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Arguing a case before the Supreme Court of Canada can be a heady experience for any lawyer. It was for Gregory Senda, who represented the respondent in Alberta v. Hutterian Brethren of Wilson Colony, which the court heard on Oct. 7, 2008. Senda, a partner at the eight-lawyer firm of Peterson & Purvis in Lethbridge, Alberta, offered his perspective on the experience.
Why did you become a lawyer?
I became a lawyer by accident. I was working construction in Edmonton and it was very cold. I thought to myself, “I don’t want to do this,” and later wrote my LSAT. I was called to the bar in 1981, and then worked in Japan for 7½ years, which is where I got a taste of international law. Currently, I don’t have a primary area of practice. I aim for files that are complex and big. That is how the Hutterian Brethren found me.
Can you summarize the case?
In 2003, the Alberta government made it mandatory to have your photo taken when you receive or renew your license. My clients are part of the most conservative sect of the Hutterian Brethren. They believe in a literal translation of the Bible and that the second commandment forbids them from willingly having their picture taken. By the time we hit the SCC, the case was narrowed down to a freedom of religion section 2(a) argument.
Did you think it might go the Supreme Court?
I had my suspicions, even right at the beginning. I pleaded at the Queen’s Bench, the Court of Appeal, and then [for leave at] the SCC. I received a one-liner that said “leave of appeal granted.” We had about 30 minutes lead-time on the public.
Did your heart stop?
Yes, it did. Professionally, it was a loss for my client, since it was the government of Alberta that was granted the appeal, but from a personal standpoint, I think all lawyers want to go in front of the Supreme Court of Canada.
What happened next?
When you argue at the lower levels, you rely on the SCC. You know what the issues are and you prepare for that. But when you are at the SCC, you are there because your issue is of national importance; one that has not yet been resolved. Before, we were arguing law, but at this level, it becomes a conceptual or philosophical argument. I had to re-think everything. I couldn’t rely on what I had done in the courts below.
On a constitutional case, the chief justice has to agree on the issue beforehand. So there was some back and forth between her and the appellant, and when it was settled, I realized I did not know what the issue was! Then I worried. It was not until very close to the actual hearing that I settled in my own mind what I was going to argue, what the policy issue was. That was the most difficult part.
How did you prepare?
We had about 10 months. I watched a lot of CPAC as we got closer to the date, and on two separate occasions, I saw lawyers get completely lost. The justices were asking them questions and they just could not answer them. One of them even had the deer-in-a-headlight response, with big, wide eyes. And the court was dead silent! And I thought, “Hmm, I am not going to watch anymore of this, because this is exactly what is going to happen to me.”
Around 10 days before the hearing, I used a pro bono service called the Supreme Court Advocacy Institute. They set up a panel of three lawyers who acted as SCC justices. At that point, I still did not know what I was going to argue, so the process was extremely helpful. They brought up some very good questions I had not thought of. I would really recommend the service.
Also, when you go to the SCC, you must have an agent (law firm) in Ottawa. It’s not cheap, but it’s very useful, and they help you with everything. I used them a fair amount, just to ask little questions so you’re not jittery about the minor things.
What was it like walking into the courtroom?
We were let in around 30 minutes beforehand. It’s the biggest courtroom I have seen. There’s a sitting area at the back, which you don’t see on CPAC. And that was an issue for me, because my clients do not willingly allow their pictures to be taken. They can’t be on TV.
So I had to check with the registrar about this, and he confirmed that the last two rows would not be seen on camera. It brought a little chuckle to the courtroom, because there was a previous freedom of religion case where one of the parties could not have their photo taken due to their religion, but then right after the hearing, he held a press conference.
Were some justices more intimidating than others?
They all scared me! Justices Abella, Deschamps and Binnie were the three who asked the most questions. It didn’t bother me to be interrupted. I think I answered their questions adequately. I’ve seen the tape since then and there are certain things I wish I had said differently. But for the most part, I’m fairly pleased with how it went.
What was the biggest surprise?
That the justices listened to my argument and that they didn’t lean forward and say, “Mr. Senda, you don’t know what you’re talking about!”
Did you secretly wish they would rule on the spot?
No. If they do, it means it’s not an important case. I’m glad I was so focused on my argument that I didn’t realize the ramifications of what I was arguing until I came down from the whole experience and started thinking about it. I’m really looking forward to this decision. This can be a very important constitutional case. Almost the first question asked of me was: “Are you suggesting that we get rid of Oakes?” It’s of that level of importance.
Are you anxious?
It’s either over-confidence or stupidity, but on the facts, I’m not worried. On the law, I’m not worried. I’m looking forward to this decision, which will come hopefully around April. We’ll learn about it half-hour before everyone else. For any first time lawyer like myself, going to the Supreme Court is just amazing. I want to go back again.
Ava Chisling is a media lawyer in private practice and a freelance writer.