Inaugural criminal appellate advocacy program honours former justice Rosenberg

By Anita Szigeti

Law360 Canada (February 8, 2023, 11:50 AM EST) --
Anita Szigeti
Anita Szigeti
The Ontario Court of Appeal held the first Rosenberg Mentorship Moot at Osgoode Hall on Jan. 28, 2023.

With so many moots happening seemingly every week, what’s different about this one? Well, for one thing, it’s not really a “moot” at all. It’s so much more than that. Yes, there was an appeal problem, based somewhat loosely on a recently decided Supreme Court of Canada case (R. v. Tim [2022] S.C.J. No. 12) and arguments were heard in courtrooms.

But what people have already started to call “the Rosenberg,” is actually a unique mentorship program for new lawyers interested in gaining experience in criminal appeals. It offers participants an inclusive and collegial environment in which meaningful long-term professional relationships are formed through active mentoring, support and events, all leading up to an experiential (non-competitive) moot, when judges preside over oral argument in the Court of Appeal.

The program honours the memory and enormous contributions to the administration of justice of the late justice Marc Rosenberg, who was a judge of the Court of Appeal for Ontario for 20 years (1995-2015). He passed away in 2015, leaving a remarkable legacy of mentorship, collegiality and a commitment to improving the justice system in every respect — not just for persons accused of criminal offences, but for lawyers, judges and all participants.

The mentorship program reflects justice Rosenberg’s values and commitment to improving the administration of justice through collaboration.

Justice J. Michal Fairburn, associate chief justice of Ontario, was among the moot day judges and led the groundbreaking initiative. She said:

“The Court of Appeal for Ontario was thrilled to support the first-ever Rosenberg Mentorship moot. The last few months, culminating on moot day, have been a shining example of the profession at its very best. Not only has there been a breaking down of barriers, but a constructive building of new and strengthened relationships between mooters and mentors, Crown and defence counsel and the Bench and the bar. It was a fitting tribute to the Honourable Marc Rosenberg’s memory and a true reflection of the motto: ‘We are stronger together’.”

The program was designed to offer recent calls to the bar who otherwise had little or no access to mentorship, an opportunity to try their hand at appellate advocacy. While other mooting programs involve law students, there was nothing like that for practising lawyers.

Add to that, three years of COVID-19 isolation have robbed new lawyers of many of the interactions we took for granted in the pre-pandemic, in-person litigation era. Many younger counsel have not had the chance to shake hands with the lawyer on the other side, or go for lunch after a hearing.

Defence counsel have not been able to forge relationships with other young defence lawyers who happen to be in the physical courtroom at the same time, having their matters heard. And a significant percentage of new lawyers are striking out on their own, not associated with a law chambers, meeting their colleagues only virtually while attending online CPD events or in Zoom court. On the practical front, for those working alone, gaining access to mentoring and to working on criminal appeals could prove elusive. All this left a gap and a pressing need to facilitate connections between defence lawyers, younger Crown counsel and senior mentors — and in a way, even the court.

The Criminal Appellate Advocacy Development Program filled all these gaps and met the needs identified. The program afforded mooter/mentees barrier-free access. To ensure that the program is truly inclusive and reflects the diversity of the bar, mooter applicants were selected from the membership of four organizations: the Roundtable of Diversity Associations, Law and Mental Disorder Association, Women in Canadian Criminal Defence and the Criminal Lawyers’ Association’s recent calls. Accomplished senior criminal appellate mentor/coaches were drawn largely from the roster lawyers of the Pro Bono Inmate Appeals Program, which offers duty counsel and other assistance to unrepresented criminal appellants in the Court of Appeal, as well as from the Public Prosecution Service of Canada and Crown Law Office Criminal (CLOC)).

This was a large-scale undertaking. Twenty-four mooter mentees were paired with 24 mentor coaches. Teams of four were created, so that every mooting team of mentees was assigned two mentors, one senior defence lawyer and a senior Crown counsel. The organizing committee spent fully a year putting the program together, and the success of the program depended on the volunteer assistance of 100 people, including 18 judges, mostly from the Court of Appeal, but also from Ontario’s Superior Court and Court of Justice. The court’s staff and administration were instrumental in managing logistics, including keeping the court open and secure on moot day, a Saturday!

Participants spent a couple of months getting together to practise oral arguments. In the process, long-lasting relationships were formed among mooters and mentors within each team. On Jan. 12, 2023, the program kicked off with a warm welcome from Associate Chief Justice Fairburn. There were presentations by renowned members of the criminal defence bar, including a speech about justice Rosenberg and appellate advocacy tips by the venerable Marie Henein.

She cautioned against taking any advice to argue your case a specific way with a grain of salt, especially where style is concerned. “Be authentic, be yourself,” she counselled.

Nader Hasan, a highly respected senior criminal defence lawyer, provided a demonstration of best practices in opening arguments on appeal — both sides, including the Crown, as it turns out. That way, he really couldn’t lose. Everyone involved with the program met in person for the first time at this event and momentum leading up to moot day was already building. You can read more about this event on the “News” page of the Court of Appeal for Ontario here.

Mooting day was really something special to behold. Three courtrooms within the imposing and beautiful Osgoode Hall were filled with young lawyers, robed and ready to knock it out of the park — with their mentors right behind them, sitting physically behind them but also supporting and encouraging their efforts. One mooter commented on social media that the experience of participating in the program quite literally changed their life. Everyone was joyful and energized. By moot day, most participants had met each other and many had made plans to keep in touch in the future. Some even made plans to work together on selected projects!

The judges of the Court of Appeal and from the Superior Court and Ontario Court of Justice who presided over the hearings approached the exercise just as they do real appeals, clearly prepared and having reviewed the materials, posing incisive questions intended to probe the arguments presented. The justices gave the mooters personalized individual feedback on their performance and appellate advocacy. Their advice was invaluable for any lawyer. The event was truly unique in every imaginable way. No other program offers an opportunity to receive feedback on your advocacy in such a safe space that still looks and feels in every respect like an actual appeal in our province’s top court.

It was a career high for me personally to be one of the organizers of this program, together with my counterparts within the court, Anna Trbovich, staff lawyer in the Court of Appeal, and Dena Bonnet, Crown counsel at CLOC.

The program would not have been possible without the leadership and sustained support of Associate Chief Justice Fairburn. Everyone involved is already looking forward to the next time the program is offered to a whole new group of enthusiastic and awe-inspiring young talent. The administration of justice in Ontario has benefited from this wonderful tribute to and celebration of justice Rosenberg’s memory.
Anita Szigeti is the principal lawyer at Anita Szigeti Advocates, a boutique Toronto law firm specializing in mental health justice litigation. She is the founder of two national volunteer lawyer associations: the Law and Mental Disorder Association and Women in Canadian Criminal Defence. Find her on LinkedIn, follow her on Twitter and on her blog.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Photo credit / Vita Cooper

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