Episode 2 – Take the brief and be an advocate. Sitting down with John McNair.
Join co-hosts Melissa Won and Patrick Clancy for a discussion with John McNair, a commercial litigator with over 35 years of experience, head of the firm’s litigation department, and former managing partner of McKenzie Lake Lawyers. John shares tales from his time as an international prosecutor in the Middle East and other interesting moments from his long, storied career.
John started out in criminal law on the defence side. He later became a Federal prosecutor working in narcotics. and a whole range of federal statutory prosecutions for a number of years. After practicing for 18 years, John took an opportunity to work in Bosnia with the Office of the High Representative–the sovereign legal authority in Bosnia. This led to his role as an international prosecutor in Iraq working with a team of British detectives directing investigations of police corruption.
Learn how these exciting experiences contributed to John’s unique background and skillset.
Patrick Clancy (00:00):
Hey everyone. Welcome to the Obiter podcast. I’m Pat Clancy and I’m Melissa Won. And this is episode two of the lawyer series. In this series, we sit down with lawyers at McKenzie Lake to discuss their career personal life and anything in between all in an effort to introduce our listeners, to the human being behind the lawyer.
Melissa Won (00:42):
Today, we’re sitting down with John McNair. John is a commercial litigator with over 35 years of experience, both in private practice and in international public law. John is a former managing partner of McKenzie Lake and is the current head of the firm’s litigation department today. John’s chatting with us about his past life as an international prosecutor in the middle East, as well as a host of other interesting aspects of his career.
Patrick Clancy (01:05):
So, John, why don’t you start off with telling us a bit about your career in your own words?
John McNair (01:10):
I mean, my practice, I guess, has kind of morphed several times over the years. Um, but in the latest incarnation, for the last several years, I’ve, I’ve concentrated on commercial litigation and one side of my practice. Um, and on the other side, I do workplace investigations for a whole range of organizations, from universities and school boards to, hospitals and nonprofits and private sector organizations that, uh, that need help with workplace misconduct or conflict of interest allegations. So those are kind of the broad areas that I, that my practice comprises
Patrick Clancy (01:50):
Previous to that, what else did you do? What else, what areas did you practice in, in the past?
John McNair (01:56):
Well I’ve always done, commercial litigation and employment law in some measure but my start, I guess, in the law was in criminal law, um, both on the defense side a little bit initially. And then, uh, I was appointed as a federal prosecutor once upon a time and did, did narcotics and, uh, customs and excise and a whole range of other federal statute statutory prosecutions for a number of years.
Patrick Clancy (02:26):
Right. And you’ve been on both the prosecutorial side and defense side.
John McNair (02:30):
More so prosecutions. I, I started out with a firm which did a great deal of criminal defense work and got a, got a pretty good grounding in that both at trial and appeal level. And, uh, and then switched over to, prosecutions after that.
Patrick Clancy (02:44):
What did you prefer?
John McNair (02:46):
I could do either equally with equal comfort. Um, I think that’s, you know, I’ve always said that sort of the barrister’s role, take the brief and be an advocate. Um, but I can do either one, they, they both are equally important in our system.
Patrick Clancy (03:06):
I guess, your prosecutorial background, is that what made you go overseas to, to prosecute over there and kind of take us through how that came about?
John McNair (03:17):
Yeah. That was kind of a mid career decision. I’d already been a lawyer for, I don’t know, 17 or 18 years before I did that. So, um, but I had that background as a prosecutor and I had always wanted to work, uh, in one of the international tribunals, uh, potentially in the Hague or elsewhere. Um, and then an opportunity came up in Bosnia and Herzegovina. Uh, so I went there in.
Patrick Clancy (03:44):
I have always wondered how to pronounce that.
Melissa Won (03:44):
I know I’ve never known either.
John McNair (03:48):
I can’t give you the cerebral Croatian pronunciation, but, but yeah. So I took that opportunity and, and, uh, the firm was, was terrific about letting me go on that. So during which, uh, when was that started in 2003, and it was initially really only a six month contract with the office of the high representative, which was then, and still is the sort of the sovereign legal authority in Bosnia. Um, but when I was there, the high representative who was then Laura Dash Down, Paddy Ashdown, uh, imposed upon the Bosnian parliament, a new criminal code and a new criminal procedure code. And under that legislation, the deputy chief prosecutor in the country, uh, had to be an international lawyer. And so I was appointed while I was there as the first, uh, international deputy chief prosecutor.
Melissa Won (04:45):
How does that opportunity come your way?
John McNair (04:47):
I applied for the position in their anti-corruption unit, and was, did an interview and was hired, um, and went there in August of 2003. Um, and then I, you know, was appointed effective by the high representative effective January 1st, 2004. I was sort of, so you were over there on the spot and qualified, I think is how it came to me.
Patrick Clancy (05:12):
You were already over there when the new code was passed?
John McNair (05:16):
Or I think it was him, it became law just as I arrived or just before.
Patrick Clancy (05:21):
Okay. So that made you potentially a bit of a target over there. Did you have any kind of security detail or anything like that?
John McNair (05:29):
Yeah, I had a close protection team starting, uh, in, I’m going to say February of 2004 for the rest of my term.
Patrick Clancy (05:39):
And so this was after you were appointed to that position?
John McNair (05:41):
Yeah, a few weeks afterwards. I got the.
Patrick Clancy (05:43):
After what a bullet was by your head.
Melissa Won (05:46):
I recall that story or was that an urban myth?
John McNair (05:49):
Nothing that dramatic. I don’t know what I was just an old hunting. I don’t know what I reported back here to the firm, but it wasn’t that dramatic, but there
John McNair (05:58):
Were some, uh, it was a very high profile position and, there were various reported security threats and incidents and nothing ever really materialized.
Patrick Clancy (06:09):
Are we talking like armored vehicle and everything?
John McNair (06:11):
No. I had a, I had a land Rover Discovery, which was not armored, but I had.
Patrick Clancy (06:18):
But you chose the luxury. You had the choice of the luxury vehicle or the armor.
John McNair (06:24):
It was pretty beat up. It had a little gun rack and did I had a, I had a three member close protection team. We rotated in pairs. So they were with me all the time. Anytime I stepped outside the door at my flat, and they hung out around the court all day and, sat in the back of the courtroom during trials and they were always around.
Patrick Clancy (06:43):
Can you tell us about any high profile cases you did over there?
John McNair (06:46):
I did the trial of the former, uh, Bosnian Croat president And that trial went on sort of intermittently, not every day, but went on for a year from, uh, we arrested him and his co-accused in, I’m gonna say January, 2004, the trial started in the fall of 2005 and it went on until late 2006. And my department of international prosecutors did a number of cases. Um, that was kind of the, the biggest in terms of length of the trial and, and the degree of attention it got.
Patrick Clancy (07:26):
What were the charges against him?
John McNair (07:28):
A whole range of, uh, public corruption charges. Uh, some of them are, some of them come arising under the former Yugoslavia, the former law of Yugoslavia, uh, abuse of public office, essentially, but really it involved the diversion of public funds, from Croatia flowing from Croatia to the Croat part of Bosnia. So it was, it was a public corruption, government corruption series, series of charges.
Patrick Clancy (07:58):
What about like the cultural experience of going over there and practicing law? Like how different was it over there?
John McNair (08:03):
Uh, in Bosnia, it was a great lawyering experience as it, in terms of development as a lawyer, it was, it was terrific. The Bosnian criminal justice system is a hybrid of, uh, really the common law and the European model. So, uh, the prosecutor controls, the investigation process, uh, directs the investigations, which was sort of new to me and I, and I, but I had really good police backup, including some RCMP people. But at the trial, it’s a common law style trial, and that was new to the Bosnians and so like examination in chief cross examination was a new thing for the Bosnian lawyers. So I had it all over them on that stuff, because that’s what I like. So, uh, so the trials were, were interesting and, uh, the Bosnians had had benefit of considerable training, the American bar association and rule of law project to train them. And they were well-educated and very capable.
Patrick Clancy (09:05):
So it was kind of the lead up to the trials that were more out of your wheelhouse, so to speak?
John McNair (09:10):
Yeah, for example, um, here, uh, the police operate with much more independence in their investigations. They essentially often bring the finished product of the investigation to the prosecutor, in the Bosnian system, the police kind of don’t do anything without direction from the prosecutor without an order from the prosecutor. So, uh, in terms of financial investigations, uh, arrests, we did, we, we prosecuted some, human, big human trafficking case, um, uh, some narcotics cases, some customs and yeah,
Patrick Clancy (09:49):
The prosecutors are directing those investigations. Would there be sort of police minded people on the prosecution team and vice versa or not? I might not really kind of identify.
John McNair (10:00):
It worked very closely with, with, Bosnian police, particularly in my, in my case, the, Federation ministry of the interior police. Uh, but they have various police forces. There’s a state level of Bosnians. Bosnian is a very complex political culture, uh, because it’s, it’s, uh, divided into really two, two States almost, the Federation and the Republican SERPs go, who the serve Republican. So they each have their own police force. And then there’s an overarching state police force. Uh it’s so it’s policing, like everything else in Bosnia is, complicated on ethnic lines. Right.
Melissa Won (10:43):
So, John, would you say that that, that experience is what ultimately led you into your investigation work back here in Canada? To some extent?
John McNair (10:53):
Indirectly yes. I went to Iraq then after that, that was just for a year.
Patrick Clancy (11:00):
What were you doing the same thing interact that you’re similar things interact that you were doing in Bosnia? Or was it different?
So much? I mean, I thought it, I thought I would be, but I was part of the, uh, the provincial reconstruction team in Bazrah province. So the provincial reconstruction teams are a model that the British and the Americans and the Canadians for that matter have used in both Afghanistan and Iraq and in post-conflict reconstruction. So I, uh, was went over there as the international prosecutor assigned to work with a team of British detectives, in mentoring the Iraqis in a police corruption project. So it, it, it did, it certainly, you know, it had some of the same common features as the work I did in Bosnia, but in Iraq, I didn’t have appearance privileges in Iraqi courts. So we, we weren’t prosecuting cases. We were just trying to persuade the Iraqis to prosecute them. And that didn’t, that didn’t go very well.
Patrick Clancy (12:03):
Where did you, where were you stationed over there?
John McNair (12:05):
I lived on Nebraska air station, which was the main coalition base, a huge coalition base, in the South of the country, just outside Bazrah. And then I was there maybe just a few weeks and the security situation deteriorated and they canceled all land moves off Fort non military personnel off the base. So, and sorry, when, when was this? This is a 2007, I guess. So, um, yeah. So from that point on, for the balance of the year, when we, when we went to the courts or we went to prosecutor’s offices, it was, I had to be by helicopter, or, or by air up to Baghdad and so forth. So it was mobility was restricted Senate.
Patrick Clancy (12:49):
Previous to that, you were just trying like in vehicles, like driving around?
John McNair (12:53):
We would have, um, but that got, that got kyboshed quick. Yeah, it did. Um, I guess kind of taking it even back before all that
Melissa Won (13:04):
Way back, because you had a bit of a different trajectory getting into law, even, did you not, so you, you went to law school and maybe I, maybe I don’t have this. Right. But go to law school then London school of economics?
John McNair (13:16):
Uh, no. Then I articled. Yeah. So I, yeah, I articled before he went to the London school of economics? I didn’t do an undergraduate degree, I just did two years. And then I got into law school and then I articled here in London, and then I went to law school at Western, or yep. Yeah. And then I deferred what was then the bar, the bar exams, the bar admission course, which was a six month course of lectures and exams. Right.
Patrick Clancy (13:43):
So Melissa and I were deprived of, by the way, yes. We just wrote the bar. You didn’t miss much.
John McNair (13:52):
Yeah. So they let me defer that. And so I went to, taking one for a year and then came back and had to do the bar, that bar admission course when I got back.
Patrick Clancy (14:00):
And then you, when you started out, there was no. When you started out practicing in London, there was no McKenzie Lake Lawyers. Is that right?
John McNair (14:07):
That’s right. Yeah. 1998. I remember the date. I think the first effective date of the merger was October 1st, 1998.
Patrick Clancy (14:15):
Was Mavis the only female lawyer at the time, or were there others?
John McNair (14:18):
No she wasn’t the only one I don’t believe. Um, Sandra wouldnt like this. Don’t remember Sandra van Ymeren was there at the start, or she came a bit later, but, uh, but certainly there were, there were female associates. I don’t know if there were any female partners. In fact, I don’t think there were when, at the time of the merger. Wow. Yeah.
Melissa Won (14:41):
How doe a merger like that happen is that just lawyers on either sides identifying sort of synergies between the two and thinking, let’s get together on this?
John McNair (14:52):
Yeah, it was very much like that. You know, each one, one obstacle really was that each of the firms owned their own premises. And so, you know, we had decided where we’re going to move. If we did join forces,
Patrick Clancy (15:04):
You weren’t going to pick that place on Talbot though. Right. The shyer or whatever. It was, had a funny smell to it. I think from what I remember.
John McNair (15:11):
No, we were at 300 Dundas, no, sorry, we were at 400 Queens Ave and we moved to 300 Dundas.
Melissa Won (15:18):
The one with like, uh, like, uh, like an over wasn’t there bridge.
John McNair (15:23):
Yeah. That was the nicest space in the place, out on the bridge.
Melissa Won (15:30):
I’ve heard about that. Then it got too dangerous.
John McNair (15:33):
That part Drewlo built built it. So it was good. It was never going to fall down.
Patrick Clancy (15:38):
So yeah. So then you moved to 300 Dundas when you merged
John McNair (15:42):
That’s right. And we carried the, uh, the 400 Queens property until it eventually sold. Uh, but yeah, the impetus was that that, you know, that the two firms thought that we’d have more, more depth and ability to get better work. And, and we also thought, frankly, we could, you know, we could accommodate the merged firm at one location and operate more efficiently. And we did the, the, well, 300 Dundas premises it was cramped and outdated by the time we left. But it, uh, it was, you know, it was an efficient place, profitable place.
Patrick Clancy (16:20):
That’s what, how you describe it too right. Melissa efficient and profitable
Patrick Clancy (16:25):
Started there. Right? You articled there.
Melissa Won (16:28):
Yeah. That was from the articling office up to the second floor back down to the articling office, the interior window articling office. No, no, I never made my way. That was just Jim. Jim just got, sorry. That was a project specific placement.
John McNair (16:44):
Yeah. On the third floor, outside Malcom Bennett’s office, people were at risk of stacks of boxes falling on them.
Melissa Won (16:51):
I think that was no different than though.
Patrick Clancy (16:54):
Did you have to have a security detail over there as well? Or
Melissa Won (16:58):
Protect ourselves from the flooding outback?
Patrick Clancy (17:01):
Yeah. There’s more environmental hazards over there – the mice. Yeah. But yeah. So anyways, we, we often see you here on, on weekends. Um, well sort of see you, you’re kind of camouflaged sometimes when we, let me see you in here on weekends and under armour cammo gear what’s what’s what, what is there to that?
John McNair (17:20):
I’m a, nobody’s supposed to see me wearing that.
Patrick Clancy (17:21):
Oh, that’s the idea. You’re you like to hunt as well, right?
John McNair (17:25):
Yeah. I’ve always been an outdoors guy. So fishing and hunting has kind of been my thing.
Patrick Clancy (17:30):
Okay. I was told that you’re quite the marksman as well by another lawyer at the firm.
John McNair (17:34):
Oh, I’m quite capable of missing on any, on any given day.
Patrick Clancy (17:38):
No, no. I heard you were down in traveling the U S doing competitions there and whatnot. Yeah,
John McNair (17:43):
No. Yeah. I shot a trap and sporting clays quite a bit and including some trips down the States. But you know, nothing, uh, not at Olympic level
Patrick Clancy (17:53):
And, and sports seem to kind of run in your family too. Right? Cause you have a niece, who’s a world champion swimmer,
John McNair (17:59):
Uh, Maggie, Mac Neil’s her name? She is, uh, she is, the reigning world champion in the a hundred meter buffer butterfly,
Patrick Clancy (18:08):
Like world record or world champion?
The world record. But, uh, but she won the July 20, what? 2019 world championships in South Korea. Wow. In the a hundred meter butterfly,
Patrick Clancy (18:24):
Would she go up against like Penny Oleksiak or like,
John McNair (18:28):
She’s on the same team as Penny Oleksiak? Um, she, uh, she took the spot amongst the Canadian swimmers, which included Penny Oleksiak for that, that particular event, the a hundred meter fly. And she beat a swimmer named Sarah Sjostrom who, uh, is the Swedish, four, five time world champion and, and reigning Olympic gold medalist. Wow. She says, she has a scholarship at university of Michigan. And, uh, so she would be going into her third year, junior year, I guess they call that. But, uh, she’s at home right now. Doesn’t know that there’ll be no, uh, NCAA competition this fall. So she’s not certain whether she’s going back to Michigan or when she’s going back. Uh, but she hopes to, because, the training and coaching she’s had in Anne Arbor has just been tremendous.
Patric Clancy 2 (19:23):
John, thanks for sitting down with us today. Thank you. Have fun.