贵辞谤听Katie Tucker, BCL/LLB鈥07, and聽Zachary Davis, BA 鈥04, BCL/LLB鈥09, presenting in front of the Supreme Court of Canada was nerve-wracking and exciting in equal measure. One called it 鈥渇un,鈥 the other might not have chosen that word, but they agreed it was an honour. Tucker recalls an experienced lawyer advising, 鈥淚f you鈥檙e not nervous, you鈥檙e a fool.鈥
Tucker and Davis, both with the firm Pape Salter Teillet, had this opportunity when the Attorney General of Quebec challenged the constitutionality of the 2019聽Act respecting First Nations, Inuit and M茅tis children, youth and families.聽The federal Act provides Indigenous communities with control over their children鈥檚 welfare. Quebec said it trod on the toes of provincial jurisdiction. Tucker represented respondent Makivvik; Davis represented the intervenor Listuguj M鈥檊maq Government.
Pleading before Canada鈥檚 highest court is an exercise in concision. Months and months are spent carefully crafting a factum of a dozen pages, sometimes more, which must then be condensed into a 5 or 10-minute intervention.
Tucker relished the time to grapple with big questions. If a case is in front of the Supreme Court, 鈥渋t鈥檚 probably not settled and is very intellectually interesting and exciting,鈥 she says. 鈥淭his case in particular raised significant constitutional and Indigenous law questions of great importance to Indigenous Peoples and the reconciliation process.鈥
At court, there鈥檚 plenty of pomp and ceremony 鈥 the justices are decked in mink, after all 鈥 but Davis was impressed by how quickly everyone gets down to business. The doors open, 鈥淭he court!, La cour!鈥 is announced ringingly, the justices file in, sit down, and start. There鈥檚 none of the usual throat clearing, housekeeping and chit-chat that can occur in lower courts. 鈥淵ou get the sense that time with the Supreme Court is very, very precious,鈥 says Davis.
Tucker presented on the first day, thoroughly prepared on the controversial aspect of the case she鈥檇 chosen to focus. She launched into her oral argument and was interrupted by a question from a judge, 鈥渁lmost immediately.鈥
鈥淚 got about ten seconds into my carefully crafted speech, in which I had vexed over every word and BOOM! It didn鈥檛 matter at all anymore,鈥 Tucker recalls.
鈥淭he tricky bit was trying to say what I wanted to say while answering,鈥 she adds. Judges only ask about what they鈥檙e interested in or bothered by. 鈥淵ou have to take that very seriously and honour their questions. If they鈥檙e taking you off course, it鈥檚 because they feel there鈥檚 something to be answered.鈥
Davis had only short notes for his presentation because his intervention was happening on the second day. 鈥淔or about a day and a half, as I was listening to what was going on, I was writing and rewriting until it was my turn.鈥
鈥淭he real challenge is whittling down to something that can be effectively said in five minutes in a way that might influence the decision,鈥 Davis says, and being very attentive to how the argument is developing. 鈥淏ecause the relevant issue, by the time it鈥檚 your turn to speak, may not be what you thought it was.鈥
This wasn鈥檛 his first stint at the Supreme Court. In 2013 when his boss got sick, Davis had to step in to represent the Grand Council of Treaty # 3 as intervenor in聽Grassy Narrows First Nation v Ontario. 鈥淚 got that sort of airy weak-kneed feeling. You modulate your breath, you get into it, and you鈥檙e okay!鈥
He recalls then Chief Justice Beverley McLachlin quickly zeroing in on him. 鈥淪he was just brilliant,鈥 he says. 鈥淚f there is a weakness in the argument, one of the nine is inevitably going to point it out to you,鈥 he learned.
This time around, Davis presented virtually. Though less nervous, he found it more difficult to engage the panel. He鈥檚 impressed by lawyers who can do so through screens from afar.
Davis likes a narrative approach. He cites the example of a litigator who was talking about modern treaties. The Crown thinks of a treaty like a divorce, an arrangement that means the parties won鈥檛 have to talk to each other again, the lawyer had argued. First Nations, instead, look at a treaty like a marriage, something to be cultivated and worked on. Davis was impressed by the impact of starting with an analogy, and returning to it at the end. 鈥淧eople will remember an image,鈥 he says.
In the proceedings, Tucker loved the chance to meet lawyers representing Indigenous groups across the country. She found collegiality, shared passion, and warmth. 鈥淛ust making friends! It was a real bonding experience.鈥
A bonus for Davis was seeing his former professor of civil law on the bench. Justice Nicholas Kasirer, BCL鈥85, LLB鈥85, was dean of the Faculty of Law from 2004 to 2009. 聽聽鈥淚 tried to think back to his teaching style, how he was as a writer, a jurist 鈥 could I speak to those qualities? I鈥檓 not sure I managed, but it allowed me to psychologize the Court a bit.鈥
In February 2024, in a unanimous judgment, the Supreme Court ruled that the聽Act respecting First Nations, Inuit and M茅tis children, youth and families聽was constitutionally valid and dismissed Quebec鈥檚 appeal. The decision was seen as a win for Indigenous self-government. 鈥淚t鈥檚 an honour to represent Indigenous peoples before the Supreme Court,鈥 Tucker says. 鈥淚t was stressful, but important.鈥
