Law Times

Page 4 December 10, 2018 • Law Times www.lawtimesnews.com Threshold for judicial misconduct is high Panel looks at complaint against judge BY AIDAN MACNAB For Law Times A cting as both a judge and advocate for the black community did not damage confi- dence in the justice system, ar- gued counsel for Justice Donald McLeod in a two-day Ontario Judicial Council hearing that concluded last week. At the hearing, which began Nov. 30, McLeod's counsel ar- gued that his client's dual role as a judge and advocate for his com- munity does not sacrifice the judge's neutrality and indepen- dence but enhances confidence in it by allowing him to serve as a role model to black youth and bringing forward issues that McLeod's community faces. "Indeed, I will respectfully submit to you that these pro- ceedings and a potential finding of misconduct against Justice McLeod can potentially under- mine and diminish rather than enhance public confidence in the administration of justice," said Mark Sandler of Cooper Sandler Shime and Bergman LLP. McLeod is answering to the complaint, filed by Associ- ate Chief Justice of the Ontario Court of Justice Faith Finnestad, that as a presiding judge, his in- volvement with the Federation of Black Canadians, and spe- cifically, his meeting with politi- cians on behalf of the organiza- tion, compromised the integrity, impartiality and independence of the judiciary. The complaint says McLeod inappropriately used the power and prestige of judicial office to advance the interests of the FBC and lent his prestige to FBC fundraising. The threshold for judicial misconduct is high, Linda Rothstein told the panel, and a finding of misconduct is "reme- dial," to be undertaken when the judge's activity is so detrimental to the public's confidence in the administration of justice that to restore that confidence, that judge must be sanctioned. As presenting counsel for the OJC, Rothstein said she was not there as an advocate on either side of the complaint against McLeod but to present the stan- dards, rules and relevant juris- prudence for the panel to make its decision. Sandler began his submis- sions Friday by telling the panel there was no clear line when it came to appropriate conduct for a judge's community involve- ment. "Reasonable people, includ- ing judges, disagree, sometimes forcefully, about what is or is not permissible," Sandler said. Sandler said McLeod's con- duct must be evaluated in the context of his community and the needs and circumstances of that community. McLeod began his testimony by telling his life story. He immi- grated to Canada with his family in 1970 and lived in Regent Park and Scarborough, Ont. in subsi- dized housing. He attended Mc- Master University, Queen's Law School and was called to the bar in 1998. After practising crimi- nal and administrative law for 15 years, he was appointed to the bench in 2013 in Brampton, Ont. In May 2016, Candice Bobb, a young black and pregnant wom- an, was shot and killed, her baby dying three weeks later. This led McLeod and others to organize a meeting to discuss problems in the black community, includ- ing gun violence, mental health, poverty, education and the criminal justice system. During his questioning, McLeod said that it wasn't un- til the complaint was filed that people thought he was being partisan. "I am just trying to make sure that we, with all our voices in this community, make sure that this community doesn't keep dying," he said. During his questioning, McLeod said that, from the be- ginning, he knew that he would not "comment on things that were judicial in nature" on how "the law should be done and how judges should judge, how deci- sions should be made," he said. Between June and September of 2016, McLeod met with poli- ticians including federal Liberal MPs Marco Mendicino, federal Minister of Immigration, Refu- gees and Citizenship Ahmed Hussen and Minister of Public Safety Ralph Goodale. Eventually, these initiatives culminated in the formation of the Federation of Black Canadi- ans. An interim steering commit- tee was established and McLeod became chairman. In the spring and summer of 2017, he chaired meetings where federal politi- cians, including Prime Minister Justin Trudeau, were present. In September of that year, McLeod met with Finnestad at her request. She told him it was inappropriate for him to meet with political figures. McLeod responded that his function in the FBC was consistent with his judicial obligations. He then sought the advice of the Judicial Ethics Committee of the Ontario Court of Justice, corresponding via email with Justice Peter Tetley. Included in the activities McLeod told Tetley the FBC would engage in, he said they would "interface" with govern- ment, which "can be seen as lob- bying (perhaps not traditional)." He asked if there was any issue with him being affiliated with the group. Tetley replied that the ethics committee had no ethical concerns provided the FBC was not a lobby group but a "conduit of important information relat- ing to issues of significance to a defined group of Canadians." Rothstein questioned McLeod about whether the FBC's engage- ment with the government was that of educator or whether they were, in effect, pressing the gov- ernment for policy changes and resources put toward issues affect- ing the black community, which could appear to be lobbying. "To some extent, and it's all a question of degree, the work of the federation had gone beyond purely educating government because there was some 'ask' in- volved. Is that fair?" she said. McLeod responded that it was not, that the "ask" was not the same as in a "traditional" lobbying sense. He said when someone knows something they didn't know before and feel com- pelled to act, that is not the same as when a group makes a request that will come with a promise of support from that group and threat of withholding support if the request is denied. During Rothstein's submis- sions on Dec. 4, she described the "asks" the group put to the government, which included funding for housing, a mental health strategy, legislation for anti-racism training for prov- inces, corrections programs and putting education surplus funds toward community programs. "The fact that it is absolutely undisputed that there was not a quid pro quo sought by FBC should not be determinative of whether or not the conduct is problematic for judges," Roth- stein said. Some media articles in 2017 and 2018 about McLeod's in- volvement with the FBC were critical of its effect on his judicial role. McLeod went back to the ethics committee and, in March of 2018, said his role would be ending within eight or nine months. Tetley advised he re- sign then, based on the fact that McLeod's role was now under public scrutiny. After the complaint was lodged, the registrar of the Ontario Judicial Council told McLeod the complaint subcom- mittee may recommend his sus- pension with pay until the com- plaint was dealt with. McLeod then responded that he had resigned from the steering com- mittee of the FBC and would cease all further activities with it. Court of Appeal Justice Rob- ert Sharpe, chairman of the panel, said the panel would not deliver its decision immediately and that, if there was another hearing needed, Ontario Judi- cial Council Registrar Marilyn King said it would take place on Jan. 22, 2019. LT NEWS A legal classic for your bankruptcy and insolvency practice Always up to date – two editions a year The Annotated Bankruptcy and Insolvency Act continues to be the resource you can rely on for authoritative guidance and current law and policy at a moment's notice. This practical softcover is a condensed version of the fi ve-volume classic Bankruptcy and Insolvency Law of Canada, 4th Edition. It's the perfect source for immediate access to primary law and concise commentary. New in this edition This release incorporates all recent legislative amendments. 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Price(s) subject to change without notice and subject to applicable taxes. © 2018 Thomson Reuters Canada Limited 00251FB-A94007-CM Always up to date – two editions a year The Annotated Bankruptcy and Insolvency Act be the resource you can rely on for authoritative guidance and current law and policy at a moment's notice. This practical softcover is a condensed version of the fi ve-volume classic Bankruptcy and Insolvency Law of Canada, 4th Edition perfect source for immediate access to primary law and concise commentary. Reasonable people, including judges, disagree, sometimes forcefully, about what is or is not permissible. Mark Sandler

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