A Place Apart, Yet in the Community

The process of judicial appointments is probably one of the most important ways that the political branch of government affects the judicial branch. In their selection of candidates, a lawyer’s experiences and community involvement certainly should be considered in conjunction with their professional achievements.

The changes to the appointment process, introduced on Oct. 20, 2016, have improved considerably the selection and diversity of these candidates, especially as compared to the track record of the previous government, whose appointments appeared to be primarily based on political patronage and factors related to false estimations of prestige. As a result, 98% of these historic appointments were white, despite over 27% of the population being visible minorities and Aboriginals.

Beyond the perceptions of legitimacy by the public which are enhanced through a diverse bench, the diverse experiences allow for better decision-making because of the different perspectives that these life experiences provide. Unless we are looking for judges who simply look diverse but do not have these experiences (possibly because they were isolated from them or lived in an exclusive socio-economic bubble despite these diverse characteristics), we likely want judges who have lived experiences in the communities they served prior to their appointment.

Perhaps one of the most notable examples of the existing members of the bench would be Justice Donald McLeod, who was appointed to the Ontario Court of Justice on September 18, 2013 in the Central West Region in Brampton. This city has a visible minority population of 73%, and the Black population in particular consists of nearly 14%, as compared to the provincial average of under 5%. Justice McLeod was well known in the Black community, not just in Brampton, for the 15 years of his practice prior to his appointment, especially for his education and mentorship of Black youth.

Following his appointment, it would appear apropos that Justice McLeod would continue his involvement in the Black community, especially given that the Principles of Judicial Office allow for a judge to maintain their involvement in the community, subject to certain exceptions.

For example, judges must maintain the public’s trust and confidence, and avoid any conflict of interest or the appearance of conflict of interest in the performance of their judicial duties (emphasis added). The commentary to this principle in 3.2 goes further, and indicates that judges may not participate in any partisan political activity or contribute financially to any political party.

Some of Justice McLeod’s community involvement though raised some controversy in recent years, leading to a complaint to the Ontario Judicial Council (OJC). The decision IN THE MATTER OF a complaint respecting The Honourable Justice Donald McLeod was released this week, and helps clarify the issue of advocacy and political activity by judges. Although the Judicial Council dismissed the complaint, they did find his conduct was incompatible with judicial office. The decision therefore helps further define a boundary that all judges must respect in the future.

The complaint centered around Justice McLeod’s involvement with a new grassroots organization called the Federation of Black Canadians (FBC), which sought to promote greater equality and inclusion for persons of African descent in Canada. Justice McLeod temporarily served as Chair of the Interim Steering Committee of the Federation of Black Canadians, for an organization that has yet to be properly established even at this time.

Concerns around his involvement appear to have first emerged in late 2017, when Associate Chief Justice Finnestad requested a meeting with him and asked him to cease his involvement due to the organization’s meetings with various non-partisan politicians. Justice McLeod believed that his activities, given their limited capacity, were still consistent with judicial office, and was referred to the Judicial Ethics Committee of the Ontario Court of Justice for advice. Based on the facts provided to the committee, there were no concerns about Justice McLeod’s involvement as long as he distanced himself from fundraising.

Further concerns were expressed by the committee over activities that could be considered as lobbying, especially if the role of the organization evolved beyond a source of information, knowledge and perspectives on the social issues affecting Black Canadians, and the function of simply educating politicians about these issues. Being informed of these concerns, Justice McLeod indicated that he would continue to ensure that his involvement with FBC reflected these tensions, and that he would avoid any of these ethical aspects of the organization.

The only real objections beyond this appear to be stimulated by inquiries by particular members of the media towards the end of 2017. The true controversy emerged in early 2018, with media coverage of FBC and advocacy around Abdoulkader Abdi, a refugee from Somalia who had been in government care since the age of 7, and was facing potential deportation as a result of criminal charges.

The FBC had made written submissions on Feb. 28, 2018 to the government over Abdi’s plight. The FBC letter to the Ahmed Hussen, the Minister of Immigration, Refugees and Citizenship who incidentally was also a refugee born in Somalia, and was a lawyer practicing immigration law prior to his election, stated in part,

Various organizations and community organizers across the country have spoken out against Mr. Abdi’s potential removal due to the devastating impact it would have on the claimant and his family, as well as his extenuating circumstances. As you are aware, immigrant children were barred from applying for Canadian citizenship until last year, which demonstrates your government’s efforts to establish a more humane immigration system.

Unfortunately, Mr. Abdi arrived in Canada in 2000 and was put into youth protection; he therefore was unable to apply for residency and his citizenship paperwork was never filed. In January, he completed a five year sentence stemming from multiple convictions. Lacking Canadian citizenship, he now faces the looming prospect of deportation to war-ravaged Somalia, a country with which he has very tenuous ties, and with which he has had no contact since his departure, as a child nearly twenty years ago.

As the Minister responsible for the Citizenship Act and the Immigration and Refugee Protection Act (IRPA), FBC FCN would be pleased to work with you and community partners to explore ways to ensure that the implementation and development of deportation and removal policies reaffirm the principle of equity and Canada’s humanitarian tradition while protecting the safety and security of all Canadians.

Justice McLeod was particularly careful to remove himself from any involvement with this letter or any advocacy around Abdi, given the political nature of the work and that there were legal challenges before the court. However, this did not leave him immune to criticism.

The very nature of marginalized communities though is a predisposition to attack members of their own community in antagonistic ways, largely out of historic frustrations, distrust, and political ineptitude.

It is this last factor that may have thrust Justice McLeod in the most problematic aspects of his involvement with the FBC. Although presenting counsel for OJC dropped entirely the complaints of partisan activity or improper funding, as media reports on this were not factually informed, the concerns around what constitutes as lobbying remained.

The OJC did not accept Justice Macleod’s testimony that he was simply educating the government, or that he was not engaging in lobbying, which they defined as soliciting support of those in power or attempting to influence members of the legislature,

[79] We recognize that judges do engage with government officials outside the courtroom in a variety of ways that are acceptable. In his response to the complaint, Justice McLeod made reference to the involvement of judges with a “working table” that the Ontario Ministry of the Attorney General created to review and discuss current issues and policy concerns on mental health issues in the criminal justice system. As we have noted, the Ethical Principles for Judges contemplate judges being involved in law reform initiatives. In Canada, judges frequently serve on commissions of inquiry. Reference was made to the practice in the United Kingdom (UK) where judges have frequently appeared as witnesses before Parliamentary Committees: see Graham Gee et al, The Politics of Judicial Independence in the UK’s Changing Constitution (Cambridge: Cambridge University Press, 2015) at pp. 101-102.

[80] However, it is equally clear that judges remain subject to limits in how they engage with government officials in these settings. In the UK, the matters discussed tend to relate to the actual operation of the courts. The UK’s Judicial Executive Board has also cautioned that judges should avoid commenting on the merits, meaning or likely effects of prospective legislation or government policy except where the bill or policy affects the independence of the judiciary or relates to the operation of the courts or the administration of justice: Gee et al, at p. 111; Judicial Executive Board, Guidance to Judges on Appearances before Select Committees (October 2012). Moreover, in Canada the Commentaries make it clear that a judge must carefully consider the implications for judicial independence of serving as an inquiry commissioner: 2.8, p. 12.

[81] In our view, serving on a working table, acting as an inquiry commissioner, or testifying before a legislative committee are distinguishable from the type of advocacy at issue in this case. The government, not the judge, initiates these former activities. It is the government that identifies the issues to be explored and invites a judicial perspective to assist in the formulation of public policy. The judge is not involved as the advocate of a specific cause. The government structures the setting for the interaction. In the case before us, it was the FBC that initiated contact with government officials, identified the issues to be addressed, and advocated the adoption of policy choices that the FBC sought to have implemented in a setting that the FBC itself structured.

[emphasis added]

The basis of this distinction is the need to maintain a separation between the judiciary, and the executive and legislative branches of government, as a central feature of the rule of law to ensure that the relationship with the judiciary remains depoliticized,

[84] Judicial independence secures the institutional arrangements required to ensure an impartial judiciary, capable of resolving disputes according to law and free from interference from powerful forces, including the executive and legislative branches of government. Judicial independence requires that judges occupy “a place apart”: see Martin L. Friedland, A Place Apart: Judicial Independence and Accountability in Canada (Ottawa: Canadian Judicial Council, 1995). Judges must stand above the political fray, free from the pushes and pulls of public opinion. It is incompatible with the separation of powers for a judge to enter the fray and ask political actors for policy changes and the allocation of resources, however worthwhile the judge’s motivating cause. A perception could arise that the judge’s rulings will be influenced by whether the government accepts or rejects the policy changes that the judge has advocated for, or that the government will try to influence the judge by accepting or rejecting such changes.

[emphasis added]

Justice McLeod’s prominent role within the FBC may have given rise to confusion over who was making these “asks” of politicians. He would not likely have crossed this boundary if his efforts were restricted to educating members of the public. The problem was that he had initiated contact with various politicians, even before the idea of the FBC was conceived, to understand how best to develop a broad nation-wide consultation that would include grassroots and community engagement. These contacts, and the opposition to these conversations in the media by others who objected to those politicians’ general political views, created an unnecessary controversy.

Paradoxically though, the members of the Black community raising objections to Justice McLeod’s general involvement with FBC actually took issue with the organization’s conciliatory and cooperative approach over Abdi, and instead wanted a more radical confrontation. They interpreted this manner of advocacy to be partisan and supportive of the government, or at least not sufficiently antagonistic. Perhaps worth noting is that these critical voices were not even part of the Somali community, which itself is a distinct community that typically (though not always) self-identifies as a subset of the Black community at large, and consists of about 0.1% of the Canadian population.

It was this media attention and the inquiries, which itself came from members within the Black community, that led to the complaint to the OJC. Although the OJC decision states that these media articles were concurrent or following the complaint, the materials submitted to the Council and by the Associate Chief Justice confirm that the dates match up perfectly to the day. And it was the media coverage that ultimately led to a finding of incompatible conduct. The Council stated in its decision,

[90] We also conclude that Justice McLeod should have foreseen that engaging in policy advocacy and interacting with government officials could expose him to political attack and perceptions of a lack of impartiality and conflict of interest by members of the Black community who disagreed with both his goals and the means he used to achieve those goals. There was nothing improper about Justice McLeod’s educational efforts to inform others about the issues and challenges facing the Black community. The existence of these issues and challenges are uncontested. However, as the [media] events of February 2018 demonstrated, there are real and reasonable disagreements within the Black community concerning both the goals that members of the community should pursue and the means they should employ to achieve those goals. Indeed, as the Ethics Committee advised Justice McLeod on March 8, 2018, his activities led to a situation in which he was “embroiled in a very public dispute…with others who purport to serve the same community interests.” This situation was reasonably foreseeable. As Justice McLeod stated in his own testimony, “we as a community are never always going to agree, nor should we.” Accordingly, as the Commentaries note, Justice McLeod should have avoided involvement that could have unnecessarily exposed him to political attack: 6.D.5, p. 41.

[emphasis added]

In support of this principle, the OJC referred to the Canadian Judicial Council’s Ethical Principles for Judges, which states,

3. Judges should refrain from:

(d) taking part publicly in controversial political discussions except in respect of matters directly affecting the operation of the courts, the independence of the judiciary or fundamental aspects of the administration of justice;

The commentary to this principle openly acknowledges that the application of this principle is more open to debate than other principles, but provides two important considerations:

  1. The first is whether the judge’s involvement could reasonably undermine confidence in his or her impartiality.
  2. The second is whether such involvement may unnecessarily expose the judge to political attack or be inconsistent with the dignity of judicial office.

The OJC concluded there was no basis that Justice McLeod’s impartiality was in question or undermined by activities with FBC. The problem here was unnecessary exposure to political attack.

Although the OJC referenced and relied on the testimony of Dr. Wendell Adjetey for background history of the Black community in the United States and Canada, and the importance of role models, they failed to properly emphasize the contextual factors about the nature of the Black community in Canada as compared to African-Americans. Dr. Adjetey characterized the latter as far more homogenous in identity and cause, especially as it related to social issues across the country. In contrast, Dr. Adjetey characterized the Black community in Canada is far more nuanced and much more fragmented, largely given the diverse immigration sources for Black Canadians, and a much broader range of experiences in Canada and prior to immigration.

This heterogeneity was itself the basis in part for Justice McLeod’s statement of an inability to generate any single general consensus in the Black community, but also helps illustrate that these divisions over those “who purport to serve the same community interests” cannot be fairly characterized as politically partisan. As a result, political controversy of this type is not necessarily foreseeable, because there are in fact many Black communities in Canada, who all have their own voices, issues, agendas, and priorities.

The Somali community in particular is frequently as much or even more susceptible to discrimination and barriers in Canada as a result of Islamophobia and anti-Muslim sentiment, issues that are often not shared with the broader Black community (and occasionally, at the hands of it). Although Somalia as a country is one of the most ethnically homogenous countries in sub-Saharan Africa, Somali identity is much more tribal-oriented, and spans well beyond political boundaries of the eponymous nation. Centuries of trade, migration, and intermixture with other populations can also provide a Somali phenotype on occasion that would be more easily characterized Arab or Middle Eastern. To confuse things further, there are many indigenous Black populations in the Middle East or who are Arab, and the latter, as a linguistic term, is frequently used by Somalis as a self-identifier as well.

The effect of the OJC’s conclusion here that the fear or apprehension of any controversy by different factions within a community would effectively preclude any involvement at all by minority judges in the very communities that need their assistance. Unfortunately, the need for such involvement has never been more dire.

Statistics Canada reported last month that police-reported hate crime reached an all-time high in 2017, with a 50% increase against the Black population and 30% increase against the Arab population. The hate crimes against the Muslim population more than doubled, by 151%, accounting for 17% of all hate crimes in Canada. Hate crimes against Muslims today is higher than it was following 9/11. Of course populations with the greatest distrust towards the police are the least likely to report such crimes, so all of these numbers are likely deflated.

There may be good reason for distrust towards some police members. A new interim report by the Ontario Human Rights Commission demonstrates that between 2013-2017, a Black person in Toronto was nearly 20 times more likely than a White person to be involved in a fatal shooting by the Toronto Police. The Interim Report states,

Building trust between police and the community should be a top priority for everyone, not just Toronto’s Black communities. There is a clear link between public confidence in policing and public safety. People are less likely to cooperate with police investigations and provide testimony in court if they have negative perceptions of police. Without trust, police cannot provide proactive, intelligence-based policing, and this has profound consequences for our justice system. It also has a significant impact on the cost effectiveness of Toronto police services which cost over one billion dollars annually.

This distrust is not limited to the police alone. The OJC decision states,

[102] We also consider it appropriate to evaluate Justice McLeod’s conduct in light of the racial dynamics in Ontario and the Central West Region. In (R.D.), Justices McLachlin and L’Heureux-Dubé recognized that the reasonable person would be conscious “of the local population and its racial dynamics”: para. 47. One of these dynamics, as the Court of Appeal noted in Parks, is that many Black people mistrust the criminal justice system because actors in that system can and do perpetuate negative stereotypes about Black people: at pp. 341-342. That Black people are overrepresented in the criminal justice system, are likely to be disproportionately arrested and searched by police, and are particularly vulnerable to unjustified police interventions are cases in point: Golden, at para. 83; Grant, at para. 154. This mistrust can also extend to the judiciary: Ontario, Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (Toronto: Queen’s Printer for Ontario, 1995), at pp. i-ii, 11-39. It would be wrong for courts and justice system participants to dismiss these perceptions: Parks, at p. 341. As Justice McLeod stated in his May 10, 2018 letter, his life experiences made him uniquely aware of Black over-representation in the criminal justice system and its roots.

[emphasis added]

We will not foster greater trust between the Black community and the justice system by removing, isolating, and chastezing one of the few Black members of the judiciary. We may admittedly need to modify our approach to generating and developing that trust.

It was this function of promoting public confidence in the justice system that led the OJC to conclude against a finding of judicial misconduct for Justice McLeod’s involvement with FBC, especially as it was not so seriously contrary to the impartiality, integrity and independence of the judiciary as to rise to undermining the public confidence.

Another mitigating factor against a finding of judicial misconduct was Justice McLeod’s reasonable and appropriate response to the media controversy in February 2018 by members of the Black community. He did not make any public response to the serious allegations raised against him, and instead brought them to the Ethics Committee with a clarification of the inaccuracies in those reports. He also took immediate steps to cease interactions with politicians, even as involvement with FBC likely continued longer than it should have.

The inability of members of the judiciary to respond publicly to controversies only emphasizes the need for members of the bar to do so on their behalf, especially where such controversies are ill-informed and themselves partisan in nature.

This is especially true for those members who have a more nuanced and in-depth understanding of the issues within those communities, and also some of the political partisanship that explains where criticisms and antagonism may arise from. It is in this way that we also assist in the depoliticization of the judiciary, and also assist in promoting the public confidence in the administration of justice.

Justice Donald McLeod and Omar Ha-Redeye at the OJC Hearing on Nov. 30, 2018.

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