Marshall Rothstein served as a Justice on the Supreme Court of Canada from 2006 – 2015. He previously was a Judge on the Federal Court of Canada and the Federal Court of Appeal.
Garth Barriere is a criminal defence attorney in Vancouver. He was counsel in Khosa v. Canada (Citizenship and Immigration, a major Supreme Court of Canada immigration decision in which Justice Rothstein wrote a concurring opinion.
In this episode Justice Rothstein provides tips for written and oral advocacy. While the focus is on appellate litigation, anyone interesting in strengthening their advocacy skills will benefit from what he has to say. We also discuss the Supreme Court of Canada’s decision in Khosa v. Canada (Citizenship and Immigration), and its impact on administrative law in Canada. It is a frank conversation.
9:00 – What it was like for Justice Rothstein when he was appointed to the Federal Court of Canada and to adjudicate cases on which he had no previous experience?
12:30 – How was it different being on the Federal Court vs. the Federal Court of Appeal vs. the Supreme Court of Canada?
14:20 – What strategies or approaches would Justice Rothstein suggest for counsel appearing at the appellate level instead of at the trial division?
18:23 – What is the most important thing to remember in written advocacy? What is “point-first writing?” A helpful piece to read on this can be found here. http://www.ontariocourts.ca/coa/en/ps/speeches/forget.htm
21:10 – What tips does Justice Rothstein have for oral advocacy at the Supreme Court of Canada?
31:30 – What makes a good factum? Does Justice Rothstein believe that the IP bar produces the best factums?
36:20 – What was the Supreme Court of Canada decision in Canada (Citizenship and Immigration) v. Khosa about?
41:15 – How did Khosa change the standard of review analysis?
45:00 – Justice Rothstein discusses his dissent in Khosa and his thoughts on Dunsmuir v. New Brunswick, the leading case on standard of review.
57:40 – Garth Barriere, who was counsel in Khosa, offers a critique of the Supreme Court of Canada’s standard of review jurisprudence.
1:01:20 – What, if any, guidance should be given to judges regarding when they should show deference and when they shouldn’t?
1:08:00 – At the time of Khosa did Justice Rothstein predict how far along the deference path that standard of review deference would develop?