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What it’s like to plead at the Supreme Court of Canada

Maeve Haldane | 6 nov 2024

čóŽÇ°ùÌęKatie Tucker, BCL/LLB’07, and Zachary Davis, BA ‘04, BCL/LLB’09, presenting in front of the Supreme Court of Canada was nerve-wracking and exciting in equal measure. One called it “fun,” the other might not have chosen that word, but they agreed it was an honour. Tucker recalls an experienced lawyer advising, “If you’re not nervous, you’re a fool.”

Tucker and Davis, both with the firm Pape Salter Teillet, had this opportunity when the Attorney General of Quebec challenged the constitutionality of the 2019 Act respecting First Nations, Inuit and MĂ©tis children, youth and families. The federal Act provides Indigenous communities with control over their children’s welfare. Quebec said it trod on the toes of provincial jurisdiction. Tucker represented respondent Makivvik; Davis represented the intervenor Listuguj M’gmaq Government.

Pleading before Canada’s highest court is an exercise in concision. Months and months are spent carefully crafting a factum of a dozen pages, sometimes more, which must then be condensed into a 5 or 10-minute intervention.

Tucker relished the time to grapple with big questions. If a case is in front of the Supreme Court, “it’s probably not settled and is very intellectually interesting and exciting,” she says. “This case in particular raised significant constitutional and Indigenous law questions of great importance to Indigenous Peoples and the reconciliation process.”

At court, there’s plenty of pomp and ceremony – the justices are decked in mink, after all – but Davis was impressed by how quickly everyone gets down to business. The doors open, “The court!, La cour!” is announced ringingly, the justices file in, sit down, and start. There’s none of the usual throat clearing, housekeeping and chit-chat that can occur in lower courts. “You get the sense that time with the Supreme Court is very, very precious,” says Davis.

Tucker presented on the first day, thoroughly prepared on the controversial aspect of the case she’d chosen to focus. She launched into her oral argument and was interrupted by a question from a judge, “almost immediately.”

“I got about ten seconds into my carefully crafted speech, in which I had vexed over every word and BOOM! It didn’t matter at all anymore,” Tucker recalls.

“The tricky bit was trying to say what I wanted to say while answering,” she adds. Judges only ask about what they’re interested in or bothered by. “You have to take that very seriously and honour their questions. If they’re taking you off course, it’s because they feel there’s something to be answered.”

Davis had only short notes for his presentation because his intervention was happening on the second day. “For about a day and a half, as I was listening to what was going on, I was writing and rewriting until it was my turn.”

“The real challenge is whittling down to something that can be effectively said in five minutes in a way that might influence the decision,” Davis says, and being very attentive to how the argument is developing. “Because the relevant issue, by the time it’s your turn to speak, may not be what you thought it was.”

This wasn’t his first stint at the Supreme Court. In 2013 when his boss got sick, Davis had to step in to represent the Grand Council of Treaty # 3 as intervenor in Grassy Narrows First Nation v Ontario. “I got that sort of airy weak-kneed feeling. You modulate your breath, you get into it, and you’re okay!”

He recalls then Chief Justice Beverley McLachlin quickly zeroing in on him. “She was just brilliant,” he says. “If there is a weakness in the argument, one of the nine is inevitably going to point it out to you,” he learned.

This time around, Davis presented virtually. Though less nervous, he found it more difficult to engage the panel. He’s impressed by lawyers who can do so through screens from afar.

Davis likes a narrative approach. He cites the example of a litigator who was talking about modern treaties. The Crown thinks of a treaty like a divorce, an arrangement that means the parties won’t have to talk to each other again, the lawyer had argued. First Nations, instead, look at a treaty like a marriage, something to be cultivated and worked on. Davis was impressed by the impact of starting with an analogy, and returning to it at the end. “People will remember an image,” he says.

In the proceedings, Tucker loved the chance to meet lawyers representing Indigenous groups across the country. She found collegiality, shared passion, and warmth. “Just making friends! It was a real bonding experience.”

A bonus for Davis was seeing his former professor of civil law on the bench. Justice Nicholas Kasirer, BCL’85, LLB’85, was dean of the Faculty of Law from 2004 to 2009.   “I tried to think back to his teaching style, how he was as a writer, a jurist – could I speak to those qualities? I’m not sure I managed, but it allowed me to psychologize the Court a bit.”

In February 2024, in a unanimous judgment, the Supreme Court ruled that the Act respecting First Nations, Inuit and MĂ©tis children, youth and families was constitutionally valid and dismissed Quebec’s appeal. The decision was seen as a win for Indigenous self-government. “It’s an honour to represent Indigenous peoples before the Supreme Court,” Tucker says. “It was stressful, but important.”

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