George Strathy

2Hello there, Pulat. Thank you for inviting me to join you today. I'm looking forward to the talk.

4fine. That is fine.

6Well, there, there is a bit of a story, I suppose. I, I didn't find out until after the portrait was up on the wall and hanging there, that convention has it that people don't smile for official portraits. I didn't know that at the time, and I'm not sure it would have made any difference because I wanted to, deliberately wanted to present a welcoming exterior to the portrait and to be seen to be in a positive way as a representative of the justice system through the portrait. The Law Society is good enough to commission a portrait for every Chief Justice, both the trial court Chief Justice and the Chief Justice of Ontario. And I was essentially told that I could, you know, subject to approval, I could choose the artist.

7And I chose an artist whose work I actually owned, or some of whose work I actually owned. His name is Momo Simic, and Momo had a gallery in St. Jacobs, Ontario. And on a visit there, my wife and I bought a beautiful portrait of a Mennonite cart being driven by two young women. So the choice of the artist, and Momo is actually a very accomplished portraitist as well as a general artist. So I chose him to paint my portrait. I was very happy with the result, and there it is, my smiling face on the walls of Osgoode Hall until it's replaced by my successor, Chief Justice Tulloch.

11Well, I— it's pretty unconventional. I was born in Toronto. My parents were living in Toronto at the, at the time. I was born at Toronto General Hospital where in fact my first well, my first child was born in Women's College Hospital, my first daughter, but one of my— the next daughter was born at Toronto General. So I was born and raised for the first few years of my life in Toronto, where my parents were from.

13Well, we moved to Montreal. My dad was a banker, and he was moved to Montreal where we lived for about 3 years when I was between, I think, about 6 and 9 or so. And then we spent the next 6 years in the Bahamas where my dad was posted. So I, I spent some of my early schooling and my early life in the Bahamas until when I was about 13, I was sent back to Canada for boarding school. So I, I ended up in Canada again and then in in Montreal for university.

15I did an undergraduate degree in, in political science and economics at McGill. It was then, and that in those days you could enter second year McGill from what was then Grade 13 Ontario, so it seemed like a, a good thing to get a jump on university. So I did an honors BA in international politics. I loved it. I was fascinated by it. I was thinking of going into the, the diplomatic service. I went to U of T, did a master's degree at University of Toronto in political science, really soon found that the academic life was not for me and So I walked across the Queen's Park Crescent to, to the law school, applied to U of T Law School, and entered U of T Law School in 1971.

171976. So I articled. I graduated from U of T Law in '74. Articled for the next year and called to the bar in 1976.

19Yeah, yeah. Surprising to think that now, but that's the case, I guess, you know, 46 years up until now. Yeah.

23It's a big topic, Pulat, but I'll just mention, by the way, that the lawyer, the partner who told me that I should plan my summer holidays was none other than Ian Binnie, who was a partner at the firm. And he's actually written a recent article about that firm in the Advocates Journal that talks about the culture in the firm, or a little bit about the culture. But I think it was the culture of the profession at the time was slower paced and it was perhaps at least partly because we didn't have the technology that we have today. You know, as I say in the article, you could usually communicate with the client by letter.

24You could set out your opinion in a letter, and maybe a week later you'd hear back from the client, or you'd write a letter to an opposing lawyer and a week would go by. They'd have time to think about their response. So it was a slower pace. And I think necessarily less pressured pace than the practice of litigation today. One of the things that I will say, and I think I've said it in other contexts, I worry about what the billable rate or the billable hour, the emphasis on billable hours is doing to the profession today, you know, creating strong incentive to people to work excessive hours because their remuneration is directly tied to it.

25That's one of the things that concerns me about the state of the profession today. But, and to go back to what really your question was, Pulat, I think one of the things that I think is being, is in danger at the moment is mentoring. When I talk to young lawyers, as I often I did in my capacity as Chief Justice, and even to senior lawyers, everyone was lamenting the decline in mentoring. And that was the case before the pandemic came along. There had been reduced opportunities, reduced ethic that regarded mentoring as a responsibility of a lawyer. But I think the pandemic has made it even worse with the tendency to go from one Zoom call to the next Zoom call to the next Zoom meeting to the next Zoom hearing.

26Not a lot of time in between for the casual meetings between a lawyer and a junior lawyer or a lawyer and an articling student just to talk and to learn by watching to learn by osmosis. I mean, when I— and I don't think I was unique at all— many lawyers who joined the profession in the 1970s and before learned from just sitting in another lawyer's office and listening to her or him communicate with clients, interview witnesses, talk to other lawyers, and we were taken along. You know, I Time and again as a young lawyer, a more senior lawyer would pass me in the hall and say, look, I'm going to such and such. Do you want to come along?

27It might be a lawyer's organization dinner. It might be a lunch with another lawyer. It might be a court hearing. But it was just done because it was what lawyers did. We trained the next generation of lawyers by making them a part of the work without really worrying about whether you can bill the client for it or whether you'd recover the time. It was just the way the profession worked. And I do, I feel very strongly that that is not happening as much as it should be, and particularly It's not happening where lawyers are going into the practice without any experience at all of working at a firm or working in even a small partnership.

28So that troubles me, the loss of mentoring and mentoring opportunities.

32Well, it's a, it's a challenge. I think, you know, the, the, some of the, the law schools are Lakehead and Toronto Metropolitan University or Lincoln Alexander to be specific. Are incorporating practice management, practice, how to run a practice into their curriculum. And that is certainly going to be a help. But I don't think it answers the concern that everybody— you can't just do it on your own. You need, you need help. You need to have role models. You need to have examples of how lawyers behave and how they don't behave. And you have to learn skills that sometimes can only be taught by doing and practicing. And, you know, frankly, I'm not sure that I would agree with you, Pulat, that people are getting in court even at the big firms.

33One of the biggest complaints I've heard from lawyers, even at the big firms, is they're not getting into court as juniors. They're not getting to stand on their own feet and do trials. Back in the bad old days when I started out practice, I was doing trials in my first and second years of practice on my own. And now I think you could likely find mid-level partners at some big law firms in Toronto who've never done a trial on their own. And I think part of the problem is because they've never done a trial on their own, they're reluctant to go to trial. They're nervous about going to trial. The system is designed to encourage and promote settlement, and there's nothing wrong with that.

34But I think one of the consequences is that junior, mid-level lawyers are simply not getting into court, and their advocacy skills are undeveloped. Their confidence in themselves is undeveloped, and it's a bit unfortunate, frankly.

36It's hard to compare it. I mean, frankly, back in the bad old days, there were some pretty grumpy judges around, grumpy even with people who were doing a good job and who were experienced advocates. I think what I think may— you can probably say that judges are more even-tempered nowadays, but But I do know, and I know this just from talking to my colleagues on both the trial court and the Court of Appeal, that we would see a lot of people come before the court and you'd say to yourself or your colleagues, you know, that young person has potential, but they need some mentoring. And I don't want to put down newer advocates, because some of the best advocacy we've seen in the Court of Appeal is from younger advocates.

37I'd say on the criminal side in particular, where advocates are regularly in the Court of Appeal, there are some very strong advocates in the early years of the profession. But we also see some advocates who who have who show promise but need more experience and need more guidance.

39A bit more than 8, but close to 9.

41I don't want to put it that way. I mean, I think what I was really saying is that there is an appellate bar in the criminal— on the criminal side, people who specialize in appellate advocacy and both on the Crown side and the defence side in criminal law, they are regular, make regular appearances in the Court of Appeal. So they become used to it, they become comfortable at it. And they're very, very effective at it. There are some civil lawyers who specialize in appellate advocacy, but I would say they were fewer. The ones who do are extremely, extremely good. But it takes time to get used to the art of advocating in an appellate court.

42I don't like to call it an art actually, because it's That implies it's something you either have or you don't. I think it can be learned. But I wouldn't want to— I don't say that there aren't some great civil appellate lawyers because there are.

44I think you can look at it from two perspectives. Part of the work of the Court of Appeal is what we refer to as error correction, error correction. The argument comes before the court that the trial judge misapplied the law, didn't properly state the law, or in another example in the criminal side, failed to instruct the jury properly. And so we are asked to correct that error and determine what the outcome should have been or would have been had the judge properly applied the law or properly stated the law. That is probably the majority or a certain majority of the court's work, appellate work. The other part of the court's job is to state the law, determine the law, declare the law, develop the law, and in a way that maybe sometimes either reconciles apparently conflicting Superior Court decisions or corrects one line of authority and applies another line or states the law according to what that other line has said about it.

45So we are stating the law for the province to be applied by trial court judges in the province, and our aim obviously is to state it in a clear way that will be understood and applied by trial judges. I would say in the majority of cases where we do that, we are moving the law incrementally in small steps as opposed to moving it in large steps because we we don't want to sometimes it's difficult to unders— appreciate the consequences of your decision if you state the law too, too broadly. So we tend to do it in a more refined and contained manner.

47Well, I think it does come from our common law tradition, and it comes from the way that common law has developed through the application of principles on a case-by-case basis. And I would also say, though, that it's a, it's in a certain sense a judicial philosophy of, and what you might call judicial humility, of not wanting to do anything more than is necessary to decide the particular case in front of you. And as I say, the reasons are that you— one very good reason is you can't always anticipate what new facts might come before a court in the future or what arguments might be made to court in the future. That don't present them in the case in front of you.

48So I think, you know, most judges would prefer to take the cautious route and to say, at least at the appellate level and intermediate appellate level in the case of a court of appeal, and say, let's not go any farther than we have to.

50Yeah, I'm not sure whether I would entirely endorse your observation that, you know, that human rights the principles wouldn't apply in the human rights field. But I do agree that there are times, and the, you know, the gay marriage decision of our court is a good example of it, where a big major step is necessary in order to bring the law in in pace or in conformity with modern conceptions and modern attitudes. But I'm not even sure that in other areas of human rights that it's— I think it is appropriate in other areas of human rights to apply an incrementalist approach as opposed to a big step radical change approach.

53Yeah, I'm not sure, except just to maybe focus on it a little bit. But I don't think there was any other particular reason.

56Well, look all judges, appellate judges and trial judges, want to get it right. They want to decide the case in the manner that's fair and just and legally correct. The advocate advocacy system, adversarial system, supposes that you put two protagonists in a courtroom, and in that crucible will come the facts and the law and the context that will enable the court to decide the case in a just and correct manner. When only one of those participants is effective in doing that, it makes it difficult for the court to be satisfied that they've got everything they need in order to decide the case. And it very often means that the court has to step in to make sure there's been a fair balance in the presentation of the case, whether— I mean, judges don't mind doing more work, but that's what it basically means is that you have to— you can't rely on counsel to put everything you need to have in front of you.

57You have to go out and make sure that you've righted righted the playing field and that you have everything you want to decide the case. So, and you know, there's, I can think of many times both as a trial judge and as an appellate judge where I would say to myself, you know, I wish I'd got a full argument or an effective argument on the other side of the case because it leaves me perhaps with a view of the case that isn't what it should be. And, you know, I just want to emphasize something though, Pulat, and that is, you know, I firmly believe that advocacy is a skill that can be learned. We've created this notion that someone's a gifted advocate as though they were, you know, handed a gift and told, okay, you can do it.

58But in fact, I think it It's like any other skill. It takes observation, study, practice, experience in order to develop it. And I think, I think if somebody wants to be a good advocate, then they have to apply themselves to learning that particular trade and learning a skill and learning how to, how to, how to do it.

61So it's already there, Pulat. I've said many, many times that the Court of Appeal for Ontario is the best advocacy school in the country, and I encourage newer lawyers to come in and simply watch us for a day. Watch good advocacy for a day. Watch a criminal appeal or a civil appeal. Call up the registrar and find out, or look on our list and see what's coming up in the week ahead. You know, when I was a younger lawyer, and I know many, many did the same, I'd wander into the Court of Appeal, Osgoode Hall, and sit in a courtroom and just watch for a while. So that's number one. Number two, as you may know, on our last year, I think, or the year before, Associate Chief Justice Fairburn and I announced, released a statement encouraging counsel to give newer members of the Bar an opportunity to stand on their feet and argue a point.

62And again, that was a tradition of the Bar for for as long as I was practicing law, and the court understood it. You know, if senior counsel said, my colleague, Ms. So-and-so, is going to argue the third point, we knew that that lawyer was being given an opportunity to stand up, sometimes for their first time, to make a point, and we would do what we could to give them a good opportunity to to do that. So I think it's happening, and I hope it will continue to happen. I think part of the problem again is that, you know, some middle-level lawyers have never appeared in the Court of Appeal, so they're not likely to hand the argument over to a brand new lawyer when they get a chance to do it.

63But we did see it being done, you know, we did see counsel giving a piece of the argument to their junior. And it— I think our statement gave the lawyers something to say when the client said, well, why is she standing up to argue this point? Why aren't you? Senior counsel could say, well, the Court of Appeal has told us that they'd like to see it happen, so it's a good idea.

66Well, in my capacity as Chief Justice, I regarded myself to some extent as an ambassador of the Court of Appeal, and at least that was one of the hats I wore. And every time I visited a law school, and I think I visited every law school in Ontario, I would say to groups of students I spoke to, come to the Court of Appeal, you'll be welcome there. You don't even need to ask our permission. You walk in, it's a public courtroom. You walk in, plunk yourself down and see what it's like. You know, I won't get into the debate with you about the value of mooting, but I do know there's a lot of it going on, and we're constantly being asked to provide a panel for one moot or another.

67But I agree with your point about watching, and watching it in person is not the same as watching it on Zoom. So I hope, I hope people do it more.

69No.

74Well, I would say two things, Pulat. One is, and as I've tried to emphasize in our discussion, advocacy can be learned. You know, people didn't become good advocates because somebody waved a wand over their head and said, all right, you're the good advocate. Everybody can learn it. There are techniques of learning it. There are practice doing it, critique, being critiqued by others, and studying and reading and learning methodology. So it's not insurmountable. Doesn't happen immediately. But if one wants to be a good advocate, a good barrister. It can be learned. That is the number one thing I'd say. Number two, and again, I've said this to lawyers many, many times over the last number of years, you know, take care of yourself.

75Just— and it comes back to the mental health side issue, and that is you have to look after number one sometimes. And that it's not always easy. It's not— some factors that are outside your control, particularly in the early years of practice, where it's a challenging environment for everyone. But, and I don't mean to lay this on the individual because they're, you know, mental illness is a very complex matter. And in many cases, well, it is simply an illness, and you can't necessarily make it right by putting your— saying, I'm going to get I'm going to be, be well. It just doesn't work that way. But I think one can attempt to put boundaries around oneself in order to find some time for oneself and one's family.

76And one can develop habits that blunt the impact of some of the challenges that face us in the profession. And also, I emphasized as well that there is assistance out there. We're not alone. There are programs to provide support. But mental health is a serious issue in our profession, and I've been attempting in my discussions of the subject to ensure that we do take it seriously and we do take steps to reduce the impact of some of our behaviour and some of our practices on all lawyers, but particularly lawyers affected by mental illness or affected by other challenges in their lives and their careers.

79Thanks so much, Pulat. I've enjoyed myself. Thank you very much, and I will be around for a while. So