Friends Who Argue
Friends Who Argue
Interview with Award of Justice Recipient David Nahwegahbow
In this episode, Kathleen Lickers, IPC, LSM interviews David Nahwegahbow, IPC, LSM, the 2021 recipient of The Advocates' Society's Award of Justice. In their fascinating and highly informative conversation, Kathleen and David discuss litigating Aboriginal rights issues from the inception of the Charter up to recent and ongoing litigation during the COVID-19 Pandemic.
David C. Nahwegahbow, IPC, LSM
David Nahwegahbow is the 2021 recipient of The Award of Justice, and a former director of The Advocates’ Society. Called to the Ontario Bar in 1982, he is the founding partner of Nahwegahbow, Corbiere Genoodmagejig Barristers & Solicitors. David is also a founding member and former President of the Indigenous Bar Association (IBA); and in 2003, he received the "IPC" designation (Indigenous Peoples' Counsel) from the IBA in recognition for his advocacy work on behalf of Indigenous peoples. He received a National Aboriginal Achievement Award for Law and Justice in 2008. Shortly thereafter, he was presented with the Anishinabek Lifetime Achievement Award from the Union of Ontario Indians which recognizes the dedication of individuals who have devoted their lives to the service of their communities and the Anishinabek Nation. In 2010, Mr. Nahwegahbow was inducted into the Common Law Honour Society of the University of Ottawa's Faculty of Law, the Common Law Section's most prestigious Alumni distinction. In 2011, Mr. Nahwegahbow received the Law Society Medal, an award granted by the Law Society to selected lawyers who have made a significant contribution to the profession.
Kathleen Lickers, IPC, LSM
Recently awarded the Law Society Medal, Kathleen Lickers is a Seneca from Six Nations of the Grand River and sole practitioner, operating her own law practice at Six Nations. She is widely recognized for her work in Indigenous Affairs. She has served on the board of the Indigenous Bar Association of Canada and has been described by other Indigenous leaders as a role model for Indigenous youth. Kathleen is renowned for her expert counsel and as an accomplished negotiator between Indigenous agencies, First Nation governments and federal and provincial ministries. Former co-chair of the Indigenous Advisory Group to the Law Society of Ontario, Kathleen currently serves on the Board of the Advocates Society and is frequently sought after for her skillful mediating in multi-party, multi-table complex negotiations.
Learning Resources from The Advocates' Society
Guide for Lawyers Working with Indigenous Peoples
Guide pour les avocats qui travaillent avec des parties autochtones
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,
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Speaker 3:I'm Kathleen Leers. I am, uh, Seneca from six Nations of the Grand River, uh, which is actually the only reserve, uh, in Canada to be home to all of the six nations of the, uh, Hoor Confederacy. So that is my home. Dave, this interview came about at the invitation of the Young Advocates and 10 Plus following your receipt of the Advocate Society Social Justice Award that you were the recipient of. And in that award, we made note of your biography being called in 1982 to the, to the Bar of Ontario. But maybe we should start with letting the listeners know who you are.
Speaker 4:Okay. Yep. My name is, uh, David. Now Gobel, I'm Nishina or Ojibwe from around Manitoulin area, Northern Ontario, which is about, uh, an hour's drive southwest of Sudbury. Most people would know where Sudbury is. So I'm, I'm a Northern Ontario boy. My, um, I grew up on the Res Whitefish River. My nbe name is Gik, which means Des Star. Of course, Kathleen, you'll be familiar with our people giving aside from our regular surnames, we, we get spirit names or Indian names. So my spirit name is Gik or Des Star, and we have clans just like, just like the Ho Naone have clans. And my clan is, uh, mine gun or a Wolf clan. Right now, I'm, um, I'm in Aurelia. I have a, I have a place at home in Aurelia, uh, as well as, uh, a home at Whitefish River First Nation. But right now I'm here cuz our office is at Rama First Nation, which is, uh, just north of Toronto. A couple hours. Really happy to be here. I was on the board of the Advocate Society for one term. I'm glad, uh, gladly passed that over to, uh, to you Kathleen. And I know you're doing a, you've done and are doing a great job there. It was, I think, a first for the Advocate Society when I became board member, the first indigenous practitioner or advocate there. And, and I'm glad and I hope Task keeps up that tradition of ensuring that we have indigenous representation on tasks, which is a really important, important organization. I was called to the bar in 1982. I attended Ottawa University, graduated in 1980, lived in Ottawa for many years, had my office there. Started, started my practice right after getting called to the bar. Done work over the years for many organizations. Initially started out my practice in Ottawa, just doing general practice cuz I, I really did want to get a kind of well-rounded experience in the law in different areas of practice. So I didn't anything that walked through the door at that time. Family, criminal and real estate. And of course my interest was always social justice, justice for indigenous people. So I'd always, I'd always kind of done work on Aboriginal and treaty rights issues. And now my practice is exclusively aboriginal and treaty rights work for indigenous peoples. So that's kind of a rough sketch of the, uh, legal aspect of my career at least. So, no, of course, I'm, I've been in practice now, it'll be in May 40 years. Hard to believe. You know, I can just remember when I was a young advocate, um, thinking, geez, you know, I wish I was older,<laugh>,<laugh>. Cause uh, you know, when you're young, you really don't know a whole lot. And, and judges tend to look at you as, at least you think, of course I know now that judges are respectful and kind, uh, to young advocates and try to give them as much help as possible and other senior lawyers do as well. But, you know, you're kind of insecure when you're young. And so you think, geez, I wish I could, you know, look a bit older<laugh>, or be a little bit older<laugh>. And then next thing you know, it happens. So, uh, and it happened so fast,
Speaker 3:But let me say, Dave, I think only your gray hair gives you, gives you a way you've maintained, uh, maintained your youthful glow
Speaker 4:<laugh>.
Speaker 3:Um, let's, let's unpack some of this because I think while you have breezed through a bit of the 40 years, you really are a man of many firsts. And I think it would be really interesting for the listeners to know, being called in 1982 was to usher in one in Aboriginal and treaty rights, a whole sea change of a, of promise of what that meant for the indigenous community. But in the, in, in the practice that you have as a litigator in the advocacy of Aboriginal and treaty rights in the courts and being a man of many firsts, what was your, the key challenges, um, at that time? And I'm asking you, cuz I, I, on the other end of that is what's happening in your practice and your advocacy now? And we can talk about the, the Restore watershed challenges and successes there. But going back to the eighties and nineties, what was the mentorship in your career?
Speaker 4:Yeah, that's a good question. Gotta go back to the<laugh> mists a little bit.<laugh> well, 1982, and I think you framed it well that it ushered in a whole new period, 1982 of course was, was the year in which section 35 of the Constitution Act became entrenched. Aboriginal treaty rights got recognized in the Constitution Act. And that was an important period. I had been working with the predecessor to the Assembly First Nations and National Indian Brotherhood, and there was a great focus in that period, late seventies, early eighties, on amending the Indian Act. And then the focus became, of course, because, you know, things like self-determination, self-government were discussed and how it was ought to be recognized. Well then Prime Minister Lia Trudo wanted to patriot the Constitution focus turned to recognizing the rights of indigenous peoples because we'd been through an era in which there was a lot of denial and, and attempt to assimilate indigenous people to kind of squash, uh, the recognition of aboriginal tree rights. And then Prime Minister Trudeau was being a proponent of that. He thought it was, you know, treaty rights were anachronism. And also that Aboriginal title was non-existent. And so during that period, or in the, it just, in the period leading up to that, of course we had the Nka case or the Calder case out of British Columbia, which, uh, was the first important case in modern times about the recognition of Aboriginal title. And it went to the Supreme Court of Canada, and the court recognized Aboriginal title and two Prime Minister Trudeau's credit, he changed his view on Aboriginal and treaty rights. So then that ushered in, as you say, a whole change in, in the way aboriginal tree rights were treated. And we still, we still have, um, remnants of, of that kind of non recognition denial, which was systemic in the system and continues to be systemic in the system. I remember when the Constitution came into effect, it was April or May, I was called to the bar in May, and I think the Constitution Act was, uh, came into effect in April of 1982. So we kind of got born at the same time,<laugh> Section 35. And myself and I did have an opportunity to work on advocating for the recognition of aboriginal tree rights. I was grateful to be around at that time. But I remember going into court not long after Section 35, got, uh, put into the Constitution and, uh, making an argument about hunting and fishing case or something. And I said to the judge that we were gonna raise constitutional rights. And I remember him just turning around in his chair, and when I say systemic, it was systemic, just a lack of respect for indigenous people. Lack of respect for the rights of indigenous peoples. So I guess that was the impediment then. And you know, when, when they entrenched the rights of indigenous people in section 35, there was this belief, and I'm sure you're aware of that section 35 was a, was an empty box that mm-hmm.<affirmative> didn't really bring anything in the way of, of, uh, recognizing the rights of indigenous peoples. It was there and it was meant to be negotiated. That was the position of governments including all of the federal, uh, all of the governments, Canada and the provincial governments all took the view that the fact that aboriginal treaty rights were recognized and affirm the Constitution Act didn't mean anything because it had to be negotiated. So of course, that provided the basis on which they continue to litigate against Aboriginal people in hunting and fishing cases and all manner of cases. Uh, so there, there, I guess the question you ask is what was the biggest challenge? And I think that continues to be the challenge. Although advocates have been making a lot of progress in convincing courts, including the highest court in the land, that those rights are, are intended to mean something in the Constitution Act.
Speaker 3:I'm wondering in the experience that you're reflecting on in the kind of tools that help to shape the practice when confronting the assertion of Aboriginal and treaty rights in, in the courts for the triers of fact whom are hearing these cases in the examination of elders and knowledge keepers and the proof of our strength of claim type analysis that the court's litigation, civil litigation requires of us. Have you seen improvements? Have you seen strides? What more should we be turning our minds to? Uh, and I'm particularly interested in your sharing of experience in how you advance to the Restore litigation, because for people that that may not be aware, it's a pre-con confederation treaty. So we're going back, which is material to section 35, because you have a constitutional framework, as you say, it's an empty box, but the, there were negotiated promises and undertakings that predate Section 35. So how is your advocacy, how is the advocacy in advancing the Restore litigation, did it represent the kind of change that we would hope in 1920? Well, trial first proceeded in
Speaker 4:20 19 17, actually. And the decision in stage one was handed on in December of 2018. I mean, that's a good, that's a good question. And I'm gonna reflect a little bit on the role of the Advocate Society because it, it really has an important function, as I said, in in teaching skills, advocacy skills. Of course, it's reflective of an adversarial system. And one of the things about indigenous legal systems is they're not adversarial. They're, they're more holistic and, and, uh, consensus based as you know. And in a lot of ways, I mean, what had been happening in the courts when advocates were trying to bring land claims and other kind of claims forward when they were bringing elders into the courts into a system which is foreign to the way they do things. Right. And of course, our societies, nishina and orone and indigenous societies respect the role of elders and knowledge keepers. And of course, we wouldn't put them through kind of cross-examination that would denigrate or disrespect them. Yet elders were being brought into the court and really being vigorously cross-examined on, you know, evidence that they, that they were bringing forward. And it, it was turning, it really turned our people away from courts as being venues for justice. I mean, it, it just appeared to be the same old thing. Like, like the criminal courts were, are, were criminalizing our people for years through, you know, hunting and fishing cases and prosecution. So it wasn't helpful. Um, and I, I don't know that, that you can necessarily blame the advocates that were doing this because they really just didn't understand. And I think one of the good things about indigenous involvement with the Advocate Society and the Advocate Society, of course, is highly regarded by, by judges throughout the country, has got a great reputation. I think it's a great marriage for the Advocate Society and the Indigenous bar to, to, to get together, to provide insights into the way indigenous legal systems work, how indigenous peoples are different. And I think that sort of translates into the need to impart skills on advocates that are unique in dealing with indigenous issues. Because you, you can't just do things the same old way Right. In an adversarial context that advocates are used to. You need to be respectful and you need to try and get the court and your friend's opposite to, to understand that, to understand that, you know, you're dealing with, uh, a different legal system. And it'd be just like in a lot of ways, like running into, uh, a court and some of the country and just running rough shot over the way they do things right. Mm-hmm.<affirmative> in a lot of ways. So mm-hmm.<affirmative>, I think that's an important role for advocates and it's an important role for advocates to understand that there are differences. You know, there've been a couple of important developments on the part of Judges. For example, one of the pieces that's highlighted in the Guide that the Advocate Society published is, is sort of a centerpiece, actually at the time was this, uh, um, article written by a former Chief Justice in of British Columbia. Mm-hmm. Lance Finch about the duty to learn about indigenous laws and indigenous, uh, legal traditions. And more recently, another piece by the Chief Justice, a diff a new, the current chief justice, I believe, in British Columbia about not just the duty to learn, but the duty to act on what you've learned, right. About indigenous legal systems. And, and, uh, I guess that means kind of the importance of recognizing and giving effect to the things that we learn about indigenous peoples. So I see some, uh, positive progress, uh, in the context of the case that we're working on in the Rusto, of course, we had Justice Hennessy, who is from Northern Ontario, but very, very open to listening and to understanding, uh, and to accommodating indigenous ways and indigenous laws into the court process, including ceremonies, indigenous ceremonies, which was really important for our people. As you were bringing this case, this is a treaty case, and it, it is a pre-con confederation treaty. The Robinson Huron Treaty was entered into by the nishina of North of Lake Huron. And the ro uh, sister treaty, the Robinson Superior Treaty was entered into by the Nishina north of Superior. It was a huge land mass. The treaties were entered into at a time when the British crown was predominant. Canada was a colony, it was a province of Canada, predated the existence of the provinces and the current federal government as we know it. And at the time, of course, it was, you know, that part of the country was predominantly occupied and ruled by nishina people. I mean, there were few, uh, non-indigenous people up there, Hudson's, big company traders and few settlers, but very, very little. So I think it's important for us as advocates to try to bring the court and our colleagues back to a sense of really what was happening at that time. Mm-hmm.<affirmative>, right? Mm-hmm.<affirmative>, you gotta read the treaty and the provisions of the treaty in context and that case involved was an, it's an annuity augmentation case. The annuity provisions in the treaty provided for the payment of in annual annuity, which today they continue to pay it and it's like$4. At the time, the province of Canada was basically broke. They didn't have any money, and Britain was trying to offload these responsibilities. They were kind of devolving and as a, as an empire kind of contracting. So I think it was important for, I mean, of course the Crown still maintained an important role and the relationship that was entered into in the treaty was according to our people. And the Crown knew this at the time, uh, a sacred relationship. The treaty was and is and continues to be a sacred document, uh, sacred law. So we had elders bring forward their perspective on the treaty relationship and how important those things are, that it's not just a document, it's not just a contract. Right.
Speaker 3:And I think unique, I think that is what's the most material about, I mean, we're reading the case, you are in the first chair and the lead litigator representing all of the plaintiffs in the case, but what's material is in bringing that perspective, the anishinabe into the court, you, you are bringing with them their oral society. You're bringing with them their oral tradition and law. And on the other side is the crown perspective that wants to rely upon the written an interpretation of the written terms. So you have, in this one more recent example, you have both of these world experiences in a superior court. And that I think is something that we should, as advocates really examine more closely what it is to bring Anishnabe perspective through the knowledge of keepers and the elders into the courtroom in their language in ceremony to be examined and cross-examined, but in a way that is not culturally intrusive or disrespectful mm-hmm.<affirmative>, but actually shows a path of respect and equality of evidence and how it's achievable. I think that's what is the opportunity for us to learn from that. You've set a, you've set an example, you've set a, or chartered a, a path that we can depart from, even in the, in an adversarial context, we can still do things differently, respectfully.
Speaker 4:Oh, oh, for sure. I mean, it's captured by the term reconciliation, I think, which, uh, the Supreme Court of Canada has said is sort of the central purpose of section 35. Mm-hmm.<affirmative>. And really I think is the central purpose of trying to find a path forward between indigenous peoples today and a contemporary context, trying to find ways of making, like the example, we have the adversarial process more friendly or accommodative of indigenous people and indigenous legal systems. You know, we had, of course we had, and we have our own legal systems and our own laws as indigenous peoples. So[inaudible] of course do. It's famous for having its, you know, a real structured form of government, which was recognized by all. And so I think those are important to begin to understand and to begin to move forward as, as best we can, and to try and make sure that the, that the, that the system is gonna, is gonna recognize and respect, uh, our governance systems and our laws. Because we're not going away and we know, you know, the government of Canada and, uh, the people that are here are not gonna go away. So we gotta find a, we gotta find a way forward ground.
Speaker 3:I wanna ask you, David, because I think you would have had over the course of the proceedings in, you would've had pre covid the trial proceeded as we knew the world then you were heard in the Ontario Court of Appeal over the, over the summer. But we are, we were in the midst of the pandemic. And so you argued the appeal in the Zoom world that we now find ourselves in. Do you wanna give some, any kind of reflections on what the experience, what the Zoom court experience is like?
Speaker 4:The trial was conducted wholly and, uh, sort of in person. And it was good because we were able to conduct part of the trial on Manitou in Nishina country. And we did a another week in Garden River. The rest of it occurred at, uh, in Sunbury. Um, I think it's, uh, it was important that we had those, those in person. Of course, the Sacred Fire was going, whether it wasn't Subbury or in the indigenous community. So that was important. And of course we participated in ceremonies, sweat lodge ceremonies, pipe ceremonies, which are in person. The judge participated in those ceremonies and ensured that at least one member of each legal team of Canada, Ontario and Red Rock and White Center and our, and our legal team participated. So we, we were in person inside a, inside a sweat lodge. You, you really can't do that virtually. And we're hopeful that stage three of the trial will be able to be conducted in person.
Speaker 3:What is stage three, David? Just
Speaker 4:Remind us. Well, the, the rest tool decision was, decision was made that it would take place in three stages. The first stage dealt with, uh, the treaty obligation and whether it was a Judi Gable obligation. And if we were favorable in that stage two would deal with Crown defenses. We were successful in stage one and we dealt with Crown defenses in stage two and we were successful. And stage three is now to deal with the remainder of issues, including the quantification of damages or compensation, as well as which Crown is liable. Is it Ontario or Canada? So it's kind of the crown allocation issue. Stage stage three we're hoping will be in person. I guess it's maybe a little more amenable to being dealt with cuz there's, uh, expert's testimony, mainly Ontario appealed stage one and two. And we were heard at the Ontario Court of Appeal. The decision was just issued in November. It was interesting that, how that came about. Of course, you know, it was kind of a shock for, for everybody to, uh, to go into Covid. And at the, at the early period, we were at the early period when the court of appeal was still, you know, not sure whether it should do this in person or, or virtually. And we decided that the appeal be adjourned because it was quite a bit of uncertainty. And so going into the Court of appeal, we, we were in front of five judges. It was a, was unusual cuz they consider the case such an important case. And it was, uh, I guess appeals are a little more, uh, a little easier done virtually than trials. So it kind of went off without a hitch. It was planned to be an electronic, not a, not a, a virtual trial, but all the documents were electron already and mm-hmm.<affirmative>, the judges were, were used to dealing with, uh, documents electronically. Our, our legal team was partly, partly in, in Ontario out of our o office in Rama, part of our legal team is, is out of, uh, British Columbia. Mm-hmm.<affirmative> and the Red Rock legal team is out of Victoria as well. So it was, it was a bit of a challenge to logistically kind of make sure we were all coordinated, but judges were really forgiving and, and, um, and accommodating. They really also accommodated ceremony. They participated, uh, virtually at least.
Speaker 3:Do you wanna explain Dave, why ceremony was, was a part of the proceeding?
Speaker 4:Well, it's, uh, it's just an important part of, of being Nish Naba like, and when you deal with things that are sacred, like we consider treaties to be sacred, and how our elders or how our people consider those documents, you can't avoid the fact that you have to deal with ceremony. And some of the evidence that you're discussing, uh, have real kind of sacred or spiritual significance. The stories that are brought forward in the trial, we call them in our language on socan, and that means sort of spiritual stories that are passed on. Those are the vehicles that carry the law. And so it was important for the elders and for the experts. We called on the national perspective to communicate those stories. Well, there's, there's ways in which those stories are allowed to be communicated, and you can only communicate those things if you've done the proper protocols like ceremonies. So the ceremonies were important for that reason. But they were also important because the SNA saw this as, I mean, it was in a court, but anytime they engaged historically with the crown, it was preceded by ceremony and it was approached respectfully by both sides, by both the Nishina and by the Crown. In fact. So that's another reason for, for, um, that was another reason for the ceremony.
Speaker 3:I ask too, because one of the keen focus last year of the a at the Advocate Society under then President GI Pratt, was to examine the, the role of advocacy, oral advocacy in a modern, in a modern environment and the Advocates society. We spent the year taking a broad, uh, perspective on it. And one chapter, um, that I worked on, um, with members of the bar, indigenous bar is, is oral advocacy and the way ceremony, uh, and law is in the adjudication of issues can never be displaced. And so we are, it, it's almost an impossibility to simply look to the written text again, as the only means by which if modern advocacy is to evolve, we can't displace the, the role that the oral traditions that we have are a part and parcel in vehicle for our laws to be introduced. They aren't, and there's some, there's some of that work was to say, even in the documenting of it, even in the writing down of it, it, it risks the changing or the alteration of it and getting those, translating those concepts to the profession. That's a, that was part of the challenge and part of the, part of the task. But when you're doing it in action, when you're actually doing it in, in the courts as you did in Reto, there's no better and there's no clearer demonstration of, of this significance than the importance of it. And, and that's your, that's been your life's work.
Speaker 4:Yeah, no, for sure. The, uh, you can't under underemphasize, um, the role of oral advocacy and indigenous, uh, legal cases in, in the way indigenous people conduct their affairs. I know there's increasingly an emphasis on FACTA and written argument, and I think that has a place, but, but there's part of the, part of the story, like exactly what you've said, Kathleen, that needs to be communicated verbally. And, and our people often say, you know, you have to speak from your heart, right? Like, that's, that's the part that you, that doesn't come out in, in a document when it's just written right. You have to be able to, to, to say it. And, um, from your heart,
Speaker 3:Let's talk about the generational sort of shift and the need to really speak to the younger members of the bar, um, that are coming up. And it was, we started by talking about the role of skills and skills development, uh, and certainly the Advocate Society is, it's their mission. Um, but what would you, what would you tell the young, young professionals, Dave, as if they had, if you could go back into 1982 and provide the advice that that would've helped you as a young advocate knowing what, you know, after 40 years?
Speaker 4:Yeah. Well, I think, uh, the importance of keeping an open mind about things and always be willing to challenge what appears to be the status quo. I mean, I stood out this discussion by talking about the systemic, right, the systemic issues that we, we faced back in the eighties. And we continue to face maybe to a less degree, but they're still there. So I think it's, it's, um, the importance of being able to, to break through, um, those systemic barriers to which are, I mean, also, you know, sort of psychological, right? It's always hard to, to change things to, to go against what is the prevailing, prevailing way of doing things, right. And that's what's involved because the legal system is, is structured. Uh, mind you, advocates are advocates because they're ready to bring about change, right? And so I think as advocates we're and as young advocates, they're even better situated to, to challenge the system in ways that are, are gonna be more respectful of, of the rights of indigenous peoples social justice. It's not just indigenous issues, but it's other issues of human rights.
Speaker 5:Thank you Kathleen, caffeine, liquor and David for that informant inspiring conversation. Thank you also to my co-editor, Hale, our production leads, Kristen der and Natalie Rodriguez and the team for support. This is Ian, co-editor signing
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