BWA: A conversation with Arif Virani

Yael Bienenstock (00:08:34)

Welcome to Breakfast With Appeal, Torys’ quarterly series on the cases you want to know about. We offer our thoughts on the appellate law that’s shaping Canadian conversations. Let’s dive in.

Andrew Bernstein (00:21:36)

My riffing can end right now because joining me is my now-colleague—my one-time law school classmate and my now-colleague—Arif Virani.

Hi, Arif. Welcome.

Arif Virani (00:33:23)

Thank you. How are you, Andrew?

Andrew Bernstein (00:34:12)

I'm good, nice to see you. Welcome to Breakfast With Appeal and welcome to Torys!

Arif Virani (00:38:07)

Thank you. I'm trying to position my mug strategically there to get maximum impact there.

Andrew Bernstein (00:42:34)

Yeah. I think, somebody left an extra one here.

[Laughter]

I'm going to bring, I’m going to get this all together. So, I mean, Arif is a former politician, you'd be a lot more comfortable in front of the camera than us nerdy lawyers.

[Laughter]

So we're, we're particularly happy that we've got a little talent that has now been brought to, to Breakfast With Appeal.

So, welcome to Torys. Welcome to Breakfast With Appeal. Let's start with an obvious question. What's your favourite John Hughes movie?

Arif Virani (01:06:57)

I’ll answer it this way: Bernstein? Bernstein?

Andrew Bernstein (01:11:39)

Alright! So, there you go, we’re in perfect agreement, it’s Bueller—

Arif Virani (01:12:35)

Bernstein? Perfect agreement, it's absolutely Ferris Bueller, yeah.

Andrew Bernstein (01:15:11)

Is it because you, like me, we're not quite cool enough to skip school?

Arif Virani (01:18:24)

Well, there may have been one French class that was missed in middle school, but [laughter], but I just love that movie for multiple reasons. Like the going to the Tigers game and the scene where the car, they've taken the car out for an extensive amount of time, they're trying to reverse the mileage. The sports car flies out of the window of the, of the fancy house.

Andrew Bernstein (01:39:03)

Cameron’s car.

Arif Virani (01:40:00)

Yeah. It's just, it's just a brilliant movie. The clothes they wear, that they wear when they show up at that fancy restaurant, like there's just—that's a seminal movie for any 1980s child.

Andrew Bernstein (01:47:24)

The Sausage King of Chicago.

Arif Virani (01:48:49)

There you go.

[Laughter]

Andrew Bernstein (01:49:19)

Yeah, exactly.

Okay, so, we promise—our promise was public law from the other side of the V, and the V in question is, like Drover v. Attorney General of Canada. So there you were, on the other side of the V. It must get annoying to be sued so often.

[Laughter]

Arif Virani (02:07:09)

It's, it's sort of a fact of life. People have asked me, “How often does it happen?” There's—at any time, there's about 40,000 cases involving the AG of Canada in the hopper. Thankfully, I don't have to get briefed on 40,000 cases in any one given year, but, there's people that work, work the cases up, and then they filter it up to me when they feel it's of significance.

But you try not to take it personally.

Andrew Bernstein (02:28:21)

Yeah, okay.

Arif Virani (02:28:42)

Cause I guess, I guess the way to approach it.

[Laughter]

Andrew Bernstein (02:30:14)

It's important, really. I mean, that's what we tell our clients. “Please don't take this personally.”

Arif Virani (02:34:04)

Exactly, exactly.

Andrew Bernstein (02:35:09)

Some do and some don't, I think it's probably the fair way to say it.

So, here's my first substantive question. According to the Department of Justice Act, one individual is the Minister of Justice and Attorney General, and one of your predecessors apparently referred to themselves as “MoJAG”—Minister of Justice and Attorney General.

We won't go into that, but can you talk about what the two roles are and whether they're really distinct?

Arif Virani (02:58:31)

Sure. So this is a, it's an interesting one, because it is a, a dual hat. And that is the case pretty much across the country in every jurisdiction, save for one, and first—so let's take the minister piece.

So, the Minister of Justice is a minister at the cabinet table who's surrounded by colleagues at the cabinet table. They are a political minister. They are responsible for things such as legislation that I was introducing, they’re a spokesperson for government. You engage in the House of Commons and with the Senate, you do other things that people will be familiar with, with the Minister's role, such as, you know, my responsibility in terms of recommending the appointment of judges, things that relate to matters that are very weighty, but sometimes don't get as much direct attention.

But the Minister of Justice is the final say on an extradition. The Minister of Justice is the final say in—we're in a bit of a gray zone, but in terms of how we deal with wrongful convictions right now. So making a determination to send something back to a first instance court or a court of appeal for a trial of an issue.

The Minister of Justice is also responsible for giving that legal advice to the cabinet and advising on Charter compliance. So that's really, really important.

Andrew Bernstein (04:03:51)

Interesting.

Arif Virani (04:04:29)

The AG is the Attorney General of Canada. So that's the chief law officer of the Crown, right? So, in that role, you are responsible for all of that litigation that we just talked about. And that's bifurcated between the criminal litigation and the civil litigation. You're directly responsible for, and make, final decisions on the civil litigation. But for the last 20 years or so, we've devolved and delegated down the responsibility over criminal prosecutions, for good reason, to somebody called the Director of Public Prosecutions through the Director of Public Prosecutions Act.

So that's a delegated role exercised now by George Dolhai, previously by Kathleen Roussel. And that's very, very important. And in the AG's function, you are not accountable to a government: you are accountable to the rule of law. And the actual oath that I swear got changed in last four, four or five years. And the oath now talks about in the capacity as attorney general to stand up for the independence of the judiciary, the independence of the prosecutorial function, the rule of law and the Constitution.

That is a very unique oath that I swore that the Minister of Tourism, Heritage, Finance, etc. does not swear.

Andrew Bernstein (05:09:06)

Fascinating.

Arif Virani (05:09:51)

Yeah.

Andrew Bernstein (05:10:20)

So, and I’m just—on a side note—

Arif Virani (05:13:38)

Yeah.

Andrew Bernstein (05:13:54)

The, this thing about the Director of Public Prosecution, is that, is the reason that's devolved to protect any allegation that there's been prosecutions that are politically motivated. Is that the reason?

Arif Virani (05:25:14)

That is absolutely it. And here's your non-partisan pitch. That is not a, an initiative that was initiated by my party, my party, the Red Party, that was the previous government that put, put in place that initiative. And that's really, really important because that's about standing up for the administration of justice in this country.

And I'll tell you how, how much it's resonated with people, is that we entertain delegations in Ottawa all the time. I specifically remember engaging with the Malaysians at a Commonwealth conference, and they actually came to visit us in Ottawa because they wanted to learn more about this DPP role, and how does it insulate the prosecutorial function, safeguarding its independence and ensuring that it is done in a manner that ensures that there's no actual or the appearance of political interference with the criminal prosecution, which would obviously be something of concern.

Andrew Bernstein (06:11:30)

Right. Well there's, I guess, a number of countries that, that could use that lesson. Some of them geographically closer to us than others. But—

Arif Virani (06:18:43)

I'll just, I’ll just keep going on Ferris Bueller at this point.

Andrew Bernstein (06:20:33)

Yeah.

[Laughter]

That's fair enough. Although you are out of office now.

Arif Virani (06:23:26)

Yes.

Andrew Bernstein (06:24:16)

So let's, let's switch gears and talk a little bit about this Attorney General role you were talking about. And particularly in the civil context, what would you say was the hardest decision or type of decision you had to make as AGC?

Arif Virani (06:38:08)

So I was thinking about this in terms of, sort of, preparing for today and there are definitely tough decisions in the AGC role. One is that it's just a bit tougher because you're independent in making those determinations, right? So if something comes across my desk and it's should we get involved in a matter that might be going to the Supreme Court of Canada, should we intervene? What should be the contours of our intervention? That is a rule for the Attorney General of Canada, full stop. Right? You make those determinations.

The difficult ones actually arise when you're dealing with situations that will be familiar to, to everyone who's watching. But, you know, government coffers are not unlimited. Your private sector clients, or if you're a GC at a particular entity, you've got a bottom line that you're looking after.

That's the same for the Attorney General of Canada. In the difficult decisions were when you needed to ensure that the decision you're making—whether it's a decision about settlement, or the decision about quantum—meets with the overall fiscal framework of the Government of Canada, which is in a bind, as we see right now. I mean, I'm sure everyone who's on this webinar also reads the news, etc., or listens to the news, and they know what the Government of Canada is seized with right now, it’s similar to many other governments.

So that was the tricky part. But when I really reflect on it, Andrew, I mean, I appreciate your question, but it's actually some of the decisions I had to make as Minister of Justice that were very directly related to human beings that were tough. And I'll go back to the extraditions and the wrongful convictions.

On an extradition, you're considering sending somebody abroad to face justice in a different jurisdiction, some of which you're familiar with, some of which you’re not really at all. You question the rule of law and the, and the, the independence of the institutions in those foreign jurisdictions, and that extradition has an impact on that person's family here.

And on a wrongful conviction, you're dealing with very significant matters that affect not just the person who may have been imprisoned unfairly and unjustly, but also the victim of that crime. And that's significant, because what you're saying to that victim of that crime is that you believed Person X was incarcerated properly because they had done wrong to you in your family, but in fact, the actual accused person, the actual criminal, is still at large—

Andrew Bernstein (08:41:32)

Right.

Arif Virani (08:41:39)

—and that has ramifications for people's lives. And those are the ones that I actually struggled with, in part because it wasn't something I could bounce off of the Minister of Finance or the Minister of Foreign Affairs. It came to me, I made the call, and that's where the buck stops. So it's, it's weighty. And it was significant, and I spent a lot of time on those cases.

Andrew Bernstein (08:56:42)

And even as, in your capacity as Minister of Justice, you can't, for example, in those decisions, you're not entitled to, for example, consult with the Prime Minister?

Arif Virani (09:05:00)

You are, you are meant to be the, the, the ultimate decision-maker, and that's, it's structured that way in part to insulate the Prime Minister.

There are certain factors that you're permitted to take into account. For example, in an extradition, you can look at the state of international relations, for example—

Andrew Bernstein (09:21:21)

Got it.

Arif Virani (09:21:36)

—between the nations.

Andrew Bernstein (09:22:51)

So the AGC is, as you said, the defendant when anybody wants to sue the government, at least in administrative and constitutional law and lots of type of civil cases. But I sort of had an understanding that the Department of Justice, they talk about their quote unquote “clients” sometimes and their instruction sometimes—

Arif Virani (09:41:55)

Yeah.

Andrew Bernstein (09:42:02)

—did you ever feel like you had to defend something that did not make you especially comfortable? And how do you square that circle?

Arif Virani (09:49:14)

Well, I think I mean, the most honest answer there is that I think when you've practiced law for as long as I have, I mean, you can't be a lawyer and not—it's a rare lawyer that can say they've been 100% behind every single position that they've needed to advocate in court or in documentation. So, this happens to all of us.

Andrew Bernstein (10:07:02)

Right.

Arif Virani (10:07:50)

Is it going to happen—did it happen with me as the Attorney General of Canada? There's certainly times when there was a, a, quite an iterative conversation with departments. I think what's important is sort of how you calibrate it. Understanding a lot of it was, yes, the Ministry, the Environment, the department of—we called it “Environment and Climate Change Canada”—might have been giving, you know, my DOJ lawyers instructions on a given file, but it's always, sort of, the iterative part of it is explaining to them, “These are the parameters, this is what is permitted in terms of the scope of law, this is what we can do, and these are the knock-on impacts it will have.”

So, I'll go back to that fiscal piece. If there was challenges, it was sometimes people seeing their issue and ministers defend their turf, just the same way a client will defend their turf or a company will defend their turf. So having the minister of a given department understand that if we settled that in this manner or take this position, it's going to jeopardize this energy file or this heritage file and having them connect the dots.

That was a key piece. And there was at times when I had to be sort of the shepherd. And it's a bit—it's a bit of a digression from your question, but it's still salient—where the Minister of Justice is also overseeing broad scale initiatives, such as what we're doing on Indigenous rights and Indigenous reconciliation, trying to shepherd 25 different departments together to move in the same direction on a similar sort of issue. That became a challenge, to, to be blunt, and sometimes put you at loggerheads with certain departments.

But for the most part, it was quite a working, quite a functioning working relationship because we all understood the broad agenda of the government and how that pieced together in terms of what we were trying to do. But there are times when you would knock heads a little bit, but it was always done behind closed doors, because that's what cabinet confidence is important for.

Andrew Bernstein (11:50:15)

Okay, so I once jokingly referred to Breakfast With Appeal as a one-hour infomercial for our ability as appellate counsel dressed up as CPD.

Arif Virani (12:01:44)

Yes.

Andrew Bernstein (12:02:30)

But the reality is that we litigate lots of, you know—all four of us litigate lots of, of public law cases, whether they're admin law cases or constitutional law cases at every level: at first instance and as well as at the appellate courts.

You've really had a crash course in public law defense to go on, to add on to your time as, as a public servant in Ontario in the constitutional law branch. So what did you learn? Tell us, our audience something you learned liti—about how to win a public law case that you didn't know before you were the Attorney General?

Arif Virani (12:35:54)

Well, it's a very good question, Andrew. And I think what I would say is that there's—winning a public law case is, can be challenging at times simply by virtue of the fact that you are dealing with matters, statutes, regulations that have a public interest imperative, and you're dealing with something that is somewhat unfair, which is often the court of public opinion as opposed to the court of law.

And what I mean by that is that you may think you've got a terrific case on—you've got great facts, you've got the law on side, and you're sometimes faced with externalities and factors that seem unfair or unjust, but are just part of the reality of, of where we live and what we do. And I would say to you that some of the things that I learned in terms of the role that I have just taken on is that winning the public law case sometimes requires you to navigate those externalities, including the comms exercise and public relations exercise, it sometimes requires you to be patient. There were cases of note that I don't need to necessarily go into, but, where we lost at first instance and won on appeal. So it requires that.

I think also winning a public law case, from my perspective as the Attorney General of Canada, it was honed by having a good understanding of what the Department of Justice lawyers were doing and why, and some of the challenges and hurdles that they faced. From the, from the competing perspective on the outside, even going up against government lawyers, I think understanding the opponent and understanding what's driving them is, is useful.

And I think it just really, you know—you guys just had the conversation about Drover—and just understanding what the statutory imperative is all about. Like, what's the rationale there? Right now, I was listening to your discussion, but, you know, I've dealt with the returning officers. Like, I've met returning officers in my riding in Parkdale-High-Park. And the reason why you have a returning officer who generally is situate in the riding is because they sometimes need to make very split-second decisions about the contours of the riding: where you put a polling station; how you deal with the accessibility; that seniors home, do they have a ramp? Can we get a polling clerk to go up to the person who's immobilized in their unit on the eighth floor?

If they're—if they live in Calgary and they're running an election in Ottawa, they probably aren't familiar with the contours of the demographics of where the seniors homes are and what are the disability or mobility needs. So there's a rationale behind these things, they aren’t just dreamed up. And I think being the AGC and being a constitutional lawyer with the Ontario government before that has helped me to understand some of those public imperatives.

And that, I think, makes, makes, provides for better analysis and ultimately better advice to clients.

Andrew Bernstein (15:07:22)

Yeah, and certainly the comms piece is interesting. It's, it's one that I would say our corporate clients think a lot about. Right? I mean, losing a case or bringing—the decision to bring a case, one of the things that sometimes goes into it is just the question of, “How are the optics if we lose this?” And I think that over my 25-year career, there's been an increasing appreciation by the corporate clients of, “Winning a battle and losing the war is probably not the right way to go here.”

Arif Virani (15:36:13)

Precisely.

Andrew Bernstein (15:37:49)

We talked about this a bit before. You've been in the business of defending government decisions, both from the public service as a member of the constitutional law branch in Ontario, and also as an elected official. So, you know, in, in the business of politics, what did you learn in politics about defending government and litigation that you didn't know from the public service side?

Arif Virani (15:59:25)

Well, I think the most important thing I learned is just sort of really understanding things from the other side. So if you, if you, if you sort of rewind the clock a little bit for 15 years, I'm advising people like Michael Bryant, Chris Bentley, John Gerretsen when they were provincial attorney general. And you sort of have your case and you provide your advice, and you break down the law, and you say how the facts apply to law, and you sort of send it into this ether and you're not sure sometimes why decisions get made about, “We're going to pursue it, we're not going to pursue it, we're going to settle it, we're not going to settle it,” etc.

And now I think I have a much more fundamental understanding as to the broader parameters that are at stake. Because I knew as the Attorney General and as the Minister of Justice that decisions that I was making might have an impact on my colleague who is the Minister of Foreign Affairs, or my colleague who's the Minister of Heritage.

So it's having that ability to step back and appreciate the macro. It's also a stronger appreciation of sort of the factors that I think everyone should appreciate that governments are under. It’s that there is this thing called an electoral cycle. There is this thing called a budget and the fiscal reality of government. And there's also a government mandate: the government has set out to do certain things, and they're trying to achieve certain things. And it’s trying to understand and appreciate all of that. And I think the way that would resonate for people that are, that are watching is just that it's really important to not remain in your silo and think about, well, if you're dealing with your issue that relates to your company, your bank, etc., think about how it impacts upon the bank's strategic plan or upon the company's competitors or not, or the company's expansion plans.

That's that sort of macro, sort of big picture perspective that I think really, really helped, in terms of sort of me getting that broader picture.

Andrew Bernstein (17:35:39)

Interesting, I mean, I think one of the things that we hear a lot from our, our clients who are in-house counsel is that navigating the big picture is, you know, the most challenging part of their job.

Arif Virani (17:48:25)

Yeah.

Andrew Bernstein (17:48:49)

If they're not, they have outside counsel to deal with kind of the specific legal issues, but that trying to figure out how all of the pieces of the puzzle fit together is really the biggest challenge that they face.

So I'm just wondering is—you think that they could call you if they needed some advice about that? Like do you think that you, your time in government would be instructive to how to do that in a company?

Arif Virani (18:11:42)

I think, absolutely.

Andrew Bernstein (18:12:40)

Yeah.

Arif Virani (18:12:45)

It's also, I mean, one, one key piece to, on the litigation side in particular, is who the claimant is: like who’s the applicant, who's the plaintiff, who's bringing the case? Because there are different perceptions about different types of claimants, right? So we had difficult cases without going into too much detail about, you know, a set of government employees, or a set of a group, or a given demographic in this country bringing claims against the Government of Canada, sometimes are very costly. How you deal with that case is not just about the bottom-line dollar amount, but it sometimes relates to who the actual claimant is. And in the world that we're in, in the last, you know, 10, 15 years with respect to social media and how things, how messages move through Canadian society, it moves fast.

And sometimes there can be reputational hits, and repercussions for companies or governments that were unknown—not unknown, but were less impactful in the 1980s. And now they can happen, you know, very rapidly with very dramatic consequences.

Andrew Bernstein (19:07:38)

Yeah. I mean, I will say that I've come across the odd reputation management company. It—mostly in the US, to be honest, I don't know that the, the, the practice is as sophisticated. And sometimes I've, I actually once encountered a lawyer and she said “My practice is reputation management. That's what I do.”

Arif Virani (19:26:25)

Right.

Andrew Bernstein (19:26:41)

So it's some kind of defamation stuff. But overwhelmingly it was things from behind the scenes. So, there's another one where there's value to be added.

Arif Virani (19:35:53)

Yes, I think so, for sure.

Andrew Bernstein (19:37:52)

So Arif, I think anybody who's ever litigated knows that one of the hardest, worst parts of that line of work is losing—

Arif Virani (19:48:18)

Yeah.

Andrew Bernstein (19:48:25)

It happens to all of us, and it's just a terrible feeling. Can you talk a little bit about what happens in government when it loses a case? And like the, the theory is that the, the Attorney General is a law officer of the Crown and doesn't care about the outcome, as long as it's fairly presented. But is that actually true?

Arif Virani (20:07:02)

No.

Andrew Bernstein (20:07:37)

Okay.

[Laughter]

Andrew Bernstein (20:09:29)

Shocker!

Arif Virani (20:09:58)

Yeah, shocker.

Andrew Bernstein (20:10:56)

Yeah.

Arif Virani (20:11:10)

But I'll tell you what, what is true, I mean, we all have gone to law school, we've all passed the bar, we all did our training on ethics, in particular in terms of the rules of professional conduct, etc. Things like sharp practice never being countenanced apply ad infinitum when you're at the level of the Attorney General. Things like the honour of the Crown layer on to sort of what you're doing, particularly with respect to certain clients. So, think about Indigenous files, Indigenous litigation.

So that's there. Do we like losing cases? Did I like losing cases? No. No one likes losing cases. But I think, and I'm going to zoom out here a little bit here, I think what's really important is, I'm very proud to have served in a government and to have served a country where the respect for the rule of law is at the level where, notwithstanding the fact that there might be discontent or upset with respect to a given court decision when it's rendered in particular by the apex court of the land, what you do in the rule of law democracy is you implement the decision.

Andrew Bernstein (21:05:53)

Right.

Arif Virani (21:06:17)

That is a good thing. And I'm saying this quite deliberately, because we are seeing that very foundational precept for Western democracies suddenly being eroded. And sometimes not so subtly. And I think that's important and something to watch for. But I think the other key piece is that, it relates to something you asked me earlier, is that your job as, sort of, like the lawyer around that table is to basically help make it understandable to the non-lawyers, and help them understand, “This is the consequence. This—perhaps, it’s a Court of Appeal decision. Well, here are our roots. This is what a leave to appeal application would look like. This is a right of appeal. This is how long it would take to be heard by the Supreme Court of Canada.” Conversely, if it's a decision of the Supreme Court of Canada, “This is what we need to do to implement it.”

And that has real world consequences in terms of, sort of, things that relate to—if there's a decision in a constitutional matter, you and I are both big fans of the, of the Charter and all of the jurisprudence therein, but when there's a decision that's rendered and there's something like a suspended declaration of invalidity, the clock is ticking.

Andrew Bernstein (22:00:42)

Right.

Arif Virani (22:01:00)

So then you have to have like an educative discussion with the Government House leader, say, “This is what the clock ticking means. We need to table legislation by this point. Get it through two houses of Parliament and off to Royal Assent by that point. If not, we are offside of the decision and we have a lacuna in the law.”

And that's your role as Minister and as the Attorney General, is to, sort of, walk your colleagues through that so that all systems understand it. But losing is never particularly well received. But it is a part and parcel of—obviously something that you and I know a lot about and perhaps many of the viewers—but that dialogue theory that Peter Hogg talked about for so many years between Parliament and the courts.

Andrew Bernstein (22:36:11)

I mean, one thing that has always struck me about those suspended declarations of invalidity is that the courts are almost deliberately, kind of, not that well informed about what it means to bring legislation through Parliament. Right?

Arif Virani (22:52:03)

Yeah.

Andrew Bernstein (22:52:17)

And I think until you've actually been there and tried to work through it, it's very hard to understand—

Arif Virani (22:56:47)

Yeah.

Andrew Bernstein (22:57:01)

—just how onerous it can be to bring legislation through to Parliament. Have you—did you ever feel like we as lawyers should, should know more? That we as lawyers should, you know, that we've got this kind of—we deal with law most of the time as it exists, right? And we take it for granted. Law exists, it's been passed. Do you feel like there should be a little more process taught as part of legal education, or that we as lawyers have a responsibility to inform ourselves a little better? About what the heck the inner workings of, of Parliament look like?

Arif Virani (23:30:41)

I would say, vociferously, yes, absolutely, I think that could only benefit. People need to understand the difference between report stage in the House of Commons and what happens when you go off to the Senate. They need to understand the timing that it takes, but they should also understand that parliamentarians are humans: the Minister of Justice is a human being, and sometimes people can work very collaboratively if there's a, there's a real time pressure.

So I'll give you a case in point. We had a situation where the Supreme Court of Canada struck down the sex offender registry.

Andrew Bernstein (23:58:00)

Yes.

Arif Virani (23:58:20)

And because of overbreadth with respect to certain parameters of it. There was a general consensus—and there wasn't a lot of consensus in the last couple of parliaments, but there was a general consensus that the sex offender registry helps keep Canadians safe, particularly people that are being, suffering from predatory behaviour by, by, by sexual predators. So we worked in concert quickly to meet the Court's deadline, and there was a lot of cross-party cooperation there.

So it can move quickly when it needs to, but I think every lawyer on this call, everyone who's watching this webinar would benefit from the advice that they can give their own clients, whether it’s their company or their external clients, from understanding that when Minister Carney—Prime Minister Carney's government introduces a piece of legislation, this is the likely horizon. This is when it may come, come to pass, and then there's even a coming into force date, right? A proclamation date.

So even having it signed by the Governor General doesn't mean it's proclaimed into force. Even that can be delayed. That's important for people to understand because it rounds out their understanding of the legal system, and improves their advice.

Andrew Bernstein (24:56:45)

Yeah. I mean, we never—as Canadians, we watched the American [laughter] “How a Bill Becomes a Law” on cartoons on Saturday mornings. But there is no kind of Canadian equivalent—

Arif Virani (25:05:00)

Well, maybe that should be the next BWA session. We should have a session on sort of like the sausage-making that is making, making legislation in Canada.

Andrew Bernstein (25:12:34)

I don't know, Janelle, do we have budget for that kind of animation?

[Laughter]

Alright.

Arif Virani (25:16:55)

We could do it in Ottawa, it would be fun.

[Laughter]

Andrew Bernstein (25:19:17)

Okay, so last I'm going to—oh, well, sorry, I do have one question which goes back to the question of losing, which is we've all had these uncomfortable calls to our clients where we say, you know, “The Court’s decision has come out and it didn't go the way we were hoping.” Did you ever have to make one of those calls to the Prime Minister? And did he ever threaten not to pay the bill?

Arif Virani (25:39:27)

Yeah.

[Laughter]

So the, these kinds of situations arise and I'll just say totally candidly with you that because of the way communications and public relations operate in Ottawa, if there's a big case that you lose, usually the Prime Minister's office is calling you before you have a chance to call them, right?

Andrew Bernstein (25:54:03)

I understand.

Arif Virani (25:55:10)

But again, it goes back to the things that I was talking about, that your job at that point is to explain “This was a first instance decision about medical assistance and dying, this was a Court of Appeal decision about some other matter, this is a Supreme Court of Canada decision, and this is the impact it's going to have, and it's going to have that impact quickly or not so quick.”

Understanding the difference between a reference and advisory opinion versus a, versus an active piece of litigation is also part of that educative exercise. So, it happens all the time. It happens to the best of us. In your job, I think if you're doing your job well, I mean, the reason why a prime minister taps you—and they've only ever tapped lawyers for this role, thankfully, that's a good thing—is that you have the legal acumen and legal skills to provide that advice, including on a very timely basis. And that's what I tried to do to the best of my ability.

Andrew Bernstein (26:39:04)

Yeah, that's, that's really important.

Arif Virani (26:40:56)

The... one should never lose sight of the fact that government and traditional lanes of jurisdiction between the province and the feds has been the bread and butter of, sort of, constitutional work for well over a century and remains salient on a number of fronts and will continue to do so, particularly when you’re seeing challenges between federal exercise of jurisdiction versus provinces, some of which are less cooperative, some of which are less cooperative, some of which are more cooperative. I mean, that's a dynamic relationship itself.

Andrew Bernstein (27:04:33)

We never miss a federalism case on Breakfast With Appeal—

Arif Virani (27:07:35)

Good!

Andrew Bernstein (27:07:51)

—you heard us talk, you heard us, you heard me describe David as “Mister Negligence”. We sometimes call Yael “Missus Federalism”—

[Laughter]

Arif Virani (27:14:55)

Excellent.

Andrew Bernstein (27:15:11)

—because she is an absolute federalism expert and kind of seems to know all the cases—

Arif Virani (27:20:10)

Excellent.

Andrew Bernstein (27:20:42)

—apparently by memory. Okay, so I want to talk for one minute about judicial appointments. You made a lot of judicial appointments.

Arif Virani (27:27:38)

Yeah.

Andrew Bernstein (27:27:57)

Thank you on behalf of the Bar for making so many judicial appointments.

Arif Virani (27:30:45)

You're welcome.

Andrew Bernstein (27:31:37)

Judicial appointments are fundamentally a game of prediction: who's going to serve the public with integrity, humility and intellectual rigor? And this is, I think, a hard prediction to make. How did you approach that?

So it's a, it's a tough question. And what I'd say to you is that, with a lot of assistance, right? So I had a team—a ministerial team, I had a departmental team. I relied heavily on the judicial appointments committees, I made sure that they were all up and running.

I inherited a tough situation. About 90 vacancies. By the time I left, there was 13. 99% of spots around the country were filled. So the fastest rate of appointment in Canadian history by any minister. And I'm very proud of that. But I didn't do it alone, right? Yes, I was dogged. I was pushing constantly. We made some tweaks into the system in terms of, like, security clearances, how fast they were dealt with. Like—I'm not making this up, but, you know, if you were applying to be a low-level administrator at the Halifax Port Authority and you were trying to become a Court of Appeal judge in Alberta, your security clearance traveled on the same track. I put a stop to that.

Andrew Bernstein (28:26:26)

Right.

Arif Virani (28:26:49)

So there was a triaging that occurred. But, but to answer your question directly, the judicial appointments committees helped me with that assessment. And I will just emphasize again to everyone on this call that, don't discount how you are held by your colleagues at the Bar and people at the bench before whom you have appeared.

That is very, very important for us because that helps us to really get a sense of the integrity, the repute, your credibility, your legitimacy. And then you make a decision, and you stick by it. And I'm proud to say that not only do we appoint a ton of judges, but they are great minds who also represent the diversity of the country.

And I've never heard sort of a word about, “Well, we're not sure about that one, Virani.” For the most part, it has been uniformly about, “Thank you for making those appointments and shoring up Canadians’ confidence in the administration of justice.” And that's what, definitely, I looked for. And unfortunately, because of where we are with litigation and access to justice, another key piece for me was considering how people would deal with self-represented litigants who appear not just at first instance courts, but also in appellate courts these days.

Andrew Bernstein (29:28:14)

Oh, completely fair. Completely fair point. And when I've, when I've done some of those jack references, I always get asked that question. How’s this person likely—do they have the patience to deal with a self-represented litigant?

Arif Virani (29:39:26)

Precisely.

Andrew Bernstein (29:40:04)

You know, not—most judges do. Not all judges do.

Arif Virani (29:43:16)

Yeah. And some of the soft skills, which are just human skills that I think we all need to cultivate. So yes, we want you to have a big brain, but we also want you to be personable and really represent the system. Obviously, I was representing the system at an apex level nationally and internationally, but judges are the face of the law for people that walk into the courts, and I think you need to appreciate that and demonstrate that, and that bodes well for any applicant.

Andrew Bernstein (30:05:29)

Nice. Okay, so last question before we wrap it up. Running for office is a bold move for—especially, you know, if you've been working in the public service, you really have to put yourself out there. What would you say to people who might be interested in public life but are wondering if they have the nerve, the skill set, the patience, the popular touch?

Arif Virani (30:25:03)

[Laughter]

I would say if you're thinking about doing it, do it. Like anything, if you want to be a dentist, go talk to a dentist. If you want to potentially be a public servant serving in elected office, go talk to people that are already doing that.

It is extremely rewarding. It is extremely gratifying. It is difficult. It is onerous. It is hard on you and your family. But the upside is gigantic in terms of what you can achieve for your community and for your country, I think there's absolutely no higher calling. But it is not for everyone, but for those that are keen to do it, I would say, “Embrace the idea wholeheartedly.” Even if you're not successful, just the process itself can be such a valuable learning experience.

And I've only been amazed by what I was able to do, whether that's being myself, a Ugandan-Asian refugee, and one of the first things being asked to work on is settling 25,000 Syrian refugees, to protecting Indigenous rights to Indigenous language legislation, to ending up as the Minister of Justice and promoting access to justice through legal aid funding, looking at how we deal with medical assistance in dying, dealing with the judicial appointments, you can make such an impact, it is incredible.

So, consider it. Think about it. Reach out to people that have served in office, including me. Happy to have those, kind of, mentoring chats with people.

Andrew Bernstein (31:34:22)

Okay, well, thank you for being here, and of course, thank you for being here! We're looking forward to—we're delighted that you've decided to join us. And we're looking forward to working on our first case together.

Arif Virani (31:43:35)

Thank you. I'm excited to be on this, this platform. And now I've got a new mug, too, which is awesome!

Andrew Bernstein (31:48:00)

Exactly.

[Laughter]

Alright, thanks Arif, take care.

Arif Virani (31:49:37)

Thank Andy.

Andrew Bernstein (31:54:00)

That about wraps up our conversation. Before we go, I want to remind our listeners that they can find the webinar version of this edition of Breakfast With Appeal, along with previous episodes, on torys.com, and that our BWA program is eligible for one substantive hour of continuing professional development.

Thanks again for joining us and take care.