28 Seconds

by Michael Bryant

  Not surprisingly, I didn’t make many friends, at least at first. I had a lot of free nights in my basement suite in the High Park area. I spent a good chunk of that fall drinking alone with a black-and-white TV, feeling misunderstood, unloved, and sorry for myself. I was homesick and feeling guilty. I had just ended a year-long relationship, and not very graciously at that. Basically, I just left the province. I didn’t tell her I was going to law school or Toronto. I just left.

  If there was an upside to my social isolation, it was that I actually went back and read all those books on the English curriculum that I’d never read at UBC. It also enabled me to focus like a laser when I had to.

  It was at law school, as a result, that I became a top student for the first time. And, once again, it was Bryant family experience that helped build my success. This time it was my dad who taught me what turned out to be the best scholastic trick I ever learned.

  Law school is all about exams. Typically, the final exams were worth 100 percent of the final mark. So, above all, you’d better learn how to write them. My dad said that most people go into exams with ten hours of material in their head and only two or three hours of writing time to cram it all in. In effect, they know too much and don’t finish all the questions. He maintained that exam writing was a skill and, like any other skill, was something you had to practise. So that’s what I did. I tried to write three practice exams for every exam I actually wrote. This meant that I would usually go into exams with about three and a half hours worth of content for a three-hour exam. My margin of error was smaller, but the payoff was great. I almost always did better than the other students who went in there with too much knowledge and not enough exam-writing experience. I succeeded because, by then, I was a veteran exam writer. Again, it was very strategic.

  Looking back, it also helped me develop skills that were wholly transferable to politics. I was a quick study and knew when I had enough information to speak to an issue. A decade or so later, as Attorney General in Ontario, I might not be an expert on, say, organized crime, but I could sure sound like one for a short press conference.

  The cure for my isolation turned out to be this formula for exam-writing success. After getting A’s the first semester, I realized that there wasn’t much to do between a term’s beginning and the exam study period. While many were burning themselves out, reading everything for every class, I was free to party with the more social set—a handful of hardcore revellers, mostly guys, who vacillated between being leaders and outcasts. I was less a member of this gang than a fellow reveller, never quite fitting in, I thought.

  In my mind, I continued imagining myself as tragically alone and unloved at law school (more on that disease of misperception later). The reality was different. In fact, slowly but steadily, I made more friends over the course of the three years leading to our graduation in 1992. To most, I appeared bombastic, overconfident, occasionally humorous, and often inebriated.

  When we graduated, some of my fellow students were startled to see me finish second in our class of more than 300. Some of them saw me primarily at the Thursday-night pub, where I often could be found on my knees—either because that’s how I was dancing after midnight, or because I couldn’t stand up. (I distinctly remember taking a nap on the dance floor, sticky with beer and rum and Coke, with people stepping over me, after last call at 1 a.m.) At graduation, the gold, silver, and bronze medallists were called up on stage. One friend, who later became general counsel to a major corporation, told me that when she saw me go up there her jaw dropped—because she’d been wondering whether I would even graduate.

  If the recurring themes of this phase of my life were luck and chutzpah, probably nothing illustrates it so much as the letter I wrote in my first year at Osgoode to Ontario Premier David Peterson.

  It was around the time of the Meech Lake constitutional accord. The First Ministers had reached an agreement that year to salvage the deal that Prime Minister Brian Mulroney intended as his great legacy of nation-building. Also, the federal Liberal leadership campaign was in the midst of picking a successor to John Turner, who—though performing much better than he had four years earlier—in 1988 had suffered his second straight majority defeat at Mulroney’s hands.

  So I wrote Peterson a three-page letter, entirely unsolicited, praising his tenure as premier and urging him to run for the federal Liberal leadership. To my astonishment, I got a phone call from his office, inviting me to come to Queen’s Park and meet the Premier. I remember thinking, “What a great country this is. You just write a letter to the Premier and he invites you to his office to chat about it!”

  On my very first visit to the Ontario Legislature, I ended up sitting in the Office of the Premier. We spent about 30 minutes together. Crisp white shirt sleeves rolled up to his elbows, top button undone, Peterson had been smiling and laughing throughout our visit. He asked me what I wanted to do with my Osgoode Hall law degree. I told him, “I’d like your job one day.” Then he got this look on his face. It was the first time I saw that party leaders don’t much like to be told that someone else wants their job one day.

  I also said I’d like a summer job in his office. Eventually, his staff did offer me a coveted position in Attorney General Ian Scott’s ministry. New to Ontario, though, I’d barely heard of Ian Scott, so I decided to go to Borden & Elliott and work for one of Toronto’s finest barristers, Dennis O’Connor, that summer. (I’d make up for it by naming the Ministry of the Attorney General’s building after Ian Scott, and his great predecessor Roy McMurtry, when I eventually got that Attorney General job myself.)

  The job working for O’Connor was a plum. He would one day head Ontario’s public inquiry into the water contamination in Walkerton, Ontario, that resulted in the tragic deaths of seven and made thousands more sick. O’Connor is now Ontario’s Associate Chief Justice. But I left after a month because my father had decided to run for the provincial Social Credit nomination in the riding of Saanich South, and I went home to help run his campaign. He won the nomination, but the next election was an NDP sweep. Andrew Petter, who’d become B.C.’s Attorney General, finance minister, and a university president, became the Member of the Legislative Assembly for Saanich South, in Greater Victoria.

  The next year, the summer of 1991, I was working at Blake, Cassels & Graydon in Vancouver for Marvin Storrow, an old classmate of my father. He was a pioneer litigator in aboriginal rights; he successfully argued all the major Supreme Court of Canada cases of the 1980s and ’90s. I assumed that I’d eventually be back in Vancouver after law school, working for Storrow, once I finished my clerkship in 1993.

  The prized post for law school graduates is clerking at the Supreme Court of Canada. Each of the nine justices chooses three clerks, so only 27 of the top graduates from across the country make the grade. Interviews are held at the end of second year. Then the judges choose, sort of like a hockey pool, picking in three rounds according to seniority.

  I interviewed with the late John Sopinka, a highly competitive former CFL football player who liked me because I boxed; with Frank Iacobucci, who was one of my father’s best friends at law school; and with Beverley McLachlin, who was named to the court from British Columbia and whom I saw as my best shot because she always picked a clerk from B.C.

  I didn’t show up for my interview with her wrapped in B.C.’s provincial flag, but it was close.

  True to form, I again tried to manipulate the process as best I could. When I heard McLachlin was speaking at Phi Delta Phi, the legal fraternity at Osgoode, I immediately joined the fraternity in order to attend—and, because I knew the president, also managed to wangle the chance to introduce her. Whatever friends I had at Osgoode, every one of them had found his way into the legal fraternity (and its free beer). I’d been the last of that crowd to join, and only did so because McLachlin was speaking. So—and I suppose this could have backfired—I arranged for a few of my friends to approach her while I was making the introduction and tell her that “M
ichael’s a wonderful, fantastic leader within Osgoode.” Or words to that effect.

  Astonishingly, it seemed to work, because when she called me in the spring of 1991, she said she had been quite struck by that night, by how I seemed to be a leader within the school, by the fact I seemed to have the respect of my peers. Well, I had the respect of a couple of drinking buddies, anyway.

  When McLachlin offered me a clerking position, I said yes, hung up, jumped into the air, and smashed my hand on the low ceiling of my basement apartment. I was a Supreme Court of Canada law clerk!

  IN AUGUST 1992, I arrived in Ottawa and took an apartment in the capital’s Chinatown at MacLaren and Bronson. If my lodgings were modest, my workplace could hardly have been grander or more imposing.

  The Supreme Court of Canada, all marble and granite blocks, sits just west of Parliament Hill, on the bluff overlooking the Ottawa River. It’s set well back from the main thoroughfare of Wellington Street, the better to establish an air of aloof authority. It was designed by Montreal architect Ernest Cormier, the cornerstone laid by Queen Elizabeth during her visit in 1939, and the building was completed in 1941. Its first few years were spent more in the service of Canada’s war effort than its justice system.

  Twenty of the 27 clerks worked in a maze of cubicles in a massive third-floor room with large windows overlooking the front lawns and the approach to the Supreme Court’s main entrance and the building’s huge and humbling foyer.

  At the Court, our job was primarily research and writing. Clerks produced three products. The first were “bench memos” to be read by the justice along with factums (the written legal arguments made by each of the parties before the Court). I always thought of bench memos as a pre-judgment judgment. Might as well tell Justice McLachlin what I thought she should do. We also helped draft judgments and recommendations for leaves to appeal (i.e., which cases should be heard by the Court).

  If being the Attorney General of Ontario was the best job I ever had, clerking at the Supreme Court was a close second. I loved it. I was extremely confident in my own capacity to make judgments. I didn’t have a lot of second thoughts about anything. Most of the other clerks were overwhelmed by the responsibility and understandably wanted to research exhaustively and consider what they were recommending in their bench memos to the judges or in their draft judgments. It was easy for me. I had delusions of grandeur.

  Madam Justice McLachlin and I worked well together because she’s prolific and decisive. She makes a decision and she sticks with it. She wants clerks just to cut through the material and get right to the point. “Here’s the problem; here’s the solution.” That’s more or less how I got through law school, so it worked out well.

  In addition, McLachlin had been appointed to the Supreme Court only three years earlier. She had been spotted as a star while a law professor at UBC, where she counted former Prime Minister Kim Campbell among her students. Then she went from county court judge to the Supreme Court in less than a decade.

  The speed of her ascent was unprecedented and is unlikely to be repeated. But because of it, she hadn’t decided that many issues as a trial or appellate court judge. So we worked on most of the issues from first principles. Normally, she would do the first draft and we clerks would edit and fill in the blanks on her work. Other clerks assigned to more experienced justices said they sometimes felt more like librarians than lawyers, fetching previous opinions on a given issue written by that judge. In the McLachlin chambers, we felt that we were creating her library in real time.

  Working for her, I had a memorable year. For the first time in my life I felt popular among my peers. Up in our work room, I had sort of a captive audience: my fellow clerks, all working together on the top floor of the copper-topped building. I loved the work and, better still, I was good at it. Everybody else was working 15-hour days and I was working ten. Then I’d be at the pub, or dragging the clerks across the river to Hull, Quebec (now known as Gatineau). I thought Hull’s drinking establishments were among the wonders of Confederation. Fellow clerks would occasionally attend these interprovincial excursions to humour me. I also loved that year because I came to think of the place I worked as la cour d’amour, with romances among the clerks unfolding with the passage of the seasons.

  Though I started in August, most of the clerks arrived the following month. And, one day in September, we welcomed the half-dozen or so clerks from McGill University. Among this group was Susan Heather Abramovitch, the double-gold-medallist from McGill Law who would be clerking for the most experienced judge on the Court, Mr. Justice Gérard La Forest.

  Actually, it wasn’t the first time I’d seen Maître Abramovitch. The first was when I was crashing in Toronto that summer with my friend Lorne Sossin, who is now Dean of Osgoode Hall Law School and at the time was also preparing for a year as a Supreme Court law clerk. Lorne received the McGill University alumni magazine, and, as I leafed through a copy one day, Susan’s photograph immediately caught my eye. It wasn’t just her glittering credentials. I thought she was striking, alluring, pretty.

  Come the day of her arrival at the court, Susan found herself one of seven clerks assigned to an office in the basement. In what must have been the first hour of her first day on the job, she visited our third-floor clerks’ maze, looking for both a friend from McGill and a washroom.

  In search of the latter, she came around a corner. I saw her and thought, “I’m going to marry her.” This wasn’t an experience I’d had before.

  Susan, however, was underwhelmed. I think her first comment upon coming face to face with me was, “Where’s the bathroom?”

  Anyway, I quickly stepped in as if I were the host of the Supreme Court of Canada, and began making introductions. Naturally, I mispronounced her name. I threw in an extra syllable or two: “Abramon-ov-in-itch.” I mean, Abramovitch is quite a mouthful for a boy from Victoria.

  I started chasing her immediately, with almost no success. Mostly, I drove her nuts with my ability to get the work done more quickly than most of the other clerks. “Frat-boy savant” was what she called me. Not meant entirely, I assumed, as a compliment. It wasn’t until late winter that year that I won her attention.

  And so Susan and I had a courtship in our workplace. Not at all an uncommon experience. It’s just that our workplace was the Supreme Court of Canada.

  We canoodled in the judges’ elevator and got caught by Tom Cromwell, then the CEO to the chief justice of Canada and later a Supreme Court justice himself. We got amorous in various nooks within the courthouse library, deserted hallways, storage rooms, and fire escapes. We even got caught, much to the entertainment of the RCMP on site, on security cameras we didn’t know existed.

  As it happened, we were one of several couples formed that year among the Supreme Court law clerks. My friend Lorne Sossin married fellow clerk Julia Hanigsberg, now vice-president at Ryerson University, who would become my chief of staff as Attorney General and a best friend for life. There were other marriages and common-law relationships as well. Like I said, la cour d’amour.

  Not long after we started dating, Susan’s parents—her dad a doctor, her mom a social worker—had an anniversary celebration. This Victoria WASP was the surprise that came to dinner in Montreal.

  I suppose there could have been some reservations about me. Susan’s parents had been raised as conservative Jews. She herself had attended Hebrew school and a conservative shul. For her, I suppose, a relationship with me was a little rebellious. Her parents likely preferred that she marry within the faith. But they were also relieved that she had found someone who wasn’t intimidated by her high intelligence and abrupt, uncompromising manner. I wasn’t. I was ready to have a grown-up relationship.

  Neither Susan nor I could have known as our romance began and grew that one of the cases we were working on would come to figure so dramatically in our own future. That year, Madam Justice Beverley McLachlin wrote the majority judgment in a decision called Creighton v. Regina, the third in a
trio of cases by the Supreme Court of Canada that dealt with criminal fault. One of those cases, Hundal v. Regina, set out the test for criminal negligence causing death and dangerous driving causing death. As McLachlin occasionally allowed, she asked one of her clerks—me—to prepare the first draft, so I wrote the early version of the Supreme Court’s majority opinion.

  The constitutional issue dealt with mens rea, or the criminal mind. The issue was whether someone could be convicted of a serious crime without being consciously aware that they were engaging in dangerous behaviour. It was a debate between the “subjectivists” (who believed that the accused had to think dangerously to be held guilty) and the “objectivists” (who believed it didn’t matter what the accused was thinking so long as a reasonable person would find his or her actions to be dangerous).

  At the time, I was very judgmental. I believed an objective test would suffice for conviction. We were taking rather a hard line.

  Not insignificantly, to me anyway, the dissenting opinion in the Creighton case was written by Chief Justice Lamer, with the concurrence of Mr. Justice Frank Iacobucci, my father’s old friend, a man who presumably could have changed my diapers as a baby.

  It would turn out that I’d helped write a rather stringent test that, almost two decades later, I’d have plenty of cause to reflect on again while sitting in a jail cell.

  A year as law clerk to the Supreme Court of Canada counts as the equivalent of articling. Afterwards, everyone goes either to Wall Street or to graduate school. It’s a career trajectory generally aimed in one direction, to elite posts in corporate law or academia. From our year, nobody went to Africa to volunteer for good works. Very few people ever just go directly home.

  I knew I was going to grad school; I just didn’t know where. I’d applied to Stanford, Columbia, and Harvard. I’d already been accepted into graduate law programs at the first two. Columbia would even waive tuition and grant me a teaching fellowship, which would pay my way.