Suzan Fraser

4Hello.

6And I wanted to be here, and I think it's one of the, the greatest things about the profession is that you and I could be trying to find our way around the Milton Courthouse 10 years ago, and I'm the one who's supposed to have the knowledge. I think you're the one who helped me figure out what to do because you're an articling student, so you were knowing how to, how to get things done, and that, you know, we could maintain you know, admiration for each other at a distance over the years and end up here. So I'm really, really happy to be here and to have been able to watch you build your own firm and develop this podcast.

7So thanks so much.

9You're welcome.

13Okay, well, there's a lot in there to unpack, but I think, you know, right from the get-go in law school, you're pointed in a particular direction, and there are lawyers, law firms that, you know, are sponsoring the back of t-shirts, that are taking students out to lunch, that it's like a full-court press to get who's considered to be the best and the brightest. And I certainly wouldn't have been considered the best and the brightest. I was, unbeknownst to me, very sick in law school. So I was like definitely middle of the pack. And, you know, I was fortunate to have a good set of articles to be able to sit in on a trial, for a 6-week trial.

14Had long admin hearings when I articled at Gardner Roberts, but it was pretty clear that to me, and I think to them, that I didn't want to do work that was connected to business. Business didn't really interest me. So that's a bit of a problem in law. If you think that you're going to do— I didn't want to do criminal litigation because at the time, I thought that I couldn't represent people who had offended sexually and committed sexually motivated crimes, whereas, you know, 25 years down the road, that's a big part of my practice on the mental disorder side, and it's a matter of perspective. So the people who practice social justice, do social justice work, are people who understand that the law and social policy marginalize people.

15So we talk about vulnerable people and marginalized people, but we have to understand that people are oppressed through law and social policy. So we make policy choices, the opioid crisis being one of them, to criminalize drug use and to police it rather than saying, well, how can we stop people from dying? Right, and how can we build a system that will stop people from dying? So these are law and policy choices. So somebody who practices social justice is somebody who sees that there are people who are oppressed, disadvantaged, marginalized, discriminated against, whatever, you know, there's a various— sometimes they're all packed together and sometimes it's one Typically, there's a recognition that the system doesn't work, and it's not even that it's systemic, but it's actually built in a way that advantages some people to others.

16I don't want to speak for everybody, but for me, I really did go to law school to make a difference, and it just takes a long time to figure out how to do that. And it comes from, you know, I have some advantages. I had a roommate until I was like 33. I had parents who were willing to like buy me clothes because you don't always make a lot of money. Like back when I started at Swadron Associates, I was making $38,000 a year and the people who were starting first year on Bay Street were making $58,000. So there was a $20,000 gap on what was not a, you know, on $38,000. So you know from the get-go that you're not going to be rich, that you're going to have to be smart, that you may from time to time have to rely on other people.

17So I've ended up having some good years, some, you know, where I've had long proceedings, but a lot of the time it's, you know, willing to live on less so that you can do more for other people. And, you know, there's a lot of talk about how hard lawyers work, and yes, we do work really, really hard, but a lot of people have worked a lot harder for a lot less, right? And yes, we do put in those extra 3, 4 years of education, but, you know, that's also, you know, supported partially by the state I know people take on huge debt, but we have advantages and will most likely always be ahead of the national average in terms of income.

18But it doesn't have to be $1 million a year or $2 million a year. You know, like, I spit out my coffee when there was a story about there being a $200,000 pay gap between men and women, because most social justice lawyers will never achieve $200,000 a year, right? And a lot of sole practitioners won't either. So, so you just have to like, you know, say what's important to me and, and how can I build support around me to make this happen.

21So when I started, so much of that work was funded through Legal Aid Ontario. So Legal Aid Ontario used to have civil law funding, which is now, I think, pretty much been reduced to disbursements in sexual assault cases, but it would fund novel pieces of litigation. It funded family law. It funded— so I would do test cases and I would represent people in civil actions if they didn't— and so like through funding of discoveries until about 1998, I think. So in the very early years of my practice, there was funding for civil litigation. There's also— there was also test case funding through Legal Aid Ontario to bring a test case or to represent people at coroner's inquest.

22So some of those early coroner's inquests, Legal Aid Ontario might have funded the family and they might have funded two different groups. So for example, the Queen Street Patients Council, when I represented them, that was funded through Legal Aid Ontario. So really supported through that legal aid mandate and law reform. So that's like the bigger pieces. The public inquiry system in Canada does have funding for parties withstanding or participants. So typically in one of those big proceedings, you'll have the state agencies represented. So for example, in the Goudge inquiry, you had the coroner's office was represented. There was, you know, they had their own funding. They had Dr. Smith would have been represented through CMPA, but there were other people like the Association in Defense of Wrongfully Convicted, the Criminal Lawyers Association, I represented a children's rights organization, and we applied to be recommended for funding.

23And then there's a funding then if you're granted funding, which is sort of on the, which is on the basis of not being able to participate unless you're funded, then, then you're, you're actually funded. So, you know, in 2007, when I did the Goudge Inquiry, that rate was $192 an hour. So that was, you know, pretty decent money. That rate hasn't changed. So when I did the Gillese Inquiry in 2018, the highest rate, so for 10 years plus, is $192 an hour. So that's the nitty-gritty. So there's funding, and then, you know, I do a lot of work for people who are in institutions. And everybody says, well, how do you get instructions?

24And most people are able to tell you what they want to happen with your life, with their life, right? So and, and so you support that decision-making. You are able to help them guide through. And there's challenges, you know. I think I was once told that the average person takes 7 times, either hearing something, speaking something, writing it down, or reading it before they learn it and understand it. But a person with a developmental delay takes 200 times. So that's the way it was explained to me, whether that's actually true or not, but it's certainly time, and that, that becomes constraining. So for example, a consent and capacity board hearing where somebody's right to refuse treatment or consent to treatment is at stake.

25Just take that as one example of what you might do at a consent capacity board hearing. Another example might be whether they should be detained in an involuntary— as an involuntary patient. That takes— Legal Aid's tariff of preparation will give you 10 hours. So you have 10 hours to read thousands of clinical records, meet with your client, understand their perspective, maybe seek out collateral information to help defend their position, research novel points of law if there are, you know, all of that. 10 hours preparation and then your hearing time. And then if you go over that, you can ask for what's called discretion. So you have to set out your case as to why you should be paid.

26So you get talented at, you know, I have an assistant who's really able to explain to the legal accounts officers what we've done and why it matters to the client, so that you can actually get paid. Doesn't always happen. Sometimes your accounts are cut back. It's really hard to do work within the tariff. So it's— financially, you have to be smart, and I haven't always been. I've always had an office, and I've always had an assistant, sometimes part-time. Sometimes full-time when I've been really busy. But that's a lot of money that you have to earn before you get paid. And if you're only making you know, I'm getting the top legal aid rate, which is $136 an hour.

27That hasn't changed since 2015. It takes a long time to, to actually earn money. And in a practice like this, you really need to have a safe space to go to and an assistant to help you, and even just for moral support, right? So I'm in a chambers arrangement right now, which is quite excellent although I don't get to spend a lot of time there right now.

30So it's, it's really, I think there's a great sense of injustice for people who are appearing before administrative tribunals. So largely in this area. So if you're talking about some of the mental health issues. I think largely people feel that they really can't understand administrative efficiency. So there's a great push both in the Ontario Review Board and the Consent and Capacity Board to have hearings done within 2 hours or an hour and a half. Typically, people are faced with a big report that comes from the hospital, and it's hard even to carve out more time. So it's a challenge to say, "I'm going to need more than 2 hours." There's a lot of pushback from tribunals to do that.

31So even that's a victory. But I think you have to, like, And there's a danger, I think, sometimes, you know, there were a couple hearings this year where I thought, like, am I doing more harm than good than appearing in a tribunal that didn't particularly feel good and felt like a rubber stamp? So, you know, and I think that that's the lawyer's challenge is to make sure, like, so it requires constant vigilance to, you know, get your elbows up and, you know, work those corners to be able to fend people off. So I think there's a great sense of injustice, and I think there's a great— I think that the accessibility to the Charter is a challenge, right?

32That, you know, our system in Ontario of Rule 14 applications and affidavit evidence and all of that stuff where the person, you know, I would like to see Ontario move to the Joe Harvey model where they have— in BC they had a trial, you know, where you— Carter was— the Carter case was a trial where he could call witnesses about the impact of you know, not being able to plan for the end of your life and to have medical assistance in dying. And I think that there's some things that we could do much differently here to provide better access to justice that way. But I have, you know, I have many clients who've been in the system for a very long period of time in the forensic mental health system where if they had pleaded guilty, they would be out otherwise.

33So it's really hard. Because we have this responsibility to uphold the administration of justice, right? And I think that doesn't mean that we can't be critical, but that criticism has to be— you have to, if you're going to be critical, then you have to tell it to the tribunal, right? You've got an obligation to say this process isn't fair, so We all feel that unfairness sometimes. And, you know, I think we all have our greatest day is when we go into court and we are heard, right? So when the client feels heard and the decision goes the other way, most of the time my clients are okay with that. But it's where they feel that they haven't been heard or where they, you know, they feel that there's a bias that you can't quite put your finger on, that, that becomes harder to swallow.

34And then there's just people who are a long way from justice, right? You know, when I, when I did the work before the national inquiry, like people whose family members haven't come home, and family members who haven't come home and maybe they would know where their family members were if there had been a better police investigation. And like, what does justice look like? It doesn't, you know, when the system is so, so discriminatory and where, you know, it's pretty clear now that there's— not pretty clear, like, but we've had The Truth and Reconciliation Commission saying cultural genocide, Missing and Murdered Indigenous Women and Girls saying that Canada, that these deaths have occurred as a result of a genocide.

35We now have evidence of crimes against humanity in the form of unmarked graves at residential schools. You know, I don't— I think there's a great deal of us living with a tremendous sense of injustice. So you can be defeated by that or you can go on. And you kind of have to choose what you're going to do. For people in the mental health system, a lot of times they do better if they submit, right? If they just say, okay, just like, whatever, I'll take your medication, I'll follow your rules, I'll do whatever you say. And the people who fight the most end up being in the system a lot longer, and people who've, you know, retained their internal dignity and advocated for their rights and never succumbed end up being in the system for a long time, and that's really, really difficult.

36So being a social justice lawyer is living with a lot of defeats, living with a lot of unease, and finding a way to go forward.

38So the first trial I did was when I was an articling student, which was before Justice Feldman, and she— I was a— it was a 6-week trial that seemed like a 3— turned into a 3-month trial, and it was about less than truckload freight. So there was a plan to deal with less than truckload freight. Really kind of interesting now considering where we're at with Amazon and how parcels get delivered and everything. But it was great because there was tons of, you know, there were expert evidence, forensic accountants, damages claims, challenges to witnesses. And you got to see, you know, you were preparing all these memos in advance for the lawyer, and then you got to see why the lawyer had done all this work in advance, right?

39So it wasn't about the issue may never arise, but if it did, you were ready. So that was great preparation for me. And then when I did a very long case that went on for months, and it was— I'm not going to talk about the details of the case because the client would like to be forgotten. So, but this case involved, you know, people on the other side who were represented by LawPro and all kinds of things. And so it was, first of all, a lesson in the rules of civil procedure. I mean, we really hadn't It was complicated and there were challenges, and I think that, you know, we could have come about it in a different way in retrospect, but it was, you know, watching sophisticated counsel do a trial.

40So it was excellent. There were 3 parties. But where I learned the most is in the coroner's inquest, because the coroner's inquest— the first inquest I did, the inquest into the death of Edmund Yu— there were 10 counsel. So lawyers for the police, Frank Marrocco was there, now retired Associate Chief Justice Marrocco was there sitting beside me representing the Chief of Police of Toronto. Julian Falconer, Richard Macklin, Louis Sokolov, Janice Blackburn was there for the Ministry of Health. So tons of excellent lawyers, and the trials that you do, I think, are really only different— it's really about evidentiary standard, right? So in trials, there's a more formal application of the rules of evidence. In, in a coroner's inquest and in public inquiries and administrative tribunals, those rules are relaxed.

41So, so you're, you're not always worried about tripping over the rules, but at the same time, the rules of evidence matter because you want to make objections about the quality of evidence, things like that. So the other trials that I did, the police accountability trials I did a couple of trials where different— one was a witness protection trial, so the person had been promised witness protection, and she had been a witness at the David Milgaard Supreme Court of Canada hearings, and she had been promised witness protection which Chief Justice Lamer phrase is police witness protection, and then there was a debate about what that looked like, and so she ultimately sued. We lost that trial, but it was all again very, very interesting.

42One case that I still can't fathom that I lost is a case where a woman had been detained in— she was in a police holding cell and she had faked a suicide attempt, and so when the police officers responded, they took her clothing and they shackled her to the police cell. And it was a mixed result, and then there was an appeal to the divisional court that was done by somebody anyway. Like, sometimes— and I just think that case would be decided differently today. So we've benefited so much, you know, what's changed dramatically for me in the last 25 years is that I think there's an acceptance now that police are not always acting appropriately.

43We have seen the evidence of that plain and simple in the last year. I mean, I didn't watch the video of George Floyd, but, you know, people witnessed a murder. People woke up one morning, turned on their phones, and witnessed a murder. And, you know, that's going to take a toll on everybody, especially people who are racialized and have been the experience of police brutality or oppression. But I don't think that people understand that 25 years ago, to call out police conduct, you would have been, you know, you were really sidelined for doing that. So Barry did some other cases. So some of those I did on my own. There was another police witness protection case But slowly, it was just such an uphill battle, and the costs were really escalating, and I wasn't winning.

44So I just thought, like, this is not— I feel like I'm doing a great job, but I'm not winning. And is it— do I— you know, somebody else maybe can win. But it's not me, and I'm not going to take these clients down this road that feels like it's an up where the playing field wasn't quite level. So now, like, now I think a lot of those cases maybe would settle. Maybe I would have pushed in some of those cases. Maybe you can push a bit harder for settlement. You know, I was very much of the view that justice would prevail, and now I'm much more cautious about, you know, how to get a result.

45And so a lot of advocacy is about what's the, you know, outside of the courtroom, what's the result that we can achieve, but that doesn't always advance the law, right? So all these, all these things getting settled in the background don't necessarily advance the law, and that's the challenge. And I think, you know, as proceedings settle and we don't have access to trials, I think we risk the law not developing.

47I think it's the latter. I do. I think that judges are shaped by their experiences, so what falls within the range of experience— I mean, it's why diversity on the bench is important, not all kinds of diversity. It's why it's important to have criminal lawyers, defense lawyers appointed to the bench. It's why, you know, it's important for people from different communities, different frames of being to say, you know, our common experience isn't this Anglo, WASPy, like it's a— there's a broader range of human experience that I think the more that the bench becomes diverse and that the more that the common experiences, you know, we just share share so much information about what's happening to communities now.

48It's— you have direct evidence on a daily basis about what is prevalent and what's not prevalent, and that does shape the thinking, I think. So, you know, I always think that in order to make— like, when you look at where change really happened, so for example, same-sex marriage, By the time that case was decided, there was a critical mass in the community of people being out, of family members having somebody in their family who was from the LGBTQ community. And so it was like, of course my child should get married. And it had become within the understanding of the judiciary that this was about humanity and dignity. That it sort of became obvious that that case should be decided that way.

49You know, look, 10 years before that, where people were talking about putting same-sex marriage into law through the legislature, and that wasn't— there was way more blowback to it. So things change, but they change because, like, you've got the masses, you've got the media, and then you've got the message. So, but you really, like, in order for that message to carry to change the law, the public has to come along with it, which I think is why when people have novel cases that it is important for the media to take those up, to examine them, for people to be able to, like, for that to become part of the public discourse so that the judiciary, you know, they read the Globe and Mail, They read the Toronto Star, they watch the news, like, what are people talking about?

50And it's important that, you know, so I— so when I say that case would be decided differently, I think maybe that's too optimistic. But what I, I think would be different is that there would be more understanding that when police act, it's not always for benevolent means, it's not always to serve and protect, and that for some people that that's It actually seems to be quite the opposite, right?

54So I think that, you know, it's not— I don't really know how the sausage gets made, right? So I'm, you know, I'm interested in reading Justice Sharpe's book because I think it provides us a really good tool for, you know, for somebody like Justice Sharpe who was— he wrote this book called Good Judgment that came out this year or last year, and I'll lend it to you if you want it, but really talks about trying to stay within decided law and trying to be really disciplined And I think most judges do want to say that the law is neutral, right, and that we are applying facts to a neutral law. So if you're trying to move the needle, and I think for most cases that's how most judges would frame it.

55So the lessons that were taught to me were that if your client's experience is outside of the norm of a judicial experience, right? So, you know, for example, if I was doing a case about you, okay, what's it— what is it like for a person who was born in Uzbekistan, who lived— and I only know this because I watched it when Neha turned the tables on you, which I didn't know about when I said I offered to turn the tables on you. Anyway, so I watched her interview And so what's that experience like, right? So your job as an advocate is to explain and to educate what the experience is. So you can't just do it by saying, you know, police are— this is, you know, police are bad.

56So you actually have to have— so sometimes it might be like getting a criminologist to talk about racial profiling and to talk about those experiences and that You know, if you want to make a case, so it's about sort of trying to figure out how to build some education in. Sonia Lawrence, who's a— Dr. Lawrence, who's a prof at Osgoode, has written about judicial diversity, and her argument, I'm not going to do justice to it, but really is that, like, the more people who are— it's almost like going to a party, like, the more people that you meet at a party, the more you realize how like different people are in this world, right?

57Just what you're doing with your podcast here is all these different areas of practice that people don't know about, and so that expands our notion of the world. So it's not necessarily— it may not necessarily be the judge bringing their own personal experience, like especially from somebody who's from a racialized community, but it may be that when there's a judicial mix that those— that expands the thinking. So in terms of teaching young advocates, I think always educating, always like for me it's always having the panel and especially for people who are suffering in institutions and who have been you know, sidelined or not making progress, to have the adjudicators understand the humanity of the situation.

58Because when you have a client who is the subject of any system, that's one level of dehumanization. They're already a subject of something, and so your job is to humanize. And if you can know your client and humanize your client, understand that experience, then you have to translate that for the judge. And so if you're in a case where you think, you know, the judge isn't going to have a good understanding of what it's like, your job is to paint that picture. And that's what we are, we're storytellers, right? So that's the advocate's challenge, I think, is to tell that story and to paint that picture and to bring as much common humanity and understanding so that their client's perspective is well understood.

59And it's not always easy.

64I was born in Trois-Rivières.

66Well, my father I am. I was born there and I lived there for a while. And my family has spent quite a bit of time there in my upbringing. My dad was a civil engineer in what I call the golden age of civil engineering. So he built— there's a bridge in Trois-Rivières, if you haven't been over it, it's quite spectacular. It's a 2-mile bridge over the St. Lawrence River. And, you know, when you talk about hard jobs, when people built that bridge, they were working in compressed air under the icy St. Lawrence, and there was a collapse and several men died. Luckily, my father was not one of them. And so we lived there.

67My mom learned French. She raised my— I had an older sister at the time, but we moved around quite a bit. So we moved from there to my dad building a bridge in Ottawa. To then there was another place when I was 4 and 5, we lived in Welland, Ontario. So my dad was working on the East Main Tunnel, which is a tunnel that goes under the, the Welland Canal. So prior to that, there'd been a series of lift bridges, and this tunnel was going to replace one of the lift bridges. So that's a pretty cool thing to be able to walk under river or a canal when you're 5. Like, my— so my dad would always take us to the job site, and, you know, I can almost smell the concrete.

68And then we moved when I was entering grade 1. We moved to Thornhill, and I lived there until I went to university. So pretty cushy. And my mom started teaching when I was in grade 3, so it became a two-income family, which meant that we could take a vacation to Quebec and go skiing, which was pretty cool. And it was a pretty nice existence, you know. My parents don't live there anymore. And then I went to Hamilton for university, which I, you know, like, it was love at first sight when I saw the McMaster campus. And then I stayed there for 5 years because I did 1 year full-time student politics, and then I went to Western.

69And it was like, that was a really hard— going to law school was really hard, like finding your voice in the law and like a place where you belong, I think it's really hard. And You know, early '90s, there was a huge recession. They called it the Great Recession, you know, biggest recession since the Great Depression, almost a depression. So you know, I was lucky to have a good articling job, and I was lucky to get great experience there, but there weren't a lot of jobs when I graduated. So I was happy to connect with Swadrons who I knew Marshall from high school, so my privilege definitely allowed me to get a connection there, you know, and it just kind of shows you that the advantage that people who have been settled here for a long time have.

70So that's how I got to where I'm at. But really, like, in terms of influences, I had lots of family influences. My granny was an Irish immigrant and had witnessed a lot of police brutality, so she she instilled in me that, you know, don't always believe what you hear the first time, and there's two sides to a story. And police aren't always angels. So that kind of stuck with me, like having her recount that is— still stays with me. And then and then my mom was always you know, like in the way that a white woman does in the '70s there were certain foods that we couldn't buy because they didn't pay women equal wages.

71Right, so there's— and my father, because he's an engineer, you know, he takes his social responsibility very seriously in terms of his obligation to protect the public. He's now retired, now what? But watching him and the care that he took and the understanding and watching somebody think in a different way. So he's You know, he closes his eyes and he can turn an object in his head and see how it's all going to work, right? So just a different way of thinking. And so that's where I came from, born in Trois-Rivières and then moving on to, you know, that's pretty much as close to Toronto as you can get without being in Toronto.

73Thanks so much for having me. It's really a pleasure to be here with you and to be able to answer some questions and to see you and and wish you well coming out of all of this, and I hope that you keep going with the podcast because I think it's great.