On this episode of Friend Who Argue, we’re sharing Part 1 of our behind-the-scenes look at the work of The Advocates’ Society’s (TAS) Modern Advocacy Task Force (MATF) and its final report, the Right to be Heard: The Future of Advocacy in Canada. Task Force member Alex Shelley interviews TAS president Deborah E. Palter and TAS Director and MATF Chair Peter Osborne about how the report was conceived, researched and drafted. Listen to Part 2 for a discussion about the findings of the report.
Download a copy of the Task Force’s final report here: digital version / print-friendly version.
Alexandra Shelley is a senior associate at Torys LLP. Her practice focuses on litigation and dispute resolution in a variety of areas, including corporate/commercial litigation, securities, construction and real estate.
Deborah E. Palter is a partner at Thornton Grout Finnigan LLP and President of The Advocates' Society. She is recognized as a leading advocate with a broad commercial litigation practice. She regularly acts for individuals, corporations and financial institutions providing creative advice and strategies for litigating and resolving complicated business disputes.
Peter Osborne is a partner at Lenczner Slaght LLP and sits on the TAS Board of Directors. He is one of Canada’s leading trial and appellate counsel and a fellow of the American College of Trial Lawyers. His advocacy practice includes securities matters, commercial disputes, insolvency and restructuring cases, class actions, governance issues and advice. Peter is a regular instructor for CLE programs of The Advocates' Society.
Land Acknowledgement
The Advocates’ Society acknowledges that our offices, located in Toronto, are on the customary and traditional lands of the Mississaugas of the Credit, the Haudenosaunee, the Anishinabek, the Huron-Wendat and now home to many First Nations, Inuit, and Metis peoples. We acknowledge current treaty holders, the Mississaugas of the Credit and honour their long history of welcoming many nations to this territory.
While The Advocates’ Society is based in Toronto, we are a national organization with Directors and members located across Canada in the treaty and traditional territories of many Indigenous Peoples. We encourage our members to reflect upon their relationships with the Indigenous Peoples in these territories, and the history of the land on which they live and work.
We acknowledge the devastating impacts of colonization, including the history of residential schools, for many Indigenous peoples, families, and communities and commit to fostering diversity, equity, and inclusiveness in an informed legal profession in Canada and within The Advocates’ Society.
On this episode of Friend Who Argue, we’re sharing Part 1 of our behind-the-scenes look at the work of The Advocates’ Society’s (TAS) Modern Advocacy Task Force (MATF) and its final report, the Right to be Heard: The Future of Advocacy in Canada. Task Force member Alex Shelley interviews TAS president Deborah E. Palter and TAS Director and MATF Chair Peter Osborne about how the report was conceived, researched and drafted. Listen to Part 2 for a discussion about the findings of the report.
Download a copy of the Task Force’s final report here: digital version / print-friendly version.
Alexandra Shelley is a senior associate at Torys LLP. Her practice focuses on litigation and dispute resolution in a variety of areas, including corporate/commercial litigation, securities, construction and real estate.
Deborah E. Palter is a partner at Thornton Grout Finnigan LLP and President of The Advocates' Society. She is recognized as a leading advocate with a broad commercial litigation practice. She regularly acts for individuals, corporations and financial institutions providing creative advice and strategies for litigating and resolving complicated business disputes.
Peter Osborne is a partner at Lenczner Slaght LLP and sits on the TAS Board of Directors. He is one of Canada’s leading trial and appellate counsel and a fellow of the American College of Trial Lawyers. His advocacy practice includes securities matters, commercial disputes, insolvency and restructuring cases, class actions, governance issues and advice. Peter is a regular instructor for CLE programs of The Advocates' Society.
Land Acknowledgement
The Advocates’ Society acknowledges that our offices, located in Toronto, are on the customary and traditional lands of the Mississaugas of the Credit, the Haudenosaunee, the Anishinabek, the Huron-Wendat and now home to many First Nations, Inuit, and Metis peoples. We acknowledge current treaty holders, the Mississaugas of the Credit and honour their long history of welcoming many nations to this territory.
While The Advocates’ Society is based in Toronto, we are a national organization with Directors and members located across Canada in the treaty and traditional territories of many Indigenous Peoples. We encourage our members to reflect upon their relationships with the Indigenous Peoples in these territories, and the history of the land on which they live and work.
We acknowledge the devastating impacts of colonization, including the history of residential schools, for many Indigenous peoples, families, and communities and commit to fostering diversity, equity, and inclusiveness in an informed legal profession in Canada and within The Advocates’ Society.
Welcome to Friends Who Argue a podcast from The Advocate Society.
Speaker 2:Each episode will bring you conversations with advocates across all areas of litigation who share their stories, insights, tips, and tricks from their journeys. As advocates,
Speaker 1:We hope you'll find this podcast informative, inspiring, and most of all entertaining, and that you'll subscribe to our podcast on iTunes to stay up to date on the latest episodes.
Speaker 3:Hello, listeners. I am Alexandra Shelley Tory's, l l p, and I am your host for this episode of Friends Who Argue. I'm delighted to be joined today by Peter Osborne and Deborah Polter. Peter is a partner at Lensner Slant. He is one of Canada's leading trial and appellate council. He's a fellow of the American College of Trial Lawyers and a Director of the Advocates Society. Peter was the chair of the Advocate Society's Modern Advocacy Task force or matte that released after almost 18 months of research and consultation, its final report in 2021. Welcome Peter. Welcome Deb. Thank you for joining us at Friends Who Argue
Speaker 4:It's a pleasure to be here.
Speaker 5:Thanks so much for having us, Alex.
Speaker 3:So I thought we could start, uh, for the benefit of our listeners who may not be familiar with the modern advocacy tasks forces Report, um, with a brief synopsis of the right to be heard, the future of advocacy in Canada. Could we kick it off there today,
Speaker 4:Phil? The report essentially examines and considers the future of oral advocacy in the Canadian justice system, and it makes recommendations on the role of oral advocacy and on the most appropriate modes of hearing. In a world where optimal use of both remote and in-person hearings is possible, we have all, uh, experienced and demonstrated over the past 22 months or so that the justice system can work in a largely remote environment. Uh, and with the benefit of that experience and knowledge, the report is intended to help us answer questions about what practices and protocols should be implemented on a permanent basis and what, if any aspect of in-person proceedings should remain, uh, and why.
Speaker 3:And we will get to some of that, uh, later today and also in our second edition of this episode. Um, but you've sort of taken us to where the report ended up, and I wanna jump back to the beginning to talk about sort of what was conceived at the outset. So maybe, uh, we could hear a bit about what the mandate or goals of the task force were at the outset.
Speaker 5:Sure. Let me tackle that one, Alex. It seems like that was so long ago now. Um, and actually the task force was established by the Advocate Society, uh, before the Covid 19 pandemic. It was intended to look really at one fundamental or bottom line issue. What's the role, if any, for oral advocacy in the adjudication of civil and criminal disputes? And, uh, obviously the work was radically accelerated by the pandemic, but the task force was struck to try to deal with that issue, which the Advocate Society thought was a real live issue, even even pre pandemic. And, and we set about to try to do that by putting together a task force comprised of members from the Advocate Society or Taz, t a s, as we call it, uh, practicing in Civil Criminal Family bars, uh, with representation from all levels and seniority across the country. I I should say that it was specifically organized. We tried anyway to include and involve more junior members of the bar. We really wanted to strive to try to get a, a mix of experience, um, but also with fresh thinking and try to maximize the diversity of, uh, of the level and type of experience for the task force. And then the working Task force itself was supported by an advisory group comprised of not only distinguished, but from our perspective anyway, and much more important factor, highly experienced judges and senior counsel from right across Canada. Uh, the advisory group included numerous former Chief Justice chief justices, excuse me, as well as appellate court and trial court judges and counsel from all levels of court, all types of court, family, civil, criminal in all regions right across the country.
Speaker 3:And I, I know that you attempted to include more junior members of, uh, the bar because I had the benefit of being on the task force, which was a, a great experience for me. Um, I wanna go back to something Peter had just mentioned, which is that the task force actually had a genesis prior to the onset of the Covid 19 pandemic. And he mentioned that accelerated, uh, the work of the taskforce. But I wondered if you could elaborate a bit on how the mandate of the taskforce actually changed to reflect the lived reality of virtual litigation.
Speaker 4:Uh, yeah. So the pandemic dramatically accelerated the adoption of technology, of course, and with it significant improvement in video conferencing platforms and, and electronic document filing. Um, we know we can conduct complex document intensive hearings and trials by video conference, and that reality provides options to litigants not, not realistically contemplated two years ago at this time. So in the context of the pandemic, the mandate of the task force adjusted con to consider not just the rule of oral advocacy generally, but the role of oral advocacy in the context of both remote and in-person hearings. So, you know, some of the questions that we asked ourselves became refined, like, is oral advocacy necessary? And even if the answer to that is yes, must it take place in person and why? And what is the objective that that is being furthered? So the pandemic certainly refined our, our thinking and the questions that we asked ourselves.
Speaker 3:And so, um, to connect the dots then between the mandate and the mandate changing and evolving because of the onset of the Covid 19 pandemic, and then the actual output at the end, which was the report itself. What was the process from, you know, the task force being struck in the spring of 2020 and then the ultimate publication of the report in the spring of 2021?
Speaker 5:Good question, Alex. Uh, uh, I can start by saying it was a much bigger and more complex process than any of us, uh, envisioned. When we naively agreed to get involved in this project, it sounded like a fun, uh, a fun thing to do at the time. And it was a fun thing. Um, it was just a massive undertaking. So the, the truth is, the task force was well aware from the outset that whatever the results of our work and whatever our recommendations, it would be criticized and evaluated, which is a good thing. But we knew it would be under incredible scrutiny. Um, as you and Deb both know, of course, and, and I bet it will not be a surprise to many if, if any of our listeners, there's a, there's a broad consensus that the current system is fundamentally broken and in need of reform, but that's about where the consensus ends. Um, and there is significant debate about what should be done. So while our task force looked at sort of on the heels of all that's been written and spoken about of the vanishing trial and sort of similar thoughts, uh, is there a role in, in the system for all advocacy? And by that I mean, can we afford, uh, a system that affords a right to oral advocacy and does it make a difference, uh, in the end? In other words, qualitatively is, is the justice system better served? Are the decisions better? Uh, is the process fair and what's it mean? So how did that get accelerated? Well, all of the things that we thought were such fundamental changes a couple of years ago now seem so ordinary course. And guess what? It is possible to file electronic documents. Uh, it is possible to file electronic affidavits without an original signature, and it is possible to have a really effective hearing without trundling over to Osgood Hall in January. So what we wanted to do was come up with a set of recommendations, again, knowing they'd be criticized, but do so on the basis that the groundwork had been done in advance so that the recommendations, whatever they might be, were absolutely founded in thorough research, broad consultation, and to the extent data existed. And we'll come back to that later, some analysis of those data. So let's not just make some recommendations, but let's make some recommendations in a way that they can hopefully enjoy some greater credibility because they stand on the foundation of an immense amount of work and grassroots input.
Speaker 3:Peter, you mentioned research, consultation and data. How do you take such a large task force with such a big mandate, um, and make sure you're all rowing in the same direction to gather the necessary evidence for the report?
Speaker 5:If only I knew then what I know now,<laugh>. Um, it's, it's fair enough. We, we realized the, the, the, the size of the task in front of us. So one of the first things we did was divide ourselves into working groups in some com subcommittees. Um, we began with an examination of the history and cultural origins of oral advocacy through the lens of common law, civil law, obviously, particularly with an nod to Quebec and also our Canadian indigenous traditions. Um, we wanted to look at frankly, whether there was a right to an oral hearing, a phrase we all use so often, or really whether it was a tradition or a convention, and why, uh, there came to be, uh, a thinking that there is or should be a right to a oral hearing. And then we wanted to broaden our insular legal thinking horizons a little bit and look beyond our own backdoor to other disciplines like psychology, education, pedagogy. Consider how people learn and absorb information. How do we really process new thoughts, new ideas? We hear things like people are visual learners or things like that. But we wanted to look outside the law and outside the four corners of our jurisprudence and say, all right, how are people persuaded and how do they learn? And then we wanted to have a survey as sort of a ground, uh, groundwork or ground basis of approaches to modes of hearing across Canada and select other jurisdictions. In a perfect world, if we had had limited time, we'd look at every major jurisdiction in the world. We focused on those we thought were most relevant to our systems of justice, particularly the United Kingdom and the United States. Uh, and, and look at, uh, how hearings are conducted in jurisdictions across Canada and in different courts, and why that is. And then finally, we tried to first obtain and then consolidate input from literally hundreds and hundreds of stakeholders across Canada through an extensive, uh, consultation process, uh, and build all that together.
Speaker 3:Do you have a sense, I'm, I'm gonna put you on the spot here, but do you have a sense of how many people you reached in that consultation process? Are we talking hundreds? Are we talking thousands?
Speaker 5:So, um, I can tell you it's a, it's about a thousand. Alex. Uh, it ended up being, uh, uh, a lot broader, which is, is a good thing than we had anticipated, really just being constrained by resources and time. And, and Deb, I think we'll talk about this in a, in a few minutes, but, um, between our town halls at the one end and the symposium, which we conducted, and we'll talk about all of those, um, we were frankly delighted and surprised in a good way with the uptake, um, and the, and the interest in the work of the task course. And it really occurred to us that we'd struck a nerve, uh, with people right across the country in terms of their wanting to participate in the discussion.
Speaker 3:I'm surprised at you were surprised, Peter, given how much lawyers like to share their views, but<laugh>, um, a a further question to that though, when you're talking about reaching such a broad group of people, you know, maybe up to a thousand or over a thousand, how do you ensure diversity of that group of people to make sure that you're not getting sort of a single viewpoint, but many different and diverse perspectives?
Speaker 5:It's a really good question, and, and certainly there's no, there's no pretense that the, uh, that the report or the, or the methodology were perfect for sure. But what we tried to do, as they say, was first of all, um, have input from, from both top down thought leaders and, and in things like that, I'm thinking of the symposium we we conducted in September, 2021, and we'll come to that. And also grassroots, uh, thinking right on up. So, uh, things like the town halls where we tried to provide, um, a forum or actually several forum right across the country for input without any preconditions, um, a any structured discussion, really just to try to get, uh, an open and dynamic conversation flowing about things we hadn't thought about. Um, we're conscious of the fact that advocates, um, have as many would say, a vested interest in the system. I might describe it as a, as a duty to the court and to the system to try to make it better. But there's no question that they're interested stakeholders and we're conscious of, of all of the inherent biases that might bring with it. So how do you get individuals? How do you get different groups? How do you get input from the judiciary? How do you get input from, in some ways the hardest group to, to get input from in a, in a really cohesive, comprehensive way, self-represented litigants, which in some areas, particularly family and parts of the criminal law system are so overrepresented, how do we get input from all of those groups as well? So we tried to, uh, canvas umbrella groups, uh, as well as individuals, uh, and, uh, as we'll come to it at the end as well. We're very conscious of the fact that this is, uh, I was gonna say a work in progress even that perhaps overstates it. And it's maybe more, more accurately described as a starting point for the conversation and the dialogue. Um, but we learned lots as we'll as we'll come to, uh, in our discussion, I'm hoping a little bit later as well. But the idea was to, to speak with individuals and groups across the country, all areas, and really challenge ourselves in terms of our own inherent biases we brought to the table.
Speaker 3:It certainly sounds, um, like a massive undertaking, and I'm excited that we have two episodes to discuss all of all of what was discovered. Uh, Peter had mentioned a symposium, which certainly sounds impressive. I was wondering, Deb, if you could tell us a bit more about that symposium, sort of what was the nature of it, who attended?
Speaker 4:Sure. So, um, the symposium took place actually in late September, 2020, so about six months into the, the pandemic. And the purpose was to bring together thought leaders from around the world for presentations and panel discussions and input from different disciplines. That of course, included law, but also included education and psychology, indigenous traditions and literature, uh, among others. And, uh, in terms of who attended, it was free to attend, uh, for everyone. And it was open to both Advocate Society members and non advocate society members alike. So it was intended to capture, you know, a really broad, uh, audience.
Speaker 3:And what sort of presentations, uh, were received at the symposium, you know, what did people walk away with at the end of the day having learned?
Speaker 4:Uh, well, again, uh, pretty broad. So the presentations included an empirical analysis of the impact of oral advocacy in the United States, the oral tradition in indigenous dispute resolution in Canada. Uh, it looked at the impact of remote hearings on access to justice. It included things like, uh, human psychology elements and impacts on live versus written hearings. You know, for example, some, some fundamental questions like how are humans persuaded of an idea? Um, you know, and, and of course it also included prospectus from the judiciary presiding over, over different modes of hearing.
Speaker 3:And were there, you know, that's a lot of disciplines to cover and, and a lot of content. But did you, uh, leave that symposium with some themes or comment takeaways that you could use the report? Or were you left with a bunch more questions that had to be answered?
Speaker 4:Well, for sure, war ques more questions that had to be answered, but in, but in terms of common themes, sure. There, there were common themes that emerged the importance of an open and transparent court process, uh, access to justice considerations, uh, proportionality principles. And, you know, the idea that there is a role for oral in-person advocacy in our justice system. Uh, but that role must be combined with the need to embrace the advantages of technology in the new, uh, world. Uh, we hope to find ourselves<laugh><laugh>. Um, and, and look, we came out of that symposium with a lot to think about and study in terms of the virtues of both in-person and remote advocacy, uh, and the aspects of both at ought to be preserved and, and refined going forward.
Speaker 3:Certainly a major input in the road along the way to the report. Peter, I believe you also had mentioned that there were, in the consultation process there, town halls, and I must say the concept of town halls sounds labor intensive. Um, I'm picturing a road show of sorts, um, but I, I'm wondering why it was important to the Advocate Society and to the task force to host these town halls, despite it perhaps being a more resource intensive means of collecting perspectives as compared to say, a survey
Speaker 5:<laugh>, well, you're, you're, you're bang on Alex, and it was, uh, a roadshow of sorts, given the pandemic circumstances we were in. It was a virtual road show, unfortunately, because it would've been a lot of fun to travel the country with you and Deb and the other members of the task force, um, and get the, uh, get the inputs directly, but you're, you're bang on. And it was part of the consultation process. So in addition to this symposium that Deb mentioned, we conducted, uh, these town halls. We had seven of them in total across the country. The idea being to, to make sure, frankly, that we were not Ontario centric, we were not centric to any specific area. And to hear about local and regional issues from across the country that are different, um, as we all know, if you ask anyone, uh, who's a stakeholder from any perspective in the justice system about some of the biggest access to justice issues, for example, or gating issues, they're different in Newfoundland than they are in Vancouver, than they are in Dawson City. And so the idea of the town halls was to have local judiciary. And we had, uh, involvement from, I think, and Deb will remember this as well, chief justices from virtually every province, or at least region right across the country, and then phenomenal uptake from local council members of the bar, um, right across the, uh, the country. And, uh, we had very loosely structured questions, um, but really they were just, uh, there to kickstart the discussion, Alex, and get new, um, grassroots ideas from everybody, uh, who was participating in the town halls. And then I guess to, just to round out the consultation process, the task force conducted one-on-one interviews with a diverse range of stakeholders across the Canada Council, judiciary, retired judiciary, umbrella groups, legal aid, uh, children's aid societies, um, et cetera, to try to get some more in-depth thoughts. And, uh, we also sent a survey out, uh, through the Advocate Society to all its members right across the country
Speaker 3:In respect of the town halls. I, Peter, you had mentioned, um, they were virtual and in some ways I expect that that actually may have opened it up to a, a greater audience. Did you, did you see that, did you see, you know, they were regional, but did you see participation, um, outside of this specific location of those town halls? And, and maybe Deb that's something you were gonna speak to anyway?
Speaker 4:Uh, yeah, no, for, for sure. So the town halls, uh, like the symposium were, were open to all. Um, and I do wanna add, we were grateful to various regional law associations who were able to share the town hall invitations and virtual meeting links broadly with, with their networks. And, um, the benefit of the virtual town halls is that, um, as Peter was saying, uh, we could recognize, you know, we recognize that different communities in different regions may have different challenges, but at the same time, because, uh, everyone was free to join any town hall, it meant that, you know, for example, I listened in on, on the town halls in Alberta and Thunder Bay, um, even though I, I don't practice, uh, uh, there, um, and, uh, we felt it was a way to really engage with the profession and those affected by the justice system in a broad and meaningful way. And it was a real, uh, advantage to be able to conduct those town halls on a virtual platform, allowing for people to attend and engage without regard to location. It gave us a chance to really hear each other out and connect with one another right across the country.
Speaker 3:And so, while we may have missed the sites of, you know, Eastern and Western Canada, we got the benefit of more voices. And so perhaps a virtual town hall was, was really the right way in the end. Mm-hmm.<affirmative>. Um, so following sort of the fall 2020 symposium and then the series of town halls that happened, I'm sure you're left with a lot of input in terms of opinions, but what do you do then from a, a research and analysis standpoint to conduct research and collect research that either, you know, tests those opinions or supports those opinions in a way that is meaningful to the ultimate report?
Speaker 5:Great question, Alex. So what we tried to do was marry up the, the information we were getting from the, the raw data inputs like the symposium and the town halls with, uh, the more historical or doctrinal work coming from and emanating out of our four subcommittees that I mentioned a few minutes ago. So we tried to synthesize, synthesize our history writing and jurisprudence subcommittee, uh, which was a, a mammoth undertaking as well. It's, it's, uh, you know, I think back to our article in our first year when a senior lawyer at the firm would, would ask you for a crazy, uh, memo on something like, tell me everything you can find about contract. So you can imagine trying to research, tell me everything you can find about oral hearings from 10 66 up to the present. It's a, it's a huge task, but it, as I mentioned, we were trying to synthesize that as against the experience people referenced in the town halls, for example, to find out how the two related together and what an oral hearing means in our history and in, in our law. And the indigenous perspective subcommittee was a, was a huge part of our task force as you and devil both remember. Um, truth be told, I'm not sure, as I think back, whether it was originally intended when we first conceived of the task force that indigenous perspectives would be a separate subcommittee. But what was interesting was it became very clear to all of us on the task force right up front that it absolutely that level of attention and work, which, which it certainly got. And we wanted to try to consider and build on the incredibly rich oral learning and storytelling in our indigenous communities, including how morality informs dispute resolution within the indigenous communities, build on those concepts, those traditions and those principles, and marry them up to our, our existing justice system principles and, and relevant factors to see what we could do better. And then, as I mentioned, look at other disciplines and perspectives. Not the most exciting title for a subcommittee, but as I say, the idea idea really was to get us to think outside the box and get lawyers to look outside their usual habitat and draw on those different disciplines. Um, and then finally, in the jurisdictional subcommittee, try to drill down on the, the myriad hearings now that do not involve an oral hearing or oral advocacy element, um, not just to catalog them, but to try to understand why. So the obvious examples would be a leave to appeal motion or perhaps a cost disposition. Uh, we all accept today that neither of those disputes or steps in a dispute require or typically have the right to an oral hearing. Uh, so why is that because each has had a hearing on the merits typically somewhere earlier in the process, or is there some other reason, and what can we take and draw from that to see if those same principles would apply more broadly?
Speaker 3:I think it's clear, um, to, to me, and I think our readers, if they read the report, that certainly trying to answer the question, you know, about the history to the right of an oral hearing was a mammoth undertaking. If you look at the size of that chapter alone tells you how much effort went into trying to answer that question. Um, I actually participated on the jurisdictional scan committee, and it was, it was an undertaking because we were trying to answer the question about, you know, several provinces and territories and also, um, international jurisdictions that we thought were relevant to Canada, what they had been doing pre pandemic, and then what were they were doing in the midst of a pandemic. And as we did the research, it was constantly evolving. You know, things were going to paper that had been oral, and so we had this massive Google document, and the inputs were always changing at the end. It was just, um, had to be reduced down into a, into a chapter about, you know, other, uh, practices and different jurisdictions. But it certainly was a ton of input to get there. Um, and so what I think has been clear from our discussion so far is that, you know, you researched really, really broadly. You consulted really, really broadly. Um, and we sit here today though three of us as Toronto commercial litigators. And I just begs the question, and I'm sure our viewers will have it, about how you ensured that you captured, you know, a range of viewpoints and that the report in the end, you know, was a reflection of not just Toronto commercial lawyers, but of, uh, the practice more broadly and, and you know, that the views held or the recommendations achieved reflect really, um, the profession.
Speaker 4:Yeah. So that, that was a really important aspect of, of the consultation process. And we had, uh, this stakeholder consultation subcommittee, uh, whose mandate was to consult with stakeholders across Canada, including advocates in every field in jurisdiction, judges, litigants, experts, and other observers and, and participants in the justice system. As I think, uh, Peter alluded to earlier, it was, uh, the report was informed by more than a hundred telephone and, and video conference interviews and input from the virtual town halls. I think we had nearly 600 or more than 600 justice system stakeholders from AC across Canada. Um, and, you know, in terms of the, the practices that were captured by that consultation process, it included input from advocates working in private practice across the country, country, including remote or northern communities at various levels of seniority from sole practitioners to those at large national firms in a, in a wide variety of practice areas. It included, uh, advocates working in the public sector, uh, including those who work on behalf of vulnerable litigants and, and equity seeking groups. And it included, uh, representatives of various national, uh, and regional legal associations. So, um, a lot of work went into, uh, a lot of work and effort went into, um, ensuring that the report reflected a very broad spectrum of advocates, uh, across the country.
Speaker 3:And so, Deb, you mentioned, um, the report reflecting a broad perspective of advocates across the country, and that's definitely clear from, um, all the consultation that was done. How did the task force ensure that in addition to advocates, it was also the public's experience with the judicial system and the public's, um, you know, needs for reform or wants for reform were captured in the report?
Speaker 5:It's a really fair question, Alex, and it's one of the reasons the report took so long. We didn't want the recommendations just to be seen, frankly, as self-interested suggestions from a, from a stakeholder group of advocates. You know, as my late dad used to say, if you, uh, if you ask a carpenter, you'll get a wooden answer. So you're right. How do you, how do you get the experience of the public? And we're really conscious of that because when you think about whether or not there's a need for oral advocacy or a need for an oral hearing, sure, uh, a hearing, if I can use that word broadly, or a or a, an administration of justice that would resolve a dispute or a step in writing only, for example, may very well be cheaper, may very well be faster, but is it necessarily better? And I'm thinking sort of, of the justice needs to be seen to be done as, as our former Chief Justice of Ontario Justice said, chief Justice Debon used to say the most important person in the room is the losing litigant because they're the person or party that came to the court that day, didn't get the result they wanted. And they need to leave that courtroom understanding how and why that came to be. And I think the integrity of the process depends on that more than ever today. So what did we do? We asked questions that were not grounded in what advocates personally prefer, but what we are hearing from our clients and those we represent and those umbrella groups that, that often look after the interests of unrepresented groups and the questions surrounded the key considerations of the pros and cons of different hearing modes. Uh, I think the discussions that Deb referred to prompted the participants in the town halls, for example, to focus on the interests of litigants, uh, rather than the interest of council. So things like the complexity of the issues, the nature of the evidence, the types of interests like liberty interests that might have been at stake, as well as physical things like the location of the parties and access, uh, to, to, uh, to remote hearing, uh, capability software and hardware as will come to, as well as the costs associated with those. And then some of the overarching concerns that relate to the justice system generally. Is there a public importance element to the matter being determined? Is there a public perception about the administration of justice or the integrity of the process and efficiency, things like that.
Speaker 3:And I had the benefit actually, of looking at some of the source data, some of the inputs from the advocates. And, and I can say that they were answering, you know, with their client's best interest in mind. We heard, as Peter mentioned, on more than one occasion that sometimes a loss is easier for a client to stomach if they sat in the courtroom, you know, they saw the judge was engaged, they saw that the judge understood the issues and considered their perspective, and yet, you know, they did not prevail. But sometimes maybe that doesn't lead to as much appeal work for us, but it's better for our clients having sat in that courtroom and felt that they had their day in court. You know, another thing that struck me that we heard from, um, lawyers on the personal injury bar is that, you know, sometimes a client wants to be in the courtroom so that the trier of fact can see the impact that the injuries have had on their life. And so sitting there and having someone, you know, look you in the eye and see how it's changed the way that you lived, can be impactful for that. On the other hand, we heard that with mobility issues, it's actually sometimes easier in a virtual setting. So certainly when lawyers were answering these questions or when advocates were answering these questions, they were thinking of their clients. And so I guess that brings us, uh, we're we're coming to the end of this segment and it, and one of the questions I wanted to ask before we close out, I have a couple more, but, uh, the next one is, you know, you have all these viewpoints, you have all this research. How do you synthesize that into a meaningful report and, and practical recommendations after you've literally been across the country, you've researched jurisdictions, um, both across the country and beyond, and, and you have a ton of data, what do you do next?
Speaker 5:Fair question. The, the hard part, Alex<laugh>. Um, so, so we, we, we set about to try to synthesize the results of the research, pull it together with the stakeholder input, and then try to develop a working set of draft recommendations that derive from that body of work. Um, we, we tried to distill principles and themes that emerged. So we had, at our town halls, for example, we had recording secretaries, um, to try to input, uh, in an unfiltered way all of the input and ideas we got. And then we tried to synthesize those into themes or concepts that were emerging. Uh, then as I said a few minutes ago, we tried to look at our history in jurisprudence and take what we could draw from that in terms of overarching principles and apply them to the system we've got today. And frankly, to challenge ourselves to ask why we have done things historically the way we have done them. And certainly, uh, the experience you mentioned a few minutes ago about the pandemic, obviously radically, uh, informed our thinking in that way. And then we drew on the breadth and diversity of the taskforce itself, and we, we broadened our working group to, uh, to include input from the advisory group I mentioned at the outset of, uh, of the podcast, to get their experience and observations from the most senior jurors and experienced council, really to use them as a, as a sounding board and test drive. Some of the things, here's what we're thinking, why will this work? Why not? Um, and then finally we establish what became in a, in a very real sense of fifth subcommittee that you will remember, uh, all too well, um, our drafting subcommittee to try to literally put pen to paper, uh, go through multiple, multiple drafts discussions amongst the members of the group and the task force that I can candidly say were, uh, spirited, uh, and enthusiastic. And, uh, and, but, but I think as challenging as they were, they made the, the report better, uh, at the end of the day because, uh, there was, there were so many internal challenges, frankly, about some of the thoughts we had as we began the drafting
Speaker 3:Spirited discussions by friends who argue one might say That's right, yes, we reserve the arguing for those discussions and we've, we're gonna try to avoid it here today on friends who argue
Speaker 5:<laugh> absolutely nothing like 200 type A personalities,
Speaker 3:<laugh> in some ways you almost make it sound easy, Peter and I, I know it was anything but to distill, you know, months and months of research and consultation into what ended up being a hundred page report with some 400 end notes. Um, to close out the episode, I was wondering if I could trouble you to answer, uh, one final question. And, and that question is, who's the target audience for this report? You know, when we were drafting it, who were you hoping would be our ultimate reader?
Speaker 4:Well, at, at a high level, Alex, the target is council courts, uh, attorneys general, and, and those bodies who are tasked with, with writing and, and revising procedural rules for civil and criminal courts and, and then implementing them. And, you know, and of course family disputes are, are included within civil, the idea is that every single stakeholder in the justice system from the judge or the panel to counsel, to courts administration and services, uh, to the litigants themselves have a role to play and a responsibility to help make the system work and an experience to share and, and draw on. And so the report is intended as a foundational document for, for future discussion on how and where to draw the line on virtual and in-person hearings as the modernization of our justice system continues. And, you know, we should be very clear about this. The report's not intended to be the be all and end all. It's the beginning of a dialogue that can and should continue. And so in that regard, I would especially commend the report to those in the earlier stages of their legal careers who, you know, are gonna be driving those decisions in the years and, and decades to come.
Speaker 3:And I, I can't help but second that having been somebody who was on the drafting committee and has had the benefit of reading the report, that it certainly is food for thought as we, uh, progress in our legal careers. Listeners, if that sounds like you and you are one of the intended readers of this report, you can find it, uh, in the show notes for this episode, there's a link to both a print version and a digital version of the Modern Advocacy Task force report, the Right to Be Heard. Uh, that concludes today's episode for folks whose interest has been peaked by this behind the scenes, look at how the report was conceived, researched, and drafted, and want to learn more. Join us next time for a discussion of the findings of the report and where we go from here. I wanna thank you, Deb, for being here, and I wanna thank you, Peter, for joining us as well.
Speaker 5:Thanks so much for having us, Alex.
Speaker 4:Thanks so much. Alex.
Speaker 6:Thank
Speaker 4:You to Deborah Polter,
Speaker 7:Peter Osborne, and Alexandra Shelley. For this, behind the scenes look at the modern advocacy taskforce work. Thank you to my co-editor, Ian Brennaman, our production leads, Kristen Jer and Natalia Rodriguez and the Advocate Society team for their support. This is we co-editor of Friends Who signing Off.
Speaker 1:That's it for our show. We hope you enjoyed listening to this episode and that you'll tune in next time.
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Speaker 1:Friends Who Argue is brought to you by The Advocate Society, an association of advocates with over 6,000 members from all areas of practice across Canada. For more information about the Advocate Society, go to www.advocates.ca or follow us on Twitter at advocates.
Speaker 2:Until next time, we are friends who argue.