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Howard Levitt: Arguing a case at Canada’s top court is an intense and rewarding experience

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Howard Levitt: Arguing a case at Canada’s top court is an intense and rewarding experience

Given that Dave was exhausted from nine years of litigation, I also agreed that I would not charge him unless he won — perilous, given the historic prospects of even getting to the court. But an appearance at our top court is worth that risk.

It is tough to get before the court. It only hears roughly 70 cases a year from across Canada in all areas of the law. Many of those 70 spots are filled by criminal law cases and referrals from provincial governments which proceed to the court as of right. That leaves less than 50 spots for the balance for which you must seek the court’s leave. Aspiring cases with which ours had to compete covered the gamut of important issues, Aboriginal rights, natural resource law, constitutional disputes, family law, Charter litigation, everything. On the day our leave was heard, 28 cases from all areas across Canada were on the docket. Only one leave was granted. Ours.

Then there was the big day: Oct. 8, 2019.

We were the first case of the session and we knew that the court would be ready for us. One does not become a Supreme Court judge by accident. Every one is at the top of their profession with matching confidence. Each Justice has four law clerks, taken from the top students from the top law schools in the land. So facing seven judges (two were not sitting this day), we had 35 brilliant minds in all preparing questions and probing for weaknesses in every position we took. We only had an hour and, not more than a minute in, the cross-examination by the court commenced. As in my other appearances there, it was among the most intense intellectual experiences of my life. I have appeared before several of our province’s Courts of Appeal. This was at yet another level.

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