Sujit Choudhry

1And it's— sorry, it's— and it's— it's— it's Pulat, right?

3Well, Pulat, it's very nice to be here. And I've— I'm an avid watcher of the— of these interviews. And so it's— it was— I was delighted to be asked to participate.

5That's correct.

7I, I did. So, so as it turns out, my parents had come to Canada in the '60s separately. They met here and they were both academics, and so they went back to India for sabbatical leave, and that's where I was born. And then I came back as an infant and I grew up in Toronto, in North York in the 1970s and 1980s.

9Don Mills and Sheppard, right by Fairview Mall.

11Yes. And back in the day when there was nothing out there, you know, when my parents moved there, all of my father's colleagues lived in the Annex or Moore Park or Rosedale back when those areas were affordable. And they thought, you know, my parents had moved out to, you know, the sticks, right? It was all farmland around there, if you can imagine it at that time. Time.

14Yeah, sure. No, absolutely. So my father was an economist. And he, you know, he built one of the first econometric models of the Canadian economy, actually. And he came to Canada in the 1960s. And he was sort of part of the wave of American-trained academics who revolutionized Canadian higher education in the '60s. He'd come to the United States from India in 1949 to do his graduate work. And then he ended up coming to Canada and staying. And my mother was a now is retired, a professor of nursing. And she'd come to Canada by way of England, and she kind of landed in Hamilton in the 1960s, worked at a hospital, and then what later became Chedoke McMaster Hospital.

15And she became a, you know, she did her graduate work, became a professor of nursing, and she met my father. And so education was a big part of our upbringing. And so that was something that we did. And, you know, as an immigrant, that's what you tell your kids to do, right? Just work hard and study well and seize opportunities that come before you.

18Sure, of course.

20Yeah.

22You know, I just want— I wanted to leave home and and I had grown up in Toronto and I had gone to high school downtown at a school that was on the U of T campus, and I felt that U of T was a place I knew well, and so I got a great scholarship offer to go to McGill, and and I had a wonderful 4 years there, and I— and it was a good experience.

24You know, it's a good— it's a very good question because both of my kids ended up going there as well. And so I think that It was pretty hard when I got in. I think it's even harder now, but it's, I mean, it's, it's, it's a highly selective school and it's you know, it's a, it's a meritocracy, right? It's, it's, there's actually no— what's wonderful about the school is that unlike every other private school I'm aware of, there's no legacy policy. And so the fact that you might have a parent or a sibling carries no weight in the admissions process. And so I had none because we were new to Canada and my kids got no no favors from that either.

25So yeah, it was very selective and it was, it was sort of foundational and fundamental for me as a, in terms of what I became later.

27Yeah, so, you know, it wasn't planned this way. It just sort of happened. So I, you know, the Rhodes Scholarship was something that I was— I won. I was it's not something I planned to have happen. It just was an opportunity that was— became available, and I was honored to. And I, and then I, I, I talked with some mentors. And so one of them is actually now Mr. Justice David Rose on the Ontario Court of Justice. And so David had been my residence don at McGill, and he— when he had— after he'd returned from Oxford, where he himself had studied law, and he was enamored of the way he'd been taught law.

28And so it made a huge impression on me because the way in which he explained it, law was taught not in a lecture hall, but through tutorials. And essentially the way the Oxford education worked is that, and I remember this vividly. So the first day I got, the first day of studies, I was in a room with about 15 other students who were at my college and they gave us a reading list. And I said, what's this? They said, well, this is what you have to read for next week and write a 2,000-word essay on. And I said, okay. And so I took it, and it was an 8-page reading list of cases and secondary sources on the concept of the duty of care and negligence.

29And then I had to spend a week teaching myself the law of negligence and write a 2,000-word essay. And then I had to email it to my tutor, and then who had read it before the session, and then myself and one other tutorial mate. We were with the tutor for an hour, and each of us had to present and defend our paper. And so that was the Oxford way, and it was an extraordinarily difficult process of learning how to be think like a lawyer, but it was, I think, incomparable training for the type of work I now do, right, which is kind of appellate, a lot of appellate advocacy, because you basically had to state your arguments clearly and succinctly and defend them.

30And the tutor was there not to teach directly, but to teach through questions. And to challenge you and to push you. And it was really a very unique way of learning how to think like a lawyer. And then, and then after the 2 years at Oxford, I came back and I had also been advised that the best way to learn about Canadian law and to succeed would be to to complete on an abbreviated basis a law degree. And so I did that at the U of T. And and so that's why I got the two law degrees back to back, two years each. It wasn't a plan, but it sort of happened that way.

32I do. I mean, it was a, it was like, it was a huge part of my life, and I enjoyed it a lot. And you know, parts of it were exhilarating. And so, and it was something that I think I've brought into this new chapter in my life. And, but for the first kind of, I say the first chapter of my career, that's what I did. You know, I was an academic, I taught, I wrote, and, but I always had my hand in other things. So I wasn't just living in the library or teaching in the lecture hall. I was doing opinion work. I was doing advocacy work. I started to do intervention work at the Supreme Court, and then I also pivoted about maybe 10 or 15 years ago to do a lot of international work.

33And so advising on constitutional processes and peace processes.

35You know, it's funny. I mean, so I'll give you an answer that you wouldn't necessarily expect, okay? So Chief Justice Lamer was a sort of a storied person in Canadian law. Right? He was the youngest ever. He was, well, let me just say at the beginning. So he was a graduate of the University of Montreal. He then opened up a solo office practice at the corner of Sherbrooke and Park Avenue in a kind of a, and then one day walked in a defendant to a murder charge. And he, and in those days, It was very difficult to get acquittals, and he got— and he became the leading criminal law barrister of his generation in Quebec.

36He then became the youngest ever appointed Superior Court judge in Canada at age 33. And then he went from there to the Quebec Court of Appeal, the first president of the Law Reform Commission, Supreme Court of Canada Chief Justice. So he was a hugely important person. right? And he was very busy and very formal as a boss, okay? Very different from, let's say, Frank Iacobucci, Rosalie Abella, many other people, okay? But, okay, so I was never quite sure whether he even knew who I was, okay? And so, because what the way things work is that the, in, in the chief's chambers, the clerks The current year's clerks would hire the clerks for 2 years down the road, right?

37And the chief would rely on their advice and then he would meet you and that was the end of it. My father one day came to Ottawa and I asked the Chief Justice's secretary if he would agree to say hello to my father. And not only did he sit down with my father, he knew all about me and my work and he spoke with my father and I felt seen by him. And I saw, I felt a warmth in him that I hadn't seen. And so my, I guess my best memory of him is that sort of beyond that formality and properness, there was really kind of a wonderful human being. And so I feel very privileged to have worked with him.

38And he showed such kindness to my father in that day. Because, you know, I'm sure lots of people bring their parents to see their bosses, right? When you're starting out.

40But he went out of his way, and he was very generous. And, you know, he was just a, he was a big thinker who did important things. You know, the motor vehicle reference, Van Der Peet, he worked on the "Patriation" reference. He used to talk about that. And then after I left, he was the, you know, one of the leading lights behind the "Secession" reference. And so he was kind of a very important person. And, you know, The thing about the Chief is that he came from a line of Chief Justices before him. So Bora Laskin, Brian Dickson, Antonio Lamer, Beverley McLachlin, who kind of led through their reasons. They led, they were intellectual leaders, right?

41And that's how they led on the court. And so, and I saw that in action and it was a real privilege to work for him.

44So that's a good question. So it's not a straightforward answer. So I was called to the bar in 2001, and so I've been called a long time. And I say I practiced in a different way than I do now. And so I began a counsel practice, an intervention practice. I did a lot of opinion work, and then I broadened my Canadian practice to practice internationally. So I've advised in about a dozen different constitutional and peace processes. And so that took, you know, me through the first 20-odd years of my career. And then I would say around 2019, 2020, I decided, you know what, I've been doing, you know, things a certain way for a while, but if I want to make a change, this is the time to make a change.

45And so I'd say that I jumped in feet first into litigation in August 2020 when I I made a divisional court appearance on a motion that I lost. And so, and, and, and I've been working extremely intensively for the last 5 years and and, and I've been doing really nothing else but this in, in this new chapter of my practice and, and I'm working on things in a different way now, of course.

47More or less. I mean, I would say it's administrative law, constitutional litigation, and also public inquiries.

49Yeah, absolutely. So it's not, it's not all pro bono. I do, although I do a lot of pro bono work. And I work extensively with legal clinics and with NGOs, and I do lots of intervention work for them because that's very important. And it's It's important in my view that senior counsel do this type of volunteer pro bono work. It's in the best tradition of the Bar, and it's something I take very seriously. I think it's a significant part of my practice. In fact, you know, this morning I was in the Court of Appeal acting on behalf of indigent clients. And so I have— and so unlike a lot of individuals who do this work, I actually take legal aid.

50And I'm happy and proud of the fact that I do. Although I think the system is incredibly underfunded and should be better paid and so forth, I think it's important that, you know, there's a whole tradition of the bar that goes back to J.J. Robinette, where people who were appearing in the major appeals of the day were also taking work on behalf of the indigent. And I also do work obviously for paying clients. So private corporations, individuals. I do public inquiry work. A lot of my clients have been politicians. So I've acted for politicians from every major political party. And I act for public agencies and now I'm doing class action work, which I'm happy to speak about as well.

51'cause that's a new frontier for me. And so I think that gives you maybe a sense of the range of things that I do.

53No, look, so I think there always has been a public interest bar, but the Charter changed the character of the work it did, right? So before the advent of the Charter, we had, of course, the great criminal law barristers, you know, Arthur Martin. I mean, you'll know the names, right? You know, we see their names on plaques at the Court of Appeal and there's awards named after them. But don't forget about the Labour Bar, right? You know, so, and the crucible of freedom of association and freedom of expression was in labour cases. And don't forget that, you know, after the FLQ crisis and in the draft in the Emergencies Act, it was unions that were at the forefront of these battles.

54And so what later became battles around freedom of expression were in a pre-Charter era battles around secondary picketing and economic torts. And the Charter kind of shifted those. And so then after the Charter, I think that it is absolutely the case that constitutional litigation has exploded. It's also become, I think, much more heterogeneous and diverse. So there's this, the criminal, and I would say that there's, from the criminal law bar that does the work that it always used to do and then amplified by the Charter. Then there's the labour bar and there's an enormous amount of work in and around freedom of association. Then there's the immigration and refugee bar where I do, where I'm privileged to do a lot of co-counsel work.

55And I would say one of the greatest surprises of my career is that I would say in the last 5 years, I probably have spent maybe a third to 40% of my time working with counsel in those areas, and that is in the immigration refugee law bar. And that I wouldn't have predicted that, but it's been a great area of activity for me. And then you have, I would call it more social justice type work that You know, bike lanes and encampments. And there you see clinics, you see different types of barristers or litigators involved who aren't necessarily involved in the other categories of cases. And so it's a big community where different types of things are being done by different clusters of litigators who are doing— whose work doesn't always intersect, but sometimes it does.

59So it's a great question and it's something I actually think quite a bit about because I think that to a degree, I think is regrettable. I think that there have been issues in constitutional litigation where there has been polarization around the substance of a point. And then the way in which people argue about it legally depends on what their view is about the merits of it. And the, you know, I was reared on the liberal legal tradition, which was that you defend the rights of those with whom you disagree, and you think about building precedents that might favor someone whose cause you don't support because there's a larger point of principle that you're trying to establish.

60And I'll give you a very concrete example. So the Emergencies Act litigation, which I have been involved in, I, as you know, there were 4 different challenges brought to the 2022 public order of emergency declared by the federal government. I led one of those 4. We succeeded in the federal court. We have argued before the Federal Court of Appeal, waiting for the opinion. There was also a public inquiry. And that where I appeared as counsel, and I appeared as counsel for the Canadian Constitution Foundation, which is a kind of a right-of-centre conservative legal group and an extraordinary client, and I'm honoured to represent them. And the focus of our position in those cases has been on executive overreach.

61And the dangers of executive aggrandizement. And as we're looking across the border in the States at the imperial presidency and the assertion of extraordinarily broad presidential power, I think you have to be, you know, lack a sense of perspective to not think it's important to ensure, to not recognize that executives anywhere in the world, left or right, are prone to want to augment their power, and there is a shared interest of all of us who care about civil liberties and rights to check exercises of that power. And I think in the debate around the Emergencies Act, I think regrettably at times people ran together views about executive power with with their views on the political views of the protesters.

62And I think those two things are entirely separate. And so, and I'll tell you, so I'm now leading with others, a challenge to the Safe Third Country Agreement. And many of the arguments that we developed in the Emergencies Act case, we're now bringing to bear in this other case, which is from a different side, which favors a different set of social interests, which would say maybe is a left-of-center case. But the point is there's a common thread, which is about executive power, you know, checking government secrecy, force, holding governments to account. And I view the cases and other cases like it as being part of an integrated body of law. And so I, I think that's a really important point.

63I think it's important that people think more broadly in the way they used to about the importance of precedents being set and less about the politics of the individual claimants and the causes they espouse that are at stake. And so that's a long answer to your question, but I think a lot about this and I worry at times that this older tradition that we had at the bar of defending the rights of the unpopular has been eroded a bit. You know, I'll never forget that Alan Borovoy, you know, the great leader of the CCLA, defended the rights of Ernst Zündel, a Holocaust denier, and also Keegstra's rights. Right, also a Holocaust denier. And there was nothing inconsistent with him being a civil libertarian, being a Jew, having been the victim of antisemitism, and nonetheless defending freedom of expression.

64And that kind of principled approach to civil liberties, I think at times isn't as common as it should be. And I hope I'm part of a group of people who pushes against that. And I do that by taking cases across the spectrum from a broad variety of claimants representing diverse political views because I think there are issues of constitutional principle at stake that transcend the particular dispute before the court in that case.

66I mean, look, I don't want to put numbers on it. I mean, I would say that I'm not— what I want to say is that I'm not alone. And there are others who have this view. And I wish there were— and I would like to do more what I can to build the middle, to build the center, and to encourage colleagues to litigate on both sides of these issues in the broader service of liberal legalism. And checking executive power. I mean, the great threat to freedom in our era is executive overreach. And you can look around the world and see that. And I think there should be a shared common interest in checking executive overreach and in protecting freedom of expression and protecting freedom of association.

67And we need to build coalitions around these core ideas Even if we disagree on the substance of what's at stake in a case.

72I'd be happy to. So look, I think assisted suicide, it's a fantastic question and it's a terrific issue because I think the experience with medical assistance in dying, with MAiD, has been a complex one. And I think we've seen A couple of things. I think we've seen the expansion of eligibility criteria. I think we've also seen concerns emerge about people choosing MAiD because of inadequate income support. And so, and there's documented evidence of people who live with disabilities who feel they don't receive enough support from government, who ironically think it's, you know, we'll get a— it would be easier and cheaper for them because it's fully publicly funded to kind of exercise or render an undermaid.

73And that can't be right. It can't also be right that the failure to properly provide palliative care would lead people to choose MAiD. That can't be right either. And so I think it's an area of public policy where the courts opened the door, and I, but I think governments, to be fair, pushed it open even more than courts had because I think the Carter case is very narrow. And a couple of things have happened. I think the first is that in the Truchon case, as you know, in Quebec, which broadened broadened the issue to mental health, broadened the eligibility for MAiD to mental health. That was not appealed. And with the greatest amount of respect for the federal government, I think that was a huge mistake.

74And then in addition, I think that even if one accepts that MAiD should be available as an option with controls and oversight and in certain cases. You know, we haven't had enough thought and debate, at least at the beginning, around oversight and monitoring and mechanisms. And now, as you saw, before Parliament was dissolved, the previous Minister of Justice, I think Mr. Virani, just put a pause on expanding the scope of MAiD based on assessments and reviews that had been done and some second thoughts. And so I would say that although the courts opened the door, I don't think governments handled the next steps as well as they should have. And I think there were levers and tools they had available to them to shape how the law would evolve that it didn't take up.

75And so that's the way I would put that. And I say that because I think behind your question might be the use of the notwithstanding clause and whether that's—

77So one step ahead of you. And so it's something I've given a lot of thought to. You know, my views about the clause are a bit heterodox, right? And so there's one view which is that the clause is part of the Constitution. It should be used when Parliament and legislatures disagree with the courts. And there's another view which says, well, listen, if the clause is used to override decisions of the court or even preempt decisions of the court on the Charter, it'll run the Charter empty. My view is a middle ground. Which is that the override or the notwithstanding clause is part of our Charter and for very good reasons. And this is where people do need to know their history.

78The demand for the notwithstanding clause came from two camps in the, in the, in the patriation debates. One was the, the old guard defenders of British parliamentary sovereignty. So Sterling Lyon, who was the Premier of Manitoba. But then the other advocate was Allan Blakeney, the NDP premier of Saskatchewan, and it was the constitutional left that wanted the clause. And they wanted the clause because they were afraid that courts could gut labour rights under collective bargaining legislation using the Charter, and they wanted to protect those rights. And, and that, and that suspicion of judicial review on the left was born out of the 1930s in the United States and also the battles between labor and capital that were fought out in England and Canada in the courts in the late 19th and early 20th centuries.

79And so having a clause like this is not a left-right issue. It's about having a safety valve that lets pressure out of the system if there's prolonged conflict between courts and legislatures. And if you don't have a clause like this and there's prolonged conflict, the alternatives are court packing or court bashing. And neither of those is good. And so this is a good idea. My only criticism is that it's too easy to use. It can be used preemptively as opposed to after a final judgment of an appeal court. And the exhaustion of appeals to the Supreme Court. And it can also be used by a simple parliamentary majority. And I think it should be required two-thirds majority.

80But I'm not against the existence of the clause or its use. So to your point then about judges who might make mistakes, and look, judges are human beings. They're not infallible. And judges, like politicians, have limited information before them and they can't anticipate the consequences consequences of their decisions. And so having mechanisms in the system for revisiting issues, either within the courts themselves, so overruling themselves or qualifying or narrowing decisions, or giving legislatures the ability to kind of second-guess courts, that's fine. I think that actually promotes constitutional stability. But I think it shouldn't be too easy to use. And that's my concern about the clause as it stands. I don't think anyone thought it would be used in the way it's being used right now preemptively before issues reach the Supreme Court and without broad political consensus.

81And I think that's dangerous. And so we— I'd like to see something different.

83No, I think that our courts— look, you know, the law commands respect and is obeyed ultimately because people believe in its fairness and the impartiality of the institutions that administer it. And so, so every day in which judges adjudicate cases, they are contributing to the public's respect for the constitutional order. And I think in this country we have good courts and fair-minded judges who are, who take their role seriously in an impartial manner. And it is not the kind of partisan warfare that one sees, for example, the United States. And, and that's not to say that there aren't judges with different views on issues, maybe even different ideological orientations, That's to be expected, and that's fine.

84But, you know, but most of the job of a judge is not in those high-profile fraught cases. It's resolving, you know, condominium disputes or employment law matters or motions or so forth. And it just takes hard work, diligence, fair-mindedness, impartiality, and skill and intelligence. And it's not— those aren't left-right things. And what's nice about our system of justice in Canada and about our courts is that I think we get it right on those fronts, right? I think judges are hardworking, they care about the law, they care about the rules, they care about being fair-minded. And when we disagree with the outcome, we don't then turn on the courts and say, well, that guy was appointed by this party, she was appointed by that party, that's why it went this way.

85And, and that's not what's happening south of the border, as we see, right? And, and we don't want to go there. And, and I think that our system of justice is good and resilient in that way. And I think we have to keep it that way. And one of the ways we can keep it that way, if I could say so, is continuing to prioritize recruiting and appointing highly skilled lawyers who are very smart, and who understand that they are delivering a public service which is called justice and do everything they can to deliver it in an efficient and fair fashion. And I think overall the track record of Canada is a good one.

87You know, I don't think I've seen in the last 2 decades as much discussion in the bar on any issues I've seen on these rules. I— so look, I have a couple of thoughts about them. Okay. So the first is this. So a lot of my colleagues who do class action work and who do work in which oral discovery is important, have expressed, I think, valid concerns about the ability for them to learn about the case, right? Learn about the defendant's evidence and the case to meet that and the barriers to doing so that would be created by these rules. Rules. And I think, or these proposed rules, and I think they've raised serious concerns.

88And I think that there needs to be a lot of careful thought about the impact that these rules might have on those areas of practice. And what I've also found very interesting is that, for example, the personal injury bar, I'm sure you've seen this, right? It's actually lawyers on both sides who wish they're, who don't want to get rid of discovery because it actually discovery lubricates settlement. And the goal is to resolve these cases through settlement, often at a very early phase of the litigation, to not get into court. So I think that those are all very serious concerns. Let me say on the other side, though, which is that in constitutional cases, the modal form of proceeding in Ontario is the application, not the action.

89The reason that it's cheaper, it's an access to justice issue. And so the idea of doing litigation on paper where there's cross-examination on affidavits and then there's notices of examination to get production and then requests for undertakings to get more production and refusals motions. As long as we preserve that, which I think We would. Having other proceedings move in that way is fine if they're a good fit for it. And so I'm not opposed to there being more proceedings that way. So you might remember Fred Myers or Justice Myers talked about hybridizing actions and applications in this when he interviewed with you a couple of years ago, right? And what he called English style, rules where you have kind of cross-examination on a witness statement that's adopted by a witness.

90I think doing some more of that, if the rules permit that, that's not a bad thing, right? But I do think that there are some pockets of practice where serious concerns have been raised about the lack of oral discovery. And I think colleagues have been very thoughtful about this. And I I hope the committee listens to what they say seriously because I think a lot of care and time is being given into feedback. I'd love to know what you think about the rules reform, Pulat. You've been very quiet.

94Well, you know, those are very thoughtful points. I mean, I think there is a couple of footnotes I would add to what you've just said. The first footnote is that The Federation of Ontario Law Associations released a letter that I thought was very thoughtful and very concrete and again speaks from a broad idea. You know, that's an umbrella organization and under the hood are lawyers of all sorts of political orientations, you know, and who represent a lot of different practice areas. And I thought there was a lot of good thought there, actually. I was very pleased to see that. And the other thing is this. So, you know, in the area of class action work, which I've gone into and I'm building, in my experience, when you're kind of trying to tackle issues of systemic institutional wrongdoing, discovery matters, digging matters, because, you know, the affidavits coupled with the other tools we have in and around them will get you some of the way.

95I don't want to say that you can't get, you know, a lot out of them, but I don't think they will do enough. And part of the issue is this, is that defendant's counsel might not be aware of everything that is relevant. And it's through this process that they might become educated by plaintiff's counsel about what the true record is. And it's concerning to me. And so David Sterns and others have raised questions, and I think those questions need careful, thoughtful answers, and I hope they're given them soon.

97You're welcome. Pulat, it's been such a pleasure. Love the show and really delighted to have been asked on to appear with you. Thank you.