6 September 2024 · Season 5, episode 8 · 55 min

JusticeMew

on being from England, hearing civil and criminal cases, limitation periods, and emotion

No.90
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Transcript

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Pulat Yunusov

Welcome everyone to yet another great interview of The Yunusov Question. This is a special judicial episode, and my guest today is Justice Graeme Mew of the Superior Court of Justice of Ontario. And I want to say hello, Justice Mew.

Justice Mew

Hello, thank you, and nice to be here.

Pulat Yunusov

It's really great to have you. I know you have a lot of stories because you've had a storied career, as I can tell from even from a superficial research or Google search. But I want to start with where you were born.

Justice Mew

I was born in London at the University College Hospital there where my mother worked as a nurse.

Pulat Yunusov

Just in case some of us didn't understand, which London?

Justice Mew

Oh, I should— sorry, that was one of those London, England.

Pulat Yunusov

Right, correct. So you are British. And tell us about your path, path to Canada. How did you end up in Canada? And of all places, you end up a judge of the Superior Court.

Justice Mew

Right. Well, by accident. It certainly wasn't part of the plan, but I studied law in England. I qualified as a barrister in England. I was a member of Middle Temple, which is one of the Inns of Court. And during the halfway through the English equivalent of my pupillage, I took an opportunity to come to Toronto for 6 to— turned out being 8 months to work as a sort of de facto articling student in a litigation law firm in Toronto just for work experience. And the plan was at the end of that to go back and and practice the English bar. And I sort of got diverted from that course.

Pulat Yunusov

And if I may ask, what diverted you?

Justice Mew

Well, a couple of things. It won't surprise you to know that there was a romantic element to it, as there

Pulat Yunusov

often is with my guests for some reason.

Justice Mew

Yeah, yeah, it seems to be a well-trodden path. But also, I really enjoyed my 8 months in in Canada, they gave me— I was at the Dutton Brock firm and they gave me a huge amount of responsibility. I ended up doing a lot of small claims court trials and motions up at the, what was then the county court and occasionally in front of masters. I don't think I was supposed to be doing any of those things because I wasn't technically an articling student, but I think they were a bit laxer about such things in those days. And so I had a fantastic experience and, you know, and just found the setup in Toronto very agreeable.

So the two things, I had to go back to England, my work permit ran out. So I had to leave the country and went back and spent another year completing my pupillage and then hacking around the magistrates' courts of London. But eventually I came back and had to go through a requalification process. And got called in Ontario,

Pulat Yunusov

right? So there are two interesting things in what you just said. First of all, you mentioned small claims trials, and I have always been a big proponent of small claims trials as a learning path for young advocates. I myself started my litigation practice right out of articling, and I did a lot of small claims trials in the beginning of my career, and I, I think it made a really big impact on me because it's a real trial. It's better than a simulation trial at the CPD because it's real. The stakes are real, but the stakes are low, and the witnesses are real, the judge are real, the rules of evidence are very relaxed. I find it's a great experience for those who want to learn trial practice.

Did you find something similar, or do you think that you liked small claims trials for a different reason.

Justice Mew

No, my experience was totally as you described. They were real trials. The upper monetary limit in those days was $3,000. But there were a lot of— a lot of the claims we did involved fender benders because at that time they didn't have the regime that they now have where those things get dealt with on a first-party basis. And I was probably doing 2, sometimes 3 small claims court trials a week. And

Pulat Yunusov

wow,

Justice Mew

most of the judges were— it was then called the Provincial Court Civil Division. So the judges were actually, for the most part, full-time judges. That's what they were, civil judges who sat in that court. And some of them were real characters. And indeed a number of them, you know, eventually became Superior Court judges. And, you know, I look back on that and some of the people I had trials against now 40 years ago are either lawyers I still encounter, or a number of them are judges that sit on my court. And we sort of reminisce about just how, as you say, They were real trials, real evidence. You had to, you had to meet with witnesses.

There were no special rules of evidence. It was it was a proper court.

Pulat Yunusov

Wow. Well, the second thing that came to my attention and what you said was that you're basically were a foreign-trained lawyer here in Ontario when you started your career. And this is a very big phenomenon now. I don't know how big this phenomenon was when you started practicing law here, but right now it's huge. So maybe a few words about that experience for those of our viewers who are going through this process today?

Justice Mew

Yeah, well, it, it, it has changed a lot, and I'm very familiar with, with the, some of the obstacles now because I have both hired foreign-trained lawyers when I was in practice and from time to time get contacted by lawyers who are from, mainly from, from England and Wales, who are encountering the challenges of going through the system. So when I did it, very few people were doing it because there was, although there was a joint, joint committee on accreditation, there was no option of just writing some exams. If you wanted, if they required you to do any sort of academic training, and they did, you had to find a law school to enroll in.

And I, in my case, I had a law degree. I did a law degree in England. You can become a lawyer in England without having done a law degree, but I'd done a 3-year law degree. I had done the English Bar, which is a very intense 10-month course where you finish with 7 3-hour closed-book exams on 7 consecutive working days. It's It has a pass rate of about 60%. It's pretty tough. And I practiced, you know, I mean, I'd been to the Court of Appeal in England. I'd done High Court cases. I'd done tons of magistrates' courts trials. And they required me to take civil procedure, constitutional law. Those were the only two mandatory courses.

I didn't obviously have any problem with that. But then they effectively wanted me to put in enough credits to be the equivalent of 2 years at law school. And it was, the message was, we don't really care what you do as long as you put the hours in if you want to join our club. And it's a sad reflection, I think, on the way we do things in this country where we are terribly protective of our professions. And I've sort of experienced this vicariously. My wife is an English-trained physician who went through exactly the same thing. And my own experience was that coming to Ontario, it's basically English law with a Canadian accent. It's not that different conceptually.

I mean, yes, Yes, you know, you have to find your way around in those days the library. Now obviously it's all online, but conceptually it's not that difficult. And a lot of Canadians go to England where the barriers are not as high and are able to make that transition, I think, without any difficulty. Now things have changed a lot. I was told that the Joint Committee on Accreditation, that there are more applicants seeking entry to the bar admission process coming through that channel than through any other single law school. So—

Pulat Yunusov

Oh, wow.

Justice Mew

So, you know, I mean, I was told that by the Dean at Queen's, so it's probably true, or the former Dean. So You have a lot of foreign-trained lawyers, and I suspect that there are qualitative differences depending what jurisdiction you received your education in. It gets complicated because, as I said, you can become a lawyer in England, for instance, without having a law degree. I think people have difficulty getting their minds wrapped around that concept. None of us do. I didn't do an undergraduate degree. I went to law school when I was 18. And so one of the requirements they say, if you don't have an undergraduate degree, degree, then they want you to take some extra law exams.

It's inappropriate for me to debate whether all of these things are appropriate, but I think that we make it unnecessarily difficult for foreign graduates. And, you know, people move around these days. They move around the country and they move around the world. We've made it easier to move around the country.

Pulat Yunusov

I mean,

Justice Mew

it used to be you had to go and if you wanted to move to British Columbia, you had to rewrite the bar admission course. We don't make people do that anymore. But, and it's not just law, but I, you know, I think we probably, I'm quite sympathetic to the plight of those who are struggling to come through the system.

Pulat Yunusov

Yes. Compartmentalizing legal profession into tiny jurisdictions today seems outdated. I have a question about your law practice in England. Did you wear that wig you have in your office behind you when you practiced law?

Justice Mew

I did, yes. Yeah, I did. It's seen action, not for a few years, but it has been worn in battle.

Pulat Yunusov

Yes, that's amazing. That's an amazing artifact. I ask everyone who's listening to this interview to go and watch it on YouTube so you can see it for yourself. I searched you on Google, and one of the things that came up is a Guardian article from 2013 with a headline, 'Leading lawyer Graeme Mew appointed to try to resolve Heineken Cup row.' So what was that about? And tell me about your relationship with rugby.

Justice Mew

Okay, so that was a dispute involving the professional rugby leagues in Europe and the national rugby unions of 6 countries: Scotland, Wales, England, Ireland, France, and Italy. And it involved— it was a fairly broad-ranging dispute that involved the way that the competition was organized, television rights, various sort of aspects of how this major competition, which is sort of the rugby equivalent of the Champions League, if you want to translate that to soccer. And, you know, there were very different views. Depending on which country and which league was involved. So I was brought in to try and mediate that. I enlisted the assistance of a friend and colleague, Stephen Drymer from Montreal, because I needed a fluent French speaker to assist with particularly the parties from France.

And we went several rounds of trying to mediate that dispute in Dublin. Sort of a sidebar story, just towards Christmas of 2013, I had literally spent the whole weekend on the phone trying to get the parties back to meet in person again before Christmas. And I succeeded in getting everyone to agree to meet in Dublin on the 20th of December, which was a Friday. Monday of that week, I'd been in court in Guelph arguing a summary judgment motion. I get back to Toronto and I've got a phone message on my answering machine from an Ottawa phone number. And it was, it was the Judicial Affairs Advisor to the Minister of Justice. Telling me that I could expect to receive a call in the next day or two to be appointed as a judge of the Superior Court.

And I said, well, that's great, but I have this small problem. I'm supposed to be doing this mediation in Dublin on Friday, and there will be a minor, or perhaps not so minor, international incident if I don't turn up. So the Justice Minister at the time was Peter MacKay. And by good fortune, Peter MacKay is a rugby guy. Yes. So his judicial affairs advisor emailed me back and said, I've spoken to the minister and he says, let me go ahead and do his mediation and text us. Or let us know when he's available. So I think Chief Justice Smith was expecting 4 new judges to be appointed that week, and she was somewhat perturbed when only 3 got appointed on the Wednesday.

And nobody told her that my appointment was being deferred. I went to Dublin, I did the mediation. It wasn't a very successful mediation, and in fact, somebody leaked what happened at the mediation. It ended up all over the sports pages Ireland the next day, but fortunately didn't come to the attention of the Canadian Judicial Affairs people. I then phoned P. Smith, who was the Judicial Affairs advisor after the unsuccessful mediation, and said, I'm, you know, I'm done.

Pulat Yunusov

I'm finally available.

Justice Mew

And about, you know, and he said, well, the minister's already on holiday. Normally you get a call from the minister, but he said, but I've been authorized to formally offer you the appointment. Will you accept? And so, as you know, once you've said yes, you down tools, you're not a lawyer anymore.

Pulat Yunusov

You're not a lawyer anymore.

Justice Mew

So anyway, there you go. That's a long-winded story. But eventually they did come to an agreement. Stephen Drymer carried on providing some assistance after I'd been appointed to the bench, and they got it resolved.

Pulat Yunusov

Have you played rugby? Have you been on rugby teams?

Justice Mew

Yes, not very well, but enthusiastically, but not very well. So I could tell lots of stories and I won't tell this, bore your viewers with this one. But when I came to Canada, I'd been here about 3 weeks and was in a bar where some, some, someone heard my English accent and this very South African voice asked me if I was from England and whether I'd ever played rugby. And when I answered, both questions in the affirmative. He said, what are you doing Saturday? I said I had no plans. And he said in his thick South African accent, you're going to be playing rugby. So I ended up joining the Toronto Nomads Rugby Club, which is an excellent— it's one of the founding members of the Ontario Rugby Union.

And so I played for them for a few years and subsequently I've been the secretary and the president of the club and I'm still, you know, from time to time can be seen out on the touchline there.

Pulat Yunusov

So this rugby experience to me is just another example of how broad the span of your adjudication experience is. So you sit in Kingston, I think you started in Toronto, And then after about 3 years, if I'm not mistaken, you moved to Kingston. And in Kingston, you hear both criminal and civil cases.

Justice Mew

Yes. And occasionally, if they're desperate, family, but not very often. But yes.

Pulat Yunusov

Yes. And you obviously also adjudicated sports cases, which I feel are quite different from— while borrowing elements of each from criminal and civil cases. So I don't know if we have a lot of Superior Court judges that are versatile in both civil and criminal litigation, in hearing both civil and criminal cases. Do you think you're one of the few, or do you think it's quite a common phenomenon? Maybe outside of Toronto, which—

Justice Mew

oh, outside of Toronto is pretty common. We're just not— I mean, in Kingston, you for example, and Kingston is not a small place, it's between Kingston and Napanee, which the two sort of areas I have responsibility for, you're serving a population of about a quarter of a million, you know, including the sort of hinterland and going right up to north of Highway 7. So you really have to be able to deal with anything that comes through the door. Right. And so I mean, it is interesting, you know, I had a civil litigation background. I did do a stint on the criminal team when I sat in Toronto. But if you don't have a criminal background, they're putting you on, you're not gonna be doing murder trials.

So I've certainly done my fair share of homicide trials since I've got to Kingston and, you know, other sort of exotic things like extradition and you know, so things like that. So a lot of habeas corpus applications here because we've got the two high-security penitentiaries in our backyard. And I think even in Toronto you get, you get judges who, who do rotate through different areas. I mean, I think of someone like Justice Nordheimer, now on the Court of Appeal, who was a very much a sort of civil commercial litigator, but who did a lot of very high-profile criminal work when he was on our court. So I think it's— I don't think it's unusual.

Chief Justice Smith, the former Chief Justice, always was very big on— and I think Chief Justice LeSage— on us being, you know, a generalist court.

Pulat Yunusov

So as a commercial or civil litigator that was appointed as a Superior Court judge, did you expect to hear criminal cases? And tell us about your experience of hearing your first criminal case. I think it's a different mindset. I only deal with civil litigation, and I'm very curious what you felt when you presided over your first criminal case, how you approached it, how you approached it, how was it different from your experience.

Justice Mew

Yeah, no, well, it is very different. I mean, for apart from anything else, criminal litigators actually pay attention to and expect you to follow the rules of evidence. And so sort of getting up to date on my evidence was a pretty important part of it. Criminal law is absolutely full of sort of acronyms and terms You hear about, you know, a Garofoli application or a Parks challenge or, you know, there's a lot of terminology that criminal lawyers understand. But if you're coming into it cold, you know, there's a whole lexicon you have to learn. Obviously, you need to become somewhat familiar with the code. We do get some pretty good judicial training. I mean, we have something called the National Judicial Institute, which provides excellent judicial education.

Although it wasn't mandatory when I became a judge, it's now mandatory to have taken training, particularly in handling sexual offenses before you start sitting on cases involving those sorts of charges. And judges, we've got a very supportive network of judges who you know, support and help each other. But it was, I won't kid you, it was a bit nerve-wracking during my first criminal trial. And, you know, one of the things that you haven't really turned your mind to, but if it's a judge-alone criminal trial, then you with your legally trained mind, and you know, I did a lot of tort law. I was the sort of person who when I'm out in a public place and I see something that's sort of, you know, potentially dangerous, sort of, you know, set of stairs that don't have a railing, or I'm walking a cliff path and there's no, you know, my tort lawyer's brain is thinking about the possible legal consequences.

And then you are asked to have this epic struggle with reasonable doubt. And I've always found that very challenging. and judges, you know, have to explain the reasons for why they do or do not have reasonable doubt. Juries don't.

Pulat Yunusov

I want to probe this distinction or the line between criminal and civil adjudication deeper. I feel like this comparative approach can help us civil litigators learn something about our own area of practice. So would you say then that criminal litigation is more technical and more adherent to the rules, and while the civil litigation is more about discretion, about these broad principles, about fitting the law to the justice of the case and things like that?

Justice Mew

Yeah, I don't think I necessarily put it quite in those terms, but I think there's greater latitude in a civil trial. I mean, there are still rules of evidence, and, you know, I don't think— let's put it this way. People who have been criminal litigators, I think, have a distinct advantage when they move into the— as some do. I mean, you think of some of the most successful litigators in Canada, a lot of them started off doing criminal work, and that's where they honed their advocacy skills and learned how to examine witnesses and became familiar with the rules of evidence, whether or not they are slavishly followed in a civil case. So I do think there is a, Yes, the rules, the rules of evidence matter more and have more serious consequences as a judge if I, if I misapply the rules of evidence in terms of potential appeals.

But, you know, I think, I think what's the bigger takeaway for me about the differences is that I think criminal law, obviously criminal lawyers get into court a lot more. And they, you know, they deal with perhaps, you know, more challenging situations in terms of the sort of personal dynamics that are involved representing somebody who's accused of an offense or prosecuting someone. And I think those, you developed instincts and skills which can be effectively deployed in the civil or in the family or in the administrative law areas.

Pulat Yunusov

So what advice would you give to a criminal lawyer who is considering taking on a civil case?

Justice Mew

Well, I think, yeah, I mean, I'd give the same advice to them as a criminal lawyer taking, a civil lawyer taking on a criminal case. I think you have to be careful. About dabbling. I've tried it and I, you know, I did do a criminal case shortly after I got called to the Ontario Bar. Was surprised, eh, when my client got convicted and even more surprised when he got hauled off to the Don Jail. And fortunately, I was able to get him out on bail pending appeal. And then I did win the appeal. But realized very quickly that I probably should have brought, you know, referred the client to somebody with the appropriate expertise and not taken it on myself.

So I think we all have a professional responsibility to, you know, to make sure that we can properly serve the client. And if you're a criminal lawyer taking on a civil case, that's fine. And look, just like there are all sorts of judges who handle both. There are some, certainly I see out here in the Eastern region, we have a handful of lawyers who are sort of equally adept at doing civil and criminal cases, and I see them turning up on both. But I think if you're going to take a civil case on and you're a criminal lawyer, you know, I think you need to have a certain level of knowledge, comfort, and and sort of technical ability to deal with the case.

Pulat Yunusov

Mhm. You are the author of The Law of Limitations, which is a large, large text on one of the most, I, I think interesting areas.

Justice Mew

Yeah, I'm looking around my desk for a copy of it, but it's, it's getting oh, here we go. It's, it's, it's getting bigger all the time.

Pulat Yunusov

Oh my God, it's massive.

Justice Mew

I think the first edition, which I've got up there somewhere, was about half the size of this. So

Pulat Yunusov

is the limitation period what sets the civil litigation apart from criminal litigation, in your opinion?

Justice Mew

Well, there aren't limitation periods in, certainly for indictable offenses. There are for summary conviction matters, but yes, I think limitation is interesting. For instance, in other jurisdictions, I think certainly in some American jurisdictions, that there are limitations in criminal cases as well. But yes, it is a difference.

Pulat Yunusov

But I don't think that Crown lawyers call LawPRO when they miss a limitation period on summary offenses. So no,

Justice Mew

no,

Pulat Yunusov

I think it's Yeah, that's a very big difference. So why the limitations? Why the law of limitations? How did you get into writing this book? Why are you still writing this book with all your workload? What's going on there?

Justice Mew

Well, like everything else, it sort of happened by accident. So when I— you'd asked me about the requalification process and what happened was that I I was able to enroll very much at late notice at the University of Windsor. And so that I had to do my 2 compulsory courses there, which I think combined was, you know, 8 credits. And so I had 52 other credits that I had to do and it didn't really matter what I did. Windsor were fantastic to me. there was, there was a, a professor there, now sadly departed, called Chris Wydrzynski, who we shared some sort of interest in, in various issues, and he enabled me to do a bunch of supervised research for which I got credit.

So I started writing and writing articles, and I, I got one or two published. And I, I, I'll confess, I had a bit of chip bit of a chip on my shoulder about being a fully qualified English lawyer who already knew that I could survive reasonably well in Ontario courts because of my experience doing all those motions and small claims court trials. So I was looking for other useful things that that I could do whilst I went through the requalification process. And one of my colleagues at Dutton Brock was married to a lawyer who was an editor at Butterworths. And, and I guess there'd been a book on limitations before, but the author of that didn't want to take it forward.

So the suggestion was made, well, would you be interested? I didn't have a particular knowledge of limitations, but it, it, I think, appealed to my ego to be thought of, notwithstanding that I wasn't worthy enough to be a member of the legal profession yet in Ontario, but I was worthy enough to write a textbook. So I thought I'll give it a go. And so I think the first edition was published in '89 or '90. And

Pulat Yunusov

really? Wow.

Justice Mew

Yeah. So

Pulat Yunusov

25 years, quarter of a century you've been writing this book.

Justice Mew

Yeah. Yeah. So we have a 4th edition now and I've got two co-authors now, Deborah Rolfe, who used to be at LawPRO, and Dan Zacks, who was an associate of mine when I was at Clyde& Co, which was the firm I was with when I got appointed. And so they're there now, truth be known, they're probably doing more of the work than I am. But yeah, so sort of fell into it by accident, but it turned out to be you know, there's something quite satisfying about being a lawyer's lawyer. So I, I used to do a lot of work for LawPRO, what they call repair work, so that where somebody— where there was a possibility that somebody had missed a limitation period, I would often be brought in to bring a motion to get an extension of time or, or to deal with a discoverability issue or, or whatever.

And if I succeeded, then the lawyer you know, carried on with the file. And if I didn't succeed, they were they were retaining different counsel and and having to face a lawsuit.

Pulat Yunusov

I just realized you have two things in common with another recent guest of my show, Jordan Goldblatt of Adair Goldblatt Bieber LLP. Not only does he practice sports law, but he also does work for LawPRO in a very similar vein, very, very similar capacity that you just told me about. So quite interesting.

Justice Mew

And he, he, he appeared in front of me as a sports arbitrator. So yeah, yeah,

Pulat Yunusov

great guy. Everyone should go and watch Jordan's interview as well. Really interesting stuff. You know, you live in Kingston, you moved to Kingston from Toronto. People didn't used to move from Toronto to other towns in Ontario very much. Until a few years ago. Now it seems everyone is trying to get out of Toronto. Toronto is becoming unbearable. So can you— first of all, do you like it there? And if you do, should people— should lawyers move to Kingston to practice law in Kingston from Toronto?

Justice Mew

All right, there's a few, few bits of that question. As with everything else, the, the, the, the move to Kingston was— and you're right, particularly in the judicial world, it's usually judges are trying to, who get appointed outside of Toronto, are trying to move in. It's quite unusual to go the other way. I went the other way because my now wife is a physician in Kingston and she was, we've been together 15 years, but I was a weekend commuter to Kingston. From 2009 onwards. My son was at Queen's, and that's how I ended up sort of— that was my first connection with Kingston. When I got appointed, I was appointed in Toronto. I had no intention of changing that, was going to carry on commuting.

But a vacancy came up in Kingston, and some of my colleagues in the East Region encouraged me to apply for it. And I thoroughly enjoyed sitting in Toronto. I lived in Toronto for 30 years. I know the traffic there is awful. I was there a few weeks ago and sitting in divisional court and, you know, you've got all the everything. I mean, it is gridlock. It's absolutely miserable at the moment if you're trying to drive a car there. But I still, I'm still a big fan of Toronto. But Kingston is a really It's a big enough place to have the amenities that you want in a city. I mean, we've got all of the big box stores.

The culture's pretty good. They've got a great symphony orchestra. There's theater. You've got two universities because you've got the Royal Military College and Queen's and Lawrence College, which is a tertiary college. There's big public sector here. There are, you know, there are a lot of, it's becoming more diverse. Certainly not as diverse as Toronto. And it's, you know, position-wise, I tend to take the train most of the time now because the roads are so bad. But it's a, you know, 2.5 hours, give or take, to Toronto. It's not much more to Montreal. It's less than a couple of hours to Ottawa. And, you know, if you, if you're going somewhere in the US, it's a 2-hour drive to Syracuse where you can take a take a flight out of there rather than, you know, go out of Toronto or Montreal.

So it's got all of those advantages and it's, it's, and it's on the lake in the summers. It's beautiful. The winters are a bit bleak, but, and in terms of the legal profession here, it's a really good bar. It's, it's very collegial because everyone knows everyone. You don't get the sort of game playing. I mean, I read the horrors about the civil motions backlog in Toronto, and I don't see a lot of game playing in civil motions court here in Kingston. And when the game playing does occur, it tends to be lawyers from Toronto or Ottawa who are doing it. So I think we've got a high-quality bar in Kingston. It's a great place.

Great place to practice law. And I'm sure there are, you know, all sorts of other places that around the province that are comparable.

Pulat Yunusov

Very interesting. I should go to Kingston instead of just driving by on my way to Montreal. I've never been, honestly. So it's the disease, I guess, in Toronto, very common, that we just get so absorbed, as I'm sure you understand, being basically from Toronto yourself. Yeah, but it's not just traffic in Toronto nowadays. That's, that's an old story. It's the real estate that really gets to people.

Justice Mew

Well, that's true, although, you know, one of the— certainly one of the, one of the side effects of the pandemic was that we did get an influx of people from the GTA and, and, you know, who of course, with, with more virtual working, it's now more feasible. And VIA have just reinstated the early morning train from Kingston to Toronto, so you can, you can actually now, assuming it runs on time, which is a big assumption, but you can actually now get a train from Kingston which will get you into Toronto for 9 o'clock in the morning. So, you know, there are people who will live here but maybe go into Toronto for a day or two and then retreat back to the leafy streets of Kingston.

Pulat Yunusov

I want to return our conversation to the courtroom. And I have a question to you about the role of emotion in the courtroom. I don't think that it's been talked about a lot in continuing professional development courses or in judges' addresses or speeches to the bar, but I think it's an important topic, especially in Toronto. Everyone is coming from a different culture. Everyone is coming from a different background. Everyone now has a personality that potentially is distinct from this traditional stoic, stout British type, you know, that traditionally you have probably seen a lot in England and in your, in your years here in Canada. And some people are emotional, some people are quite colder and more composed.

Can you talk about the, the tension between professionalism, civility, and effectiveness in the courtroom and different personality styles in your own experience as a judge of the Superior Court?

Justice Mew

Well, there are a lot of things in there, but let me— I think an important quality of any advocate is being able to take an objective look at your client's case, your client's interest, your client's positions, their they're paying you to put their case forward or defend their case or whatever it happens to be, not just to the best of your ability, but also in a way that where you communicate to the client accurately what they should expect from the process. And I think there is always a danger when you become too closely associated with your client's cause. And as you've said, sometimes, you know, lawyers start taking things far too personally. And you see in certainly sort of motions, some motions court experiences, lawyers who are taking personal shots at each other.

And that's a— I don't think it's— I mean, you said, you know, we're sort of British and stiff upper lip and it's not cricket. I actually don't think it's— I remember when I first sat in motions court in Toronto, finding it actually very reassuring that with the very diverse range culturally of lawyers who are appearing in front of me, they were still maintaining those traditions of civility, and it didn't matter what their sort of, you know, personal background was. I think that has traditionally been one of the strengths of the legal profession, that we have this sort of code, part of it written, part of it unwritten, in terms of how we conduct ourselves towards each other.

In places like Toronto, I mean, I just talked about how in Kingston people don't play the same sort of games, but you know, Toronto, I don't know how many lawyers there are in Toronto now, 20,000, 25,000 probably. And you have people who dabble in litigation, you have other people who do it all the time. You have people who only do one type of litigation, you know, the management side or the plaintiff side. And I think those sort of qualities of being able to take a step back and be objective, you know, we still address lawyers as my friend. And sometimes clients can't sort of figure that out. Why you call, why you calling that guy who's representing the, you know, your opponent, my friend?

And you have to explain that, you know, we will, represent our clients mightily in court. But we, you know, we might go and have a coffee or a dinner or a drink with them afterwards. And obviously, you know, we have a profession that used to be very sociable, and that social interaction, I think, reduces the sort of personal misconduct or misbehavior that you've described. I can say confidently, I don't think the pandemic has helped improve things because, I mean, in Toronto, I think it's still the case that most civil motions are done virtually. So people don't even come into the courtroom. And you know that when you come into the courtroom, it's not just what happens in the set piece when you're addressing the court that matters.

It's the conversations that you have with your opponents before court during the break. Sometimes, I mean, there used to be some judges who were notorious for saying in motions court, look, I've read your materials. I think you two need to go out in the corridor and have a talk with each other and, you know, and sometimes provide a bit of guidance. I mean, I guess you can do that virtually, but it was a lot easier to do when people had to interact with each other personally. So we've lost some of that, and maybe it's coming back, maybe it's coming back a little bit now. But, you know, I hear from lawyers who come down from Toronto and Ottawa and, you know, who's reading the legal media about, I mean, what are the timeouts now for civil motions in Toronto?

It's probably I mean, it's a year or more, I think. And, you know, I'm not inviting business, but I mean, got a short motion, you get one here next month. You can get a long motion within 2 or 3 months. So our problem is actually the other way around. We can't— Toronto, you can get trial dates. We can't give you trial dates for, you know, for 18 months or 2 years. But I, you know, so I think the sort of motions culture is probably born out of the lack of personal connectivity between lawyers. And, you know, it's easy when you're sort of just shooting off emails and not actually talking to people. I mean, how often do people pick up the phone?

Rather than send an email. And I think having lost that sort of personal contact has a knock-on effect in terms of the sort of adversarial approach that's taken.

Pulat Yunusov

Apart from cases of emotion transforming into incivility, have you seen cases of deliberate effective use of emotion and advocacy, or maybe effective deliberate control of emotion and advocacy that impressed you as an adjudicator?

Justice Mew

Look, there's a— there can be a place for emotion. There's certainly advocacy. I mean, good advocacy, you know, often involves, you know, sort of control of the delivery of the message. I mean, you can use emotion, you can use pauses. You know, there are all sorts of things, all sorts of devices that you can employ that may be more effective. I think, you know, the reality is that sometimes when people get a bit too flourishing and flamboyant in motions, I remind them that there isn't a jury. But, but, you know, I think at the end of the day, everyone has their own style. And, and if your style involves, you know, deploying a certain amount of sort of emotion, that's okay.

I mean, if that's your personality, but it's like everything else, you don't want to, you know, don't do anything to excess.

Pulat Yunusov

Right. Emotion is something that some lawyers struggle with because I guess personalities differ and, as you said, styles differ and often it's guesswork for the lawyer because we often don't know who the judge will be and even if we know who the judge will be, we don't know if the judge likes this much personality or that much personality. So I guess the common advice for many lawyers is just keep it to a minimum, and only the very experienced counsel among us are able to deploy this advocacy technique effectively. In that respect, do you agree with that advice? Do you think that most lawyers should keep the emotion to the minimum, even at the risk of becoming monotonous, and just focus on the objective delivery of facts and argument?

Or do you think that judges can get bored, for example, at intervals, and they should be stirred up a little bit? Or what are some of the advocacy tips that you could share in this respect?

Justice Mew

Well, can judges get bored? Of course they can, just like anyone else. But it's difficult to be prescriptive about it. But what I would say is this: you need to read your audience. You need to, and as you've said, every judge is different, that you need to pay close attention to what's, you know, the receptiveness. You need to pay attention to what the judge is writing, eye contact, things like that. I remember a great story involving the late Mr. Justice Lissaman, who some of your viewers may remember. He was a character actually originally an English solicitor who came to Canada. And he, he had two very senior counsel who were appearing in front of him.

And at one point, one of the senior counsels said, Your Honor, I've noticed that you haven't written anything down for the last 20 minutes. And Justice Lissaman responded, when you say something worth me taking a note of, I'll write it down. So you need to—

Pulat Yunusov

That's good feedback, by the way, from the judge. We all want that feedback.

Justice Mew

Well, you need to pay attention. And actually, the hardest judges to appear in front of are the ones who are expressionless and don't ask any questions and don't give you any sort of feedback, whether it's verbal or nonverbal. But I think you, and you know, actors and my brother-in-law is a part-time stand-up comic and he'll go into a club and he'll do the same set 2 nights running and get completely different response from the audience. And you have to be prepared to adapt. If you get stuck to a particular script or a particular method of delivery, and it's not landing in terms of the audience, the judge, well, then you've got to do something about it.

You've got to be prepared to change. And I think that to some of that, that does come with experience. But, you know, being able to adapt and change your delivery to try and elicit a better response or a better audience is sort of part of learning the art of advocacy.

Pulat Yunusov

You know, you've heard hundreds if not thousands of cases. Do they all blur to you eventually with time, or do you remember all of your cases, or do you remember only some, the most salient of your cases? And if you remember your cases, what do you learn from them as a judge? And you don't have to practice law anymore. You have some— a very different experience. You have a very different professional experience. What do you learn from your cases, and how past cases and decisions affect other cases that you hear?

Justice Mew

Well, inevitably you do remember some cases more than others and, you know, sometimes I get embarrassed where, where a lawyer will come up to me at a, at a party and will say do you remember this case that we had together? And, and Sometimes I do and sometimes I don't. I usually with a bit of prompting, I'll remember. I mean, you're right, I've done, I don't know, thousands of cases now. But you remember them for different reasons, sometimes because of the issues, sometimes because of the human sort of issues involved. Sometimes you remember the lawyers. One thing I, when certainly when I hear cases, I spend a lot of time thinking about those cases and probably some would take too long, sort of thrashing them, thrashing around the, either the evidence or the law and trying to figure out what the result is.

You do need an ability, I think, once you've made a decision that you make the decision and then you've got to move on. So I don't go back and sort of re-argue or try and re-persuade myself about the outcome of cases once I've heard them. Every now and then the Court of Appeal gives me a kick and reminds me of a particular case. But I think we all have particularly memorable cases. I certainly don't remember them all, but I've done some pretty interesting ones. And I would say I remember all the interesting ones.

Pulat Yunusov

Nothing like a reminder from the Court of Appeal.

Justice Mew

No, no. Well, so I, you know, they're my insurance policy, I guess. So, and I think that's an important part of the system.

Pulat Yunusov

That's a good way to put it. Justice Mew, thank you so much. This has been a wonderful conversation. I personally learned so much. This is the best continuing professional development course for me, and I hope for thousands of people who watch this interview. Thank you so much, Justice Mew.

Justice Mew

All right, absolute pleasure, and look forward to our paths crossing again soon.

Pulat Yunusov

Thank you.