An inspiring conversation about role models, volunteerism, mental health in the legal profession, almost giving up in law school, and Elton John.
Justice Mahmud Jamal of the Supreme Court of Canada in conversation with CBA President Stephen Rotstein.
Links:
Spider Woman by Lady Hale | Penguin Random House Canada
Put Your Best Into Everything You Do with Justice Mahmud Jamal
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[Audio]: This is conversations with the president presented by the Canadian Bar Association.
Interviewer: Hi, I'm Steven Rothstein, president of the Canadian Bar Association. Welcome to my final episode of my podcast series conversations with the president. My focus during my term as CBA president has been on raising awareness and removing taboos surrounding mental health and wellness. And highlighting the value of volunteerism. Not only to society at large, but also for oneself. If there was a recurring theme, it has been lawyer’s resilience in the face of seemingly insurmountable obstacles, and where to find the inspiration to keep going. I can think of no better helping hand to reach out to for guidance in the current legal profession in Canada than my guest today. It is a great honour both for myself and for the CBA to welcome you to the podcast, Supreme Court Justice Mahmud Jamal.
Respondent: Thank you, Steven.
Interviewer: You are appointed almost a year ago, today or in this month. I think
Respondent: It's one year 21 days, Steven.
Interviewer: Not that you're counting. Is there a countdown?
Respondent: Well, it's easy because it was July 1, and it's the 21st today that we're recording this year and 21 days.
Interviewer: I started my term as CBA. President, one of the first things I did was being part of your welcome ceremony, which is a career highlight of mine. And one of the last things I'm doing is taping this podcast. So it's book ended, my term is CBA president. So there's a lot of things to speak to you about. So I'm just wondering, you are a role model to many young lawyers, and including myself, it's not a young lawyer anymore. But I'm wondering, who are your role models? Where do you find your inspiration?
Respondent: Well, Steven, first of all, it's a great pleasure to be here and to be participating in your podcast. I've been very fortunate. I mean, my parents were obviously my first role models in terms of teaching me the value of hard work and the importance of education. So that was obviously foundational for me. But I was very fortunate, I think, throughout my pre-University schooling, and then my university education to have had great teachers. They were enormously influential and gave a lot of guidance and a lot of mentorship throughout the years. I can think of many professors in law school. But particularly the late Patrick Glenn, for whom I was a research assistant.
Was a great mentor, a great comparative lawyer. And then I think the judges I clerked for, Justice Rothman at the Quebec court of appeal. And Justice Gaunthier, the Supreme Court. They're very different people. But both had profound respect for the rule of law for judging for Canada. So I think they were both in their own ways, very important as mentors in terms of setting the direction for the sort of lawyer I wanted to be. And then when I was a lawyer, I mean, I was just enormously fortunate. I had great people at various different points in my career, who provided guidance. The person I worked with most in the early part of my career was Edgar Sexton, late Edgar Sexton, who went on to become a judge, at the Federal Court of Appeal.
And he was enormously important in the early years. And then, even when he became a Federal Court of Appeal judge, continued to provide friendly guidance and mentorship. And then there was a series of people I was exposed to as a young lawyer, the Honourable Edward Saunders retired from the Superior Court and joined the firm I was at. And he introduced me to others, including Peter Quarry, who also joined the firm. And the two of them were just a couple of doors down from me. So they were people who were obviously had a wealth of experience and perspective to give. And were just very generous with their advice and their experience.
And then later on, there were people like Marshall Rothstein, who when he retired from the Supreme Court I worked with. And Ian Binnie I worked with on many occasions. And then there were people who I didn't necessarily work with. But I look to for inspiration, and still look to for inspiration. People like Beverly McLaughlin, and Rosalie Abella. And then when I was at the Ontario Court of Appeals, which has so many people that were great colleagues and great mentors, I can't name all of them. But I mean, Chief Justice Strathy, Justice Sharp, Justice McPherson, Justice Doherty, Justice Watt, Justice Feldman, the list goes on and on.
They're just extraordinary people to learn from. So I've just been very fortunate at every stage of my career, I've had great mentors. And they've really taught me a lot.
Interviewer: Quite the list of individuals who you've engaged with during your professional practice. And it does, obviously talk about the importance of role models, and mentorship. As you may have heard me talk about one of my priorities during my presidential year is talking about the value of volunteerism. And it's something you've obviously shown throughout your career. So I want to talk to you about your time as pro bono counsel with the CBA. And as well as your work with the Canadian Civil Liberties Association, as well as the Federation of law society, where you did some pro bono work. What motivated you to take on those various responsibilities?
Respondent: Well, I started doing pro bono work in law school, like many, I volunteered and legal clinics and represented students before University and internal administrative bodies. And then when I became a young lawyer, I started doing pro bono work, whether it was representing individuals who needed representation for the courts, or administrative tribunals or giving legal opinions. And a lot of that work was really under the radar, it wasn't impact litigation, it was helping a particular individual or organisation or giving a legal opinion or doing research. But after a certain number of years, in practice, I thought there might be an opportunity to make more of an impact in terms of participating in test-cases.
So I think probably, after about seven or eight years of practice, and having done a lot of this sort of volunteer work that was under the radar, I started doing work for organisations like the CBA and the CCLA. And people wonder, well, how do you get to work for the CBA or the CCLA? Well, in my case, I just called up said there was a case I was interested in, representing the CBA in and I call Tamra Thomson, at the CBA, who I'm sure very well. And she was enormously helpful, enormously receptive, and I was still a relatively young lawyer. And thinking, well, how can I possibly get the opportunity to represent the CBA? Well, if you show initiative and you do a well prepared, well thought out proposal, you might get the opportunity.
So I did get an opportunity to represent the CBA on a case dealing with solicitor client privilege, and then represented the CBA and a few other cases in there in the next 15 or so years. And the same thing with the CCLA simply called up, Alan Borovoy, the late Alan Borovoy, who was the General Counsel at the CCLA at the time, and the rest is history. I think you have to show initiative, nobody's going to give you an opportunity, you sort of have to take initiative. For me, it was very fortunate that I was given opportunities to present arguments on cases that I cared about.
Interviewer: What was some of the biggest challenges you faced in those cases? And looking back, I mean, if it's easy to say, what was a success story you've had many in your career, but is there one that you think you just feel proud of, you were able to get a certain result or achieve a certain part of a decision?
Respondent: Well, I think in terms of challenges, I think every young lawyer feels a certain degree of impostor syndrome when they take on a new role. And appearing before the highest court in the land… I was reading recently, Baroness Hale’s recent memoir Spider Woman, where she starts the book by talking about her imposter syndrome. And here we are the president of the UK Supreme Court, the highest judge in the land. And she starts her book by talking about imposter syndrome that she experienced at every stage of her career. So I think there's inevitably – in terms of challenges, I think, many feel a certain degree of being out of their depth early on.
When you walk up to the podium in the Supreme Court of Canada as a lawyer, and you see nine people peering down at you, you feel a certain degree of impostor syndrome, but then hopefully, your preparation and hard work overcomes that pretty quickly. And usually once the flow of arguments starts, that's overcome. So I think that's the biggest challenge is just feeling out of place and wondering, am I really ready for this? Am I really up for this? But again, I've learned and Baroness Hale in her memoir, which I highly recommend, to anybody who's listening, talks about the role of hard work and preparation. About how that's the only way to overcome a sense of lack of belonging or not being prepared.
So that was the way to overcome that. And success stories. Well, I think sometimes you it's great when you win a case, it's great when you get cited and a judgement of the Supreme Court. But I think you learn the most when you lose. I think learning why your argument wasn't picked up, why you didn't manage to attract the judicial mind to your perspective, is really where you learn. It's when you when you don't succeed. I've been fortunate. I've had lots of losses, and lots of things to learn from.
Interviewer: Of course, it's always better for your clients if you win.
Respondent: Yeah, of course, you always want to win, but sometimes the facts are such that no matter what you do with the case, you're not going to be able to turn a court. But and sometimes the legal proposition you're advancing is too much of a stretch. But advocacy does make a difference. It's not to say that you can't take a tough case and make it digestible for a judge. But sometimes that's not possible.
Interviewer: I'm wondering where you see the need for volunteers with legal training going in the future? Is it more pro bono work, are there other areas that you see lawyers using their legal skills and helping society?
Respondent: Well, I think whether an individual lawyer decides to do pro bono work is very much a personal decision. But I certainly found it enormously valuable. It gave me perspective on the work that I was doing in a large firm. It got me out of the office. It connected me with the community. It connected me with people whose lives were very different than the corporate clients I was representing, in my regular practice. So I think it's enormously valuable in giving you perspective, and giving you a sense of gratitude for the great advantages that we have in the legal profession. For reminding you that the law is a service business. Of course, you get that sense, in your regular work - I certainly got that sense.
But it's a quantum difference in terms of the gratitude that somebody who's not being paid. And when they tell you how grateful they are, it just has a deeper significance, and a deeper resonance and a deeper importance to you. So I think being of service to other people is enormously important. It has, obviously societal benefits, but it also has benefits for the individual who's providing the service. So I think all those things are valuable. And approaching pro bono work with a spirit of humility, with a spirit of gratitude is valuable. There are so many areas where you can provide pro bono assistance. So I think it's just a question of finding what your passion is, and then exploring it.
Interviewer: I want to talk to you about another one of the priorities I have as CBA president this year, and it's talking about mental health and wellness. It's a huge issue within the legal profession. It's truthfully a huge issue within Canadian society as a whole. And there's a lot of taboos around mental health that continue to this day. If the pandemic has had a silver lining, perhaps it's that it has helped raise awareness of this issue. So I'm just wondering your thoughts on how we can kind of remove some of the taboos surrounding mental health in the legal profession?
Respondent: Well, I think we can look to the example of former Justice Clement Gascon is gone and Chief Justice Strathy when leaders of the profession speak openly about their own struggles and about their family’s struggles. I think it normalises the fact that there is pervasive mental illness, not only in the legal profession, but in society. Mental health is something that we should all be concerned about whether or not we suffer from mental illness. And so I think people in senior positions in the legal profession talking about it openly, without stigma with understanding with compassion, and seeking to educate. It's enormously important. I'm sure you saw the article in the newspaper last week, things like that are enormously important.
And the speeches that Chief Justice Strathy has given - have been powerful. And similarly with former Justice Gascon openness about his own experiences. I think it's enormously important. And normalising of the fact that it is normal to struggle with mental health issues. It doesn't mean you can't be an active, high performing member of the legal profession or the judiciary. So I think that's been a watershed in our profession anyway. People of that calibre speaking about these issues are important.
Interviewer: Yeah, just for the benefit of our listeners, the article that you're referring to was a Globe & Mail article, which interviewed Justice Strathy and former OBA president Orlando da Silva, among others, talking about mental health and wellness within the legal profession. And I think the headline or one of the comments that resonated with people was obviously Justice Strathy talking about lawyers and we need to get past the gladiator mentality. The visual, I think we all can get a sense of what that looks like. So yeah, I'm hoping that that article, as well as obviously our conversation today, and the words that Justice Gascon has said on his challenges with mental health, do resonate.
And people realise that they're not alone, and they shouldn't be ashamed and they should seek the help that they need. Mental health is not just mental health, it's just about wellness and about gaining perspective. And I'm wondering you, obviously, throughout your career have had difficult cases, some you won as you mentioned, some you learned from but you lost. How did you kind of regain focus from whatever happened and prepare for the next challenge?
Respondent: I think everybody has their techniques to try and move on from a loss to the next case. It helps to be busy when you're in practice, because then you have another client’s problem or another client’s case to address. So I think trying to put it in perspective, and moving on to the next challenge. At the end of the day though, the more time you spend on a case and the more you invest of yourself in the case, I think the reality is, the longer it's going to take to overcome a loss. That was certainly my experience. If I - I had cases where I spent over a decade litigating an issue and then losing. And if you think you're going to get over a loss like that in a week or a few weeks, well, that wasn't my experience.
It takes months, if not more, to overcome that. But I think time, perspective, exercise, frankly, helps with your sense of wellbeing. Being outdoors, a loving family. Time with family and friends, all those things, I think, help put things into a longer timeframe and give you a perspective. But at the end of the day, you have to move on. And it isn't a personal failing. If you put your best into the case, if you put your best into everything you do. That's all you can really ask. And that's all your clients can ask of you.
Interviewer: Just along this topic, and you talked earlier in our conversation about impostor syndrome, but I'm wondering how you - you mentioned hard work and preparation, and maybe that's the answer. But how have you dealt with any self doubts that you've had throughout your career? How do you rise above it?
Respondent: Well, the most important thing is, is endurance. I mean, you got to still be standing. Like the lines from the Elton John song, you got to still be standing at the end of the day. So you've got to just endure. I mean, I tell law students that I thought about dropping out of law school in my first year, because I thought it was too hard. I didn't know if I had the wherewithal to do the 100% final exams at the end of the year. So lots of people feel that, and it's normal to feel that. But at the end of the day, you've just got to keep going. But I think many challenges, at least in my experience, can be overcome. Those sorts of challenges anyway, can be overcome just by working hard, just doing your best at the end of the day.
If you do your best and you put your most into the task and into the role, then you can't be too hard on yourself if you didn't measure up to your own standard. I mean, the article that you mentioned from the Global and Mail talked about, I think it was Chief Justice Strathy, or maybe it was just as Gascon, talking about the pernicious effect of perfectionism. Well, it's a great strength of lawyers to be perfectionists, but it's also a great weakness. And so finding that balance and finding how to wrestle with the demons of perfectionism is something that we're all challenged to deal with. So I think at the end of the day, you just do your best and just work hard. I mean, I think that's been my experience. And as I said, that's the advice of Baroness Hale as well.
Interviewer: I think that's great advice. And I hadn't heard the story that you had almost dropped out of law school, which again, thank goodness you didn't. Did you always know you wanted to be a lawyer? I guess at some points, maybe you weren't 100% sure. But did you know early on that this is a career path that you wanted to follow?
Respondent: Think when I was about 11, or 12, my - one of my teachers, actually my Latin teacher in the UK told me that I should become a barrister. And I didn't know what a barrister was. But I like the sound of the word. So I thought, well, that might be interesting. And I learned a little about the law. And would go to the Old Bailey when I was in London and watch cases. And then when I was in undergrad at U of T, I'd go to the courts on University Avenue and occasionally sit on cases. But I never really thought about becoming a lawyer. I was doing an economics degree, and thought I wanted to become an economist. And then, at the end of my degree, I applied for some jobs as an economist before going to do graduate school, I thought in economics.
And it was at the beginning of a recession in Canada. And so jobs were scarce. And it forced me to reconsider. So I thought about, well, maybe I'll do a professional degree. A lot of people were thinking about going to law school. And the more I learned about the law, the more I thought, well, this might be something I could do. And so I applied to law school, and but for a real challenge in my first year, when I had, as I said, some self doubt as to whether this was the right thing for me, I really loved the law. So I was very fortunate that I found something that I could really drive a lot of intellectual and personal satisfaction from.
Interviewer: And at what point in your career did you think maybe you wanted to be a judge?
Respondent: Well, when I was clerking for Justice Rothman and Justice Gonthier, seeing the judge every day, and exposing you to judicial life and their, how they approach legal issues, was certainly something I thought, well, that might be interesting one day, if I could do it. But then I became a lawyer. And as a young lawyer, you're just focused on the task at hand. You're focused on getting through your - at least I was - getting through my first year and then getting through my first experiences. And then having a family and raising children. So the idea of becoming a judge is something very distant and very unattainable. But I think as I approached 50, I started thinking, well, what do I do?
Do I - was a bit of a fork in the road. Do I continue doing, what I'm doing, which I really enjoy? Or do I try and start a career as a judge? So I think it was about after about 20 or so years of practice that I started thinking about what the next phase of my career might look like.
Interviewer: I mean, obviously, you had clerked. So you had a good sense of what it was to be a judge. But did you - were there any great surprises?
Respondent: Well, it shouldn't have been a surprise. But I was struck by how hard judges work. I mean, it is a tough job. Shouldn't have surprised me, but it did. And I don't know, I think when you're a lawyer, even if you've seen judges work by being a law clerk, I think the actual demands of judging and writing and of preparing, and researching and so on are difficult to really grasp until you've done it. It was for me anyway. In practice I had breaks in between cases. I would finish a large case, and then I would have a bit of a downtime for a little while. And then - you do have downtime as a judge, obviously, but it's not - but there's always - you don't have to go out and get new business. I mean, this –
Interviewer: It comes to you.
Respondent: Exactly. So drinking from a fire hydrant, that's what being a judge is like all of the time. And it is hard work. It's hard work for me anyway, writing, preparing thinking are all difficult tasks for me. And so I think the idea of being a judge, and then the reality of it are different things.
Interviewer: You are a role model to young lawyers. So if you had advice for them, and you've given various advice throughout this conversation we've had, but for those who want to be lawyers, or for those who want to be lawyers, who may want to be judges, at one point, is there any advice you would have for them as they plan out their career?
Respondent: Well, first of all, I would just stick with it. It's a difficult profession, especially in the early years. I think getting your grounding in the profession takes time. And you have to overcome some of the teething pains that every young lawyer experiences. Learning how to do a book of authorities or a back sheet and all these little things that are - that they don't teach you how to do in law school. And learning how to deal with difficult counsel opposite. You've got to just keep moving. And stick with it for the first while before you really have a sense of whether this is for you. But then I think doing some of the things that I've spoken about already, getting involved in the legal community, whether that's through the CBA, or other public interest groups, or communities within the legal profession, are very important and great sources of support.
They get you out of the - out of being behind your computer where you can sometimes get cabin fever if all you do is bill hours and work for your paying clients. I think you get a very narrow view of the contribution that you can make as a lawyer. So I think the broader the experience that you have, the more you write, the more you speak, teach. Those opportunities come to you naturally, the longer you are in the profession. And the more you seek them out, frankly. So I think having a well rounded professional life and maintaining a personal life and trying to maintain an equilibrium, of course, will make you a happy person and a fulfilled lawyer.
Interviewer: Oh, that's great advice and a great way to end this podcast. But I will leave you - the floor is yours. Is there any other - anything else you'd like to share with our listeners? Always give the judge the last word.
Respondent: Well, I just want to thank you, Steven, for this opportunity. And thank you for speaking at my welcome ceremony. As you said it's bookended your year as CBI president, it's also bookended my first year as a judge on the Court. So thank you very much.
Interviewer: Thank you again for coming and being on my podcast and obviously for the great work that you're doing on behalf of our country at the Supreme Court of Canada. So thanks for your time today. And good luck in your deliberations in the future.
Respondent: Thank you very much.
[Audio]: This is conversations with the President presented by the Canadian Bar Association.
Interviewer: If you enjoyed this episode, please share it with your friends and colleagues. And if you have any comments, feedback and suggestions, feel free to reach out to us on Twitter and on Facebook. Subscribe to receive notifications for new episodes, and check out our coverage of Legal Affairs at nationalmagazine.ca
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