, to settle an important issue of law.  Anyone seeking leave to appeal has about a 1 in 10 chance of succeeding, with your odds increasing or decreasing by the written advocacy in the leave application.  For that reason, there are a few firms, including my own, that have a group that specializes in “coaching” counsel on how to get leave, and then proceed through the appeal process in the Supreme Court of Canada. Such coaches assist counsel to navigate the vagaries of the Supreme Court of Canada rules and forms, as well as coach them on the manner of argument in the highest court in the land, which is often very different than in the courts below.  Because the “leave” court sits in 3 panels of 3 judges each, and the actual appeal may be heard by 5, 7 or 9 judges, the approach to leave is very different from American “cert” court where 4 of the 9 Justices must vote to accept a case, and 9 Justices hear the appeal.  Typically the American court accepts less than 100 of the more than 7,000 cases applying for “cert”, making the odds of success decidedly like a lottery.  In the American milieu, the Justices can use the gate keeping process as a stalking ground for anticipating the ultimate result if an appeal is heard--- a dynamic largely absent in the Canadian context where the appeal panel is both unknown, and unknowable, at the leave stage.  Not only is the size of the panel unknown, but the judges often retire well in advance of the mandatory age of retirement so that strategic voting on a leave application, in an effort to have certain cases decided certain ways, is a mug’s game in Canada.

 

C.   The American “Star-Bar”

 

In both Canada and the United States the justices hear only about 80 cases a year.  However, in the United States the majority of the lawyers arguing them are specialists who routinely appear before the court, typically on what Americans call “the Bill of Rights” cases.  The more diverse nature of Supreme Court of Canada appeals has led to a very different practice of appellate counsel from the provincial or federal courts carrying their cases right through to the Supreme Court of Canada.  There are many advantages to this approach; (1) you often have the benefit of trial counsel being in attendance and making arguments so that the court can understand the nuances of the record before it, and (2) the appellate counsel tend to be experts in the substantive law under review, such that the court has the benefits of the best legal experts in the field.  The disadvantage, and it is a large one, is that the advocates have to learn an entirely different approach to written and oral advocacy given the strictures of the Supreme Court of Canada rules--- the one area where the American approach of having Supreme Court specialists pays dividends.  Thus Canadians have coaches of substantive experts who are the prime advocates, and the Americans have their “star-bar” advocates as their prime advocates with substantive experts as their coaches.

 

There is no oral advocacy on a leave application.  On the appeal itself, each side has one hour each, and the appellant may split the time between argument and reply. If the appellant uses the entire hour allotted for argument in the principal argument, five minutes will be allotted for reply. If the appellant does not use the entire hour for principal argument, up to a maximum of fifteen minutes can be put over for reply, which, together with the normal five minutes for reply, can be used for a total of twenty minutes.  This is not terribly different from the American approach, save for the fact that their Justices make oral submissions look like the television show, “Shark’s Tank”,2 with questions being peppered from all directions without respite.  In this case the speed of the “Jeopardy” contestant is required such that specialists faced with such barrages can indeed earn their pay, as opposed to our approach of fewer questions inviting longer answers, which are more appropriately answered by substantive experts appearing at the Bar.

 

Conclusion

 

At first blush, Canadians, the Canadian court system, and the Supreme Court of Canada appear so similar to their American counter-parts.   That is not entirely illusory. However, the degree of similarity can result in small, but important, nuances or distinctions between the two systems being overlooked at one’s peril. 


2 the American version of C.B.C.’s “Dragon’s Den”, from which A.B.C’s “Shark Tank” was patterned.


* David Debenham is a Co-Chair of the Supreme Court Advocacy Group at McMillan LLP in its Ontario office.  He specializes in construction law and is a certified fraud specialist.  He can be contacted at david.debenham@mcmillan.ca.

Thursday, June 26, 2014
Litigation (Civil, Business and Commercial)
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