Danielle Robitaille

2Hi Pulat, how are you?

4Yeah, yeah, in the burbs.

6I think that's what my parents intended. Both my parents were born and raised in a town called Maniwaki on the Quebec side. And my father was raised in an entirely Francophone household, a household that had 15 kids. And my mother was raised on the English side of town, but obviously bilingual. In a family that had 7 kids. And they met in Ottawa and fell in love. And they intended to raise us bilingual. And my brother and I both went to French primary school and then switched to French immersion for high school. And we gradually, year over year, lost the language. And so my facility in French is quite good on the comprehension side. So I can understand and I can read, but I'm very self-conscious in conversational French.

7J'ai tellement honte when a francophone speaks to me. And I haven't had to keep it up because I've been longtime partners with Christine Mainville, who is a litigator in my office and a Franco-Ontarian. And she litigates in French, is just such a bright light in the bar and is able to provide this service of serving clients in French. And so I haven't had to kind of exercise that muscle, and year over year I've lost it. And it's a great regret and a terrible pain, and it's awful that you've started the interview this way, Pulat, and it's not very nice.

9Yes,

11Correct.

13Yeah, my first name is Marie, and like a lot of Québécois women whose first names are Marie, and then you use your middle name, Danielle.

15Well, people notice it when I have to flash my Law Society card or my passport or that sort of thing, but I've always gone by Danielle or Robitaille or Dr. That's usually what people call me.

17Well, we have a great photographer and we make liberal use of the airbrushing technique. And on some occasions have been known to use, you know, wind machines. You know, do we lean into the parts of the profession that are more glamorous? I think some of us do. And, you know, we're living in a matriarchy. Marie is our leader.

19Yeah, she's our fearless leader. And, you know, every shop has a culture that trickles down from the leadership. And Marie is, genuinely interested in design and fashion. These are great passions of hers and have been her whole life, and so the firm reflects that. And, you know, some of us are more or less interested in those aspects of life, for sure. But I think we're all nerds, Pulat. I think we're all nerds, yeah.

21Marie and I are— yeah, I mean, Marie and I are so different. And people— it's funny, people kind of are surprised when they get to know me because our personalities are so different. And I think people assume that Marie would collect a group of people that are completely like-minded or have a similar disposition. And there are— we have a lot of differences. I think that we're very similar in terms of our core beliefs and our values and what we want for the firm and what we want for the profession, what we want for women in the profession, but our dispositions are very, very different.

23Yeah, and Marie can speak Arabic, which is pretty cool as well. So, and I think she wishes that she'd kind of held on to that language a bit tighter as well. Yeah.

25It's pretty tough. I came in, I gotta tell you, Pulat, that I came in like really enthusiastic because I've been busy here show. And, and I really, you know, let me take a moment to just say how great your show is. And it— I think the thing that I am really enjoying about it is how positive it is. And, and I, and I think it's such a contribution, particularly for students and young lawyers. I really hope that they're listening to it, because I think what you're showing that we don't see very often is that you've made your way in the profession and you've done it kind of your way, you know, not like you're Donald Trump or anything, but you, you, you, you—

27you've used your, your, your talent and your acumen and your entrepreneurship and you've carved out a life for yourself that from an outsider's perspective listening in, is a beautiful life. And I think that the profession's missing a little bit of that message right now. And I really commend you for your generosity in pushing that message out because I think that there are a lot of young lawyers and students who need to hear it right now.

29Come on. We can do it later, I guess. Yeah,

31Sure.

33Well, none of us really knew what— I think what we really wanted to do, and, and I think people who pick political science is because they can't, you know, they can't do math or real science, the hard sciences. So, you know, it's really a default choice. But for me, the thing that really blew my mind in my undergraduate studies was, was women's studies. That, that those courses were the ones that really just floored me and opened my mind and my spirit and my soul to philosophy and theory and politics and social movements and power. And that's really what I think kickstarted my intellectual life, which to that point had been nonexistent.

36Well, I think a lot— like, I read a lot. I was really a voracious reader. And I loved fiction. I think I had— I was surrounded by really incredible friends. I had a really solid group of friends in high school. I was a dancer. I was really interested in performance and the stage. And my parents were always interested in the news and politics, domestic politics, and engaged kind of in public life in that way in terms of wanting to talk about controversial issues and debate kind of current events. We went to church every Sunday, and so the deep philosophical questions of life were something that I examined with my family on a weekly basis.

37And so, you know, I think all of that was there for me. But I, when I kind of look back and I think of the advantage that I had over so many of my peers, and, and the neighborhood that I grew up in was Kanata, which is a suburb of Ottawa, and, and I grew up there during the tech boom. So I was surrounded by kids who came from privileged backgrounds and, and who had parents with PhDs and doctorates and and all sorts of education. And I think the edge that I have had over the course of my life and my career is the absence of expectation. You know, no one really had any set goals for me.

38I didn't have any set goals for myself. And what that allowed me to do is genuinely learn. You know, when I went to university and when I went to law school, I was able to kind of feed my desire for knowledge and challenge in a genuine way that was unfettered by a thirst for achievement. And I see so many young lawyers and students who get crippled by expectations that are external or internal, and they get in their way of this pure experience of learning, which is so beautiful, and we're so fortunate to have it. And I just think it's such a shame. But, you know, I really— and, you know, I think I had— now that I've had kids, I think I can see it quite clearly— I had undiagnosed learning disabilities.

39And so, you know, no one thought I'd really amount to much. And so it really freed me up to kind of figure things out, you know, and I see it as a great edge that I've had over so many of my peers.

41Mark Flanagan is the love of my life. That my husband of 15 years, and, you know, like almost every person in my life, the thing that attracted me to him, which I can speak to, who knows why he was attracted to me. It was his brain. He's a massive intellect. You know, you want to talk about a nerd, my husband, my husband's a nerd. He has a PhD in history from McGill is a celebrated writer in the area of Middle East history, and is the best conversationalist you'll ever meet.

44Yeah, well, I, I'm really, I'm grateful that you asked the question, because I do think that we're in need of some realism on this topic. And Mark, what I can tell you from my, my personal experience is that Mark is the guy on the ground, okay? Like, he's the guy driving the kids around picking them up, bringing them to extracurriculars. He's the one that homeschooled them during the pandemic. He is a 100% engaged father and the first call, okay? So when the school has to call someone, they don't call me first, they call Mark. And that can cause a lot of confusion. You know, people were very confused when he took 6 months leave and was, you know, trolling around the neighborhood with the twins in a double stroller.

45You know, he'd get free coffees from neighborhood restaurants who assumed he was just kind of pinch-hitting. But he has been fully engaged 100%. And we were very, very clear, deliberate, and unified that my career was the priority. And, you know, I think that Mark, you know, a lot of guys we went to school with claimed to be feminists and, you know, said that they believed in gender equality and in all of that. I think Mark's life and career demonstrate that he was prepared to put his money where his mouth is, and he's lived it. You know, he's living the feminist ideal, and he has put my career, my role at the firm, my role in the administration of justice first, always, always.

46And that's a deliberate choice that we made, and not a lot of families do that or can do that. You know, it's very strange to me that there appear to be factors related to gender that roll into these choices when families are making them. People are not making these choices and decisions based only on earning potential, for example. And I get it. I mean, they're complicated decisions to make. They were not complicated in my case. It was not hard for us to figure it out and figure out how we were going to manage. And I think a big part of why it wasn't complicated is because he is truly an egalitarian feminist. He was raised by a single mom, that may be part of it, and he's the best, you know, he's the best, but he's doing the thing that, you know, women for generations have been doing, supporting, you know, star litigators in Toronto and all over the country and being the the poor schmuck who's driving people around and waiting at dance lessons and guitar lessons and struggling through the math homework, right?

47Women have been doing that forever. And so I want to celebrate him, but there are a lot of women who deserve to be celebrated as well that have done the same role.

49I don't you know, to me that I don't know. I don't even know how to answer that, Pulat. Like, you know, I think that what's important to me is that my colleagues think I'm good, that the court— that I have some credibility with the court. You know, whether I become like Marie and a household name, I mean, that no one really has any control over that. That has to do with a very particular alchemy. And there's, there's no way to predict that or control for it. And I don't, I don't aspire to it. It's not exciting to me or interesting to me. I mean, the things that are really, really interesting and challenging to me right now that I'm very excited about are things related to Managing this law firm, mentoring young associates, stretching my litigation chops in other areas of the law.

50That's the stuff that really interests me and that I'm really jazzed about. The star question is kind of a funny one. I love Rob. He was very sweet to include that quote. I think it's been responsible for a lot of my subsequent success.

52No,

54Yeah, so I was on a, a few commercial litigation files, one involving a supermodel, which was really cool, and and some inquiry work at the time. And Arthur Hamilton was a partner at Cassels, and he and I worked together quite a bit during my litigation rotation, but I actually did a corporate rotation. Like, I did deals, and I don't know how it works now, but they— you would— a full boardroom would be kind of full of paper and copies. And I was married that year, and I was in the middle of my corporate rotation. And I was full of paper cuts from working on a deal day in and day out. And you know that really cheesy picture that the photographer wants to take with the, you know, the hands on hands?

56Couldn't do it. My hands were too busted up from the deal. Yeah.

58Hmm, I run a low-volume criminal practice, so I, I will do anywhere between 4 to 8 trials a year.

60I think the high-volume practitioners in the Toronto Bar are doing you know, 2, 3 trials a month.

62My, my practice is low volume because we do not take legal aid certificates at the trial level. So we— our clients are paying privately And we are able to charge fees that are in the range of what someone in private litigation would pay for representation. And so the kind of analogy is closer to a civil litigation boutique in terms of the business of the firm. The reason criminal lawyers in Toronto will run a high-volume practice has mostly to do with financial viability. And the legal aid rates are so low that the only way to make a practice viable is to run it high volume. And, you know, that has been a big complaint of the CLA, the Criminal Lawyers Association, and related associations and public interest groups who have said this is not sustainable, this is not good for anyone.

63And because my practice started this way, it's hard for me to comment in a full-throated way, but what I can say is, and I have taken legal aid certificates at trial for big cases. So for example, I'm defending a first-degree murder on a Legal Aid certificate right now. The advantage of defending a charge on private funds is you're unencumbered in terms of the steps you want to take in the defense for the most part. You can defend the case, no stone left unturned. You can really put your back into it and ensure that you are doing everything you possibly can for the client. And of course, the stakes are so high, you know, you're dealing with the liberty interest.

64And so it's very difficult for me to imagine practicing in another way where my time is super constrained because of volume, and the retainer is so constrained, and the process of accessing experts, private investigators, and so on is so constrained. It's not something that I would want to do, certainly at this stage of my career.

662 weeks, a week, 2 weeks, somewhere in there.

68Yeah.

70Yeah.

72Well, there's a lot of trial prep, but most of my cases— and I know Lawrence told you this— but most of our cases settle, right? So you know, a lot of time is spent assessing the merits of the case, assessing the strengths and weaknesses, and then moving into negotiation. So there's a lot of negotiation and there's a lot of time spent on the phone with the Crown and pre-trials with the judge. And so, you know, a lot of time is spent on the resolution track and a lot of time is spent on the trial track. Sometimes things resolve at the last minute, of course. But, you know, I think that here's the thing.

73Here's the thing, Pulat, is I don't think commercial litigators should ever feel sore about not having enough trial time or I'm not sure that volume really tells the whole story in terms of the quality of the litigator, or— and I say that because I know that Marie had a low-volume practice for most of her career as well. And there are people at her vintage who did, you know, multiples of the amount of trial work that she did, but she, by my estimation, is the best trial lawyer in the country. And so I think experience only gets you so far, and some criminal— some junior criminal lawyers, I think, get distracted by the idea of volume and want are, you know, really crave the experience of trial and want to get, you know, they've got a goal of a certain number of days of contested hearings they want under their belts or something.

74And to that I say, I don't know that that gets you where you want to be. I think there's no substitute for really careful preparation of a file and executing of a plan. In a very deliberate, mindful way. And if you're doing a few of those or a couple of those a year, I think you're further ahead than someone who is just rushing from case to case, discharging their obligations in a kind of hurried way you know, doing the best they can but really maybe not absorbing all the lessons that a contested trial has to offer, if you follow me, Pulat.

77Yeah, I think it's probably close to 95%, maybe even higher in criminal litigation. But, you know, the difference is there are certain Depending on the politics of the day and the culture, there are certain offenses that get litigated no matter what. So, you know, impaired driving is a great example that, you know, those cases won't necessarily settle at the same rate, and sexual offenses won't settle at the same rate. So the courthouses are full of litigation of sexual offenses, and impaired driving cases, and some domestic as well. And those, those, the reasons those don't settle have to do with constraints on Crown discretion and also collateral consequences. So the accused is less likely to plead guilty because of collateral consequences on family law proceedings.

78And so Those are the kinds of incentives and disincentives that kind of challenge the most things settle idea. And so when you say criminal lawyers don't have a motion practice, the criminal lawyers in the Canadian Bar who do have a motion practice are the ones who defend sexual offenses. The number of motions now that precede the litigation of a sexual offense is just massive. So and extremely complex and multi-partied. So many of my friends like me on the defense side in criminal litigation do have a motion practice, and it's a very interesting part of the momentum that builds towards trial and the, again, the incentives and disincentives to settlement. And I think not all that dissimilar to what you find on the commercial side.

79So I think I'm going to challenge you, Pulat. I think there are more similarities to our practices and more synergy than you would think. And my prediction, my prediction for the next, you know, 20 to 25 years of the Toronto Bar is we're going to see people strike out of these silos, and I think we're going to see more cross-discipline litigators. I hope that our firm will be part of that innovation. I think we're well positioned to do that, but I encourage all the litigators listening to not feel constrained by the discipline they were trained in or the subject matter expertise and to not be intimidated by perceived differences in litigation, because I think the closer you look, the more similarities you find and the more opportunity you can find.

81Yeah,

84Such a good and interesting insight, Pulat. Like, A run-of-the-mill domestic case, and by domestic case, I mean allegations of domestic violence, will have just a massive amount of documents to review because of the reality that intimate partners text message each other all of the time. Right? So you're— you gotta look at all those text messages, baby. You gotta listen to all those audio files. You gotta look at the pictures. You gotta create your chronology. I mean, I'm creating my chronology in the same way you're creating your chronology, Pulat, and so are the family lawyers, by the way. So it's the same types of evidence, the same categories of evidence that we're all looking at, and it's emails and text messages and social media and videos and CCTV.

85And all of it. And it's a massive amount of information to review and derive meaning from. And I think that it has massive implications on all aspects of our practice, but also on a witness's experience. You know, I think I think that witnesses more and more are confronted with the idea that maybe their memory of how something went down is not accurate, because when you review the contemporaneous correspondence or the video or the audio, it puts the lie to them. And I think that we're starting to understand the fallibility of memory and the porous nature of human memory. And I think technology is helping with that. And I know that trial judges are reluctant, even on the criminal side, to make negative credibility findings.

86But what I think is easier for people to say and understand is a reliability issue. You know, this is not, this is not exactly, this witness's evidence isn't exactly how it went down, and I'm going to hang my hat on this piece of independent evidence that exists independent of anyone's credibility and reliability and helps me get to a reasonable doubt or helps me conclude that actually, you know, what happened was this disagreement that the defendant claims occurred. So, you know, I do think that it enhances the truth-seeking function of trials, but it can only do it if lawyers are willing, able to wade into the mass of documents and records and video and metadata.

87I mean, pull up metadata, you know, it's so important. It's just a lot of— it's a lot of time sitting at your desk. It's a lot of time kind of working through it, and it's not that glamorous. You're not striding into court with your gown flowing behind you. You're sitting there making a timeline.

89You know, it's tough for me to say. I mean, there's very different investigative standards with the police, and remember, the police are the ones that lay charges in Ontario. And I can't, you know, in my experience, unfortunately, I can't say that there's a ton of investigation before the laying of a charge a lot of the time. And in particular, where there are allegations of violence, historical allegations of violence— and by historical, I mean that someone wasn't called, the police weren't called immediately to the scene. And so it's not— I'm not sure that the investigative techniques have caught up to the technological reality, I guess, That's what I would say.

91I mean, it'd be really fascinating to see how the conviction rate has evolved over the years in relation to technological advances. I think that'd be a really interesting study, and the graduate students who are listening should look into that, call Poulak. But, you know, the reason why the majority of cases settle in Ontario is because we have a proud tradition of Crown attorneys acting as ministers of justice, and they have to assess every case for reasonable prospect of conviction and public interest. And it is the case that most of the charges in the system don't meet those tests, and, and/or there is a way to resolve the case in the public interest without a trial.

92And in my experience, the Crowns in Ontario are very well-intentioned and ethical, take their responsibilities very seriously, and want to see the dockets cleared of the matters that can be resolved, should be resolved or need to be withdrawn.

94Yeah.

96It's a really complex question. I mean, the police do have other tools, and you see those tools exercised in the youth criminal justice context, where there's a lot more pre-charge diversion and cautions, that sort of thing. And certainly the police are empowered to caution individuals, and they'll do that from time to time. I think where things get really complicated is kind of in specific subject matter areas. So domestic violence, for example, you'll see that some police forces have policies that when an officer attends at a domestic call, they are meant to leave having charged one person. And the reason for that policy is, of course, for years and years officers would attend domestic calls and caution someone who was a terribly violent offender and and men would abuse year over year over year, and society wouldn't assist the vulnerable parties who were impacted by that deviant behavior.

97And so the idea was, well, we got to kind of take that discretion away from police officers because, you know, there's so much societal bias that enters into the exercise of discretion. And so we gotta make a policy that someone needs to be charged when these calls happen. So you can see how there are good policy reasons to fetter the discretion of police officers. But the outcome, as you say, is very expensive and results in overcharging probably, and the expense of massive public resources and private resources for those people who can afford it. So it's a very, very challenging public policy question, and a lot of very smart commentators are of the view that one of the things that would make a massive difference is an investment in education of police officers.

98And better training for police officers so that, you know, if we kind of boost the level of sophistication and education of officers, we would see some of these policy concerns alleviated. But, you know, the impact of bias and prejudice and cultural cultural

100It's something that I think we have to take as a given. You know, it's always going to be part of our system. And I think the complex question is, how do we mitigate? And where, you know, where can we try to strike a balance?

102I think that all litigators should watch all trials.

104Yeah, that,

106It's really fun. Thanks for the chat.