Determining Judicial Ethical Conduct: Not So Straightforward? Part I

INTRODUCTION

Time was the community or advocacy activity of lawyers with judicial aspirations centred around fundraising and other activities related to participation in our major political parties. Eventually, some of these lawyers found themselves rewarded with a judicial appointment. They cut their ties, as far as anyone knew, with their favoured party. It was not difficult to end their pre-judicial activity and remove themselves from community involvement. More recently, however, with the net for potential judges cast far wider in order to increase diversity on the bench, the community work aspirants engage in may be quite different. And so we have the saga of Justice Donald McLeod, the subject of two judicial ethical conduct inquiries by the Ontario Judicial Council (“OCJ”).

Justice McLeod was extensively involved in the various activities of the Federation of Black Canadians (“FBC”), which he had founded following his appointment to the Bench. The two conduct inquiries illustrate the conflicts that potentially arise when a judge, committed to helping his community, is unable to establish clear boundaries between the demands of their judicial role and their commitment to a particular cause. They show the need to respect those boundaries, even if for altruistic reasons.

And so the ambiguity around permissible and impermissible conduct, and the strong dedication to doing good, led to two complaints against Justice McLeod.

My interest in considering these two decisions is less to analyse them than to place them in the context of the changes in the makeup of the bench and to consider the role “public controversy” plays in assessing judicial conduct. In this first of two posts, I discuss the two decisions in response to the complaints against Justice McLeod and in my second post, I consider the broader implications.

BACKGROUND

The Associate Chief Justice (“ACJ”) of the Ontario Court of Justice (“OCJ”) made the first complaint in February 2018; the hearing panel released its decision on December 20, 2018 (“Decision #1”). Journalist and Black activist Desmond Cole made the second complaint in March 2019; the hearing panel released its decision on June 2, 2021 (“Decision #2”). Both complaints concerned Justice McLeod’s involvement with the Federation of Black Canadians; the second complaint also alleged Justice McLeod had committed perjury during the first hearing or had misled the first hearing panel.

The OCJ judges are governed — or guided — by the OCJ’s Principles of Judicial Office. As both panels noted, the OJC also considers the Canadian Judicial Council’s Ethical Principles for Judges (these have been recently revised) (Decision #1, para. 61; Decision #2, para. 63).

Both sets of principles permit judges to participate in community activities and even encourage their doing so. However, there are limits; in the OJC’s Principles, the limit is when the participation is “incompatible with their judicial office” and in the CJC’s Ethical Principles, the limit is when it “reflects adversely on their impartiality” (Decision #2, para. 382).

In Decision #1, the panel identified two elements judicial activity must meet to satisfy judicial ethical standards: the first is whether judicial activity is “incompatible with judicial office because it constitute[s] impermissible advocacy and political activity”; if it is, the second element is whether the “conduct was so seriously contrary to judicial impartiality, integrity and independence that it has have [sic] undermined the public’s confidence in [the judge’s] ability to perform the duties of office or in the administration of justice generally.” (Decision #1, para. 2) The panel also explained that the purpose of the ethics inquiry is not to punish the judge, but to “repair any damage to the integrity and repute of the administration of justice” (Decision #1, para. 70). (Also see Decision #2, paras. 65-67 on these points.)

The panel hearing the second complaint also announced it was “mindful” of evidence stemming from the testimony of an expert witness who spoke of “the credibility gap” as

a phenomenon whereby, despite the sterling qualities of a Black person, negative stereotypes associated with being from “the ghetto” will be triggered in that person’s encounters with non-Black society. As a result of the credibility deficit, Black people have a provisional status, which is the effective equivalent of being on probation for life. One perceived misstep by a Black person can lead to disproportionate scrutiny by non-Black society. (Decision #2, para. 77)

The panel did not specify how it applied the credibility gap to its deliberations. Perhaps it is not too far-fetched to suppose that the credibility gap lay beneath both panels’ reluctance to find that Justice McLeod’s conduct diminished public confidence in the judiciary.

Justice McLeod’s problems arose from the scope of his participation in the FBC. As Decision #1 stated,

Justice McLeod helped found the FBC and was one of its leading voices. The FBC has the laudable goal of promoting greater equality and inclusion for persons of African descent in Canada. Its activities included the identification of issues confronting Black Canadians and meeting with politicians and government officials with a view to addressing those issues and improving the circumstances of African-Canadians. (Decision #1, para.1)

Decision #1 described Justice McLeod’s background based on an Agreed Statement of Facts. His “mother raised him and his sister as a single parent in subsidized housing and with very limited resources.” Although he “struggled” in school, with the help of mentors from the Black community, he graduated from McMaster University and eventually from Queen’s University law school. He had been a criminal and administrative law lawyer for 15 years when the Ontario Attorney General appointed him to the OCJ in September 2013. (Decision #1, paras. 5 and 6) Justice McLeod had begun “paying it forward” before being appointed a judge through his involvement in the Black community, particularly in activities concerning youth. He continued to do so after his appointment. The panel dealing with the second complaint also praised his character and his work in the community, evidenced by the many letters and videos of support before the panel (Decision #2, para. 79).

Initially Justice McLeod gathered a group of 37 people in Toronto whom he then arranged to meet politicians over a period in 2016, some three years after his appointment. However, he and others concluded that having an impact required a national organization. His answer was to found the FBC; Justice McLeod became the Chair of the Interim Steering Committee. In May and June 2017, Justice McLeod chaired and facilitated meetings with various federal politicians in attendance, including Prime Minister Trudeau, and members of the Black Caucus. The purpose of the meetings was to describe the issues facing the Black community and list steps the government could take to redress them. Justice McLeod ensured that information about and photos taken at the meetings were made public in the interests of transparency. (See Decision #1, paras. 12 to 15 for details; also see Decision #2, paras. 29-31.)

During the first hearing Justice McLeod suspended his involvement with the FBC; however, he subsequently again attended meetings, helped draft a letter to a government minister and assisted in preparing content for the FBC’s website, among other activities.

THE COMPLAINTS

    Complaint #1

Associate Chief Justice Faith Finnestad of the OCJ met with Justice McLeod to explain her concerns about his involvement with the FBC and to ask him to stop having meetings with politicians. Justice McLeod disagreed with her assessment, since he believed “these meetings were consistent with his obligations as a judge” (Decision #1, para. 17). Following up the ACJ’s suggestion that he meet with the OCJ’s Judicial Ethics Committee (“the Ethics Committee”), Justice McLeod sent an email to its chair, Justice Peter Tetley, including a list of “assumptions” he wanted Justice Tetley to make in considering whether he should continue with the FBC. He asked whether there should be any limitations on his involvement. The assumptions were the following:

(i) I will not be involved in any fundraising;
(ii) The organization is not a lobby group or partisan to any political party;
(iii) My participation will not take away from my judicial duties nor will I receive any remuneration;
(iv) I will refrain from commenting on matters directly affecting the operation of the courts, the independence of the judiciary or fundamental aspects of the administration of justice.

My role with respect to the Federation is as the founder, chair of the steering committee and an honorary chair of the official Federation of Black Canadians. My duties will be to ensure proper governance and adherence to parliamentary procedures (Roberts rules mainly) during board meetings. (Decision #1, para. 17)

This email satisfied Justice Tetley, who apparently saw no need to meet with Justice McLeod in person. Indeed, Justice Tetley advised that “based on the facts presented by Justice McLeod, the Ethics Committee had no concerns about his involvement with the FBC provided that he distanced himself from fundraising.” (Decision #1, para. 18)

Subsequently, however, Justice McLeod made an annotation to his description of what the FBC would be doing, saying the FBC might be “interfacing” with government and he might be involved in that. This tidbit made the Ethics Committee sit up and take notice, warning Justice McLeod that the FBC’s activities might be perceived as lobbying rather than simply a purveyor of information to government. The Ethics Committee indicated that such a development would mean Justice McLeod might have to reconsider his involvement “from an ethics perspective” (Decision #1, para. 20). Justice McLeod advised he would govern his involvement accordingly.

He continued to be active in the FBC, speaking publicly, sometimes identified as a judge. The FBC’s lobbying activities became more explicit, even if Justice McLeod did not involve himself in them. In December 2017, Finnestad ACJ spoke again with Justice McLeod, this time telling him that it was time for him to cease his activities with the FBC. Yet Justice McLeod continued to be publicly involved.

By February 2018, media commentary questioned Justice McLeod’s involvement, raising it as a conflict of interest. In particular, Desmond Cole was critical of the FBC as a “’thinly-veiled front for partisan Liberals’” and directly challenged Justice McLeod’s ability to be neutral, given his connection to “an advocacy organization” (Decision #1, paras. 38 and 39).

The ACJ wrote to the OJC in February 2018, “point[ing] out that while the goals of the FBC are positive, the issue was whether the FBC’s activities and those of Justice McLeod “’cross the line into advocacy and political activity, and thereby transgress principles of judicial ethics’” (Decision #1, para. 43). The hearing committee into this first complaint framed it as concerned with Justice McLeod’s conduct “in his capacity as Chair of the Interim Steering Committee” of the FBC (Decision #1, para. 1).

Although Justice McLeod told the Ethics Committee that he disagreed with how his role had been characterized, he thought it better that the FBC be chaired by someone other than a judge, concluding he would leave after eight to nine months. The Ethics Committee had other ideas, namely that Justice McLeod should resign “now”. Among the reasons for this determination was that “Justice McLeod appeared to have become ‘unwittingly embroiled in a very public dispute or political battle with others who purport to serve the same community interests’” (Decision #1, para. 42).

The proceedings to address the ACJ’s complaint began in March 2018. Justice McLeod’s response to the complaint partly denied that he had engaged in misconduct and partly explained the steps he was taking to clarify the FBC’s and his own role (Decision #1, para. 44). After the Registrar advised him in May 2018 that the complaint subcommittee was considering making an interim recommendation that he be suspended with pay, Justice McLeod resigned as chair of the FBC’s Interim Steering Committee and “disengaged from any activities on behalf of the FBC” (Decision #1, para. 45). The complaint subcommittee decided not to proceed with its recommendation.

The complaints subcommittee made its report and a review panel ordered a hearing pursuant to sections 51.4(18) and 51.6 of the Courts of Justice Act. The allegations were the following:

… Justice McLeod’s actions were contrary to the standard of conduct expected of a judge, including the duties to avoid conflicts of interest, participation in partisan political activity, using the powers of judicial office inappropriately, involvement in community activities incompatible with judicial office, and lending the prestige of judicial office to fundraising activities. (Decision #1, para. 47)

The panel in Decision #1 was adamant that Justice McLeod acted for a laudable purpose and not for personal gain; it recognized the significance of role models for youth in the Black community and “the serious moral obligation felt by Black Canadians who, like Justice McLeod, have achieved positions of prominence, to serve as leaders and role models in the community” (Decision #1, para. 52). Justice McLeod’s intentions and motivations are not the point, however: “The public ‘demand[s] virtually irreproachable conduct from anyone performing a judicial function’ and judges ‘must give the appearance of being an example of impartiality, independence and integrity’… This high standard necessarily involves ‘a certain loss of freedom’ on the part of judges to pursue goals and objectives that are open to persons who are not judges”…. (Decision #1, para. 54; citations omitted)

Under the Principles, judges not only are able to engage in community activities — indeed, they are encouraged to do so, although there are risks — but in doing so, they

are expected to “maintain their personal conduct at a level which will ensure the public’s trust and confidence” (Principle 3.1 [of the OCJ’s Principles of Judicial Ethics for Judges]). They “must avoid the appearance of any conflict of interest” (Principle 3.2) and they “must not abuse the power of their judicial office or use it inappropriately” (Principle 3.3). (Decision #1, para. 59)

Given the nature of judicial ethical principles as guidelines rather than fixed rules, the hearing panel described its task as follows:

We must examine the pertinent ethical principles, consider the nature of the judicial role in Canadian society and take account of the institutional arrangements essential to maintain judicial integrity and independence and ultimately, the public’s confidence in the judiciary in general and in the administration of justice. (Decision #1, para. 56)

The hearing panel quickly concluded that Justice McLeod did not participate in partisan politics. It did not find it so simple to address his involvement with the FBC, though, which raised issues of participation in controversial issues, advocating for particular policies and Justice McLeod himself becoming the subject of controversy.

It also concluded that certain activities in which Justice McLeod engaged constituted advocacy (he described them as “educational”) and others were lobbying. It found that although it did not appear that Justice McLeod’s impartiality has ever been questioned, his conduct was inconsistent with the independence of the judiciary and the separation of the judiciary from the executive and legislative branches. It seems significant, moreover, that the FBC initiated the contact with politicians.

Decision #1 states, “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” (Decision #1, para. 90). The hearing panel concluded that “Justice McLeod’s conduct was incompatible with judicial office” (Decision #1, para. 92). (For the full analysis of Justice McLeod’s conduct, see Decision #1, paras. 72 to 92.)

Nevertheless, this conclusion does not mean that that this conduct amounts to “judicial misconduct”. Justice McLeod did not engage in partisan activity or fundraising; he did not express an opinion on any matters that he might adjudicate on in the future; he distanced himself from one issue (the deportation of Somali refugee, Adboulkader Abdi) in which the FBC engaged in advocacy; he did not participate in Lobby Day when FBC members met with politicians; he consulted the Ethics Committee, although he should have responded more promptly to the concerns subsequently expressed by the Ethics Committee and ACJ; he brought articles critical of him to the attention of the Ethics Committee. (For the full analysis, see Decision #1, paras. 95-103.) In particular, his efforts to increase confidence in the justice system “weigh against a finding of judicial misconduct” (Decision #1, para. 104).

Despite all the specific difficulties with Justice McLeod’s conduct, the hearing panel believed that his conduct overall had been beneficial to the system. In addition, it thought the guidelines might be ambiguous; in their view, their decision has helped bring clarification. In the future, judges should be able to determine when the line would be crossed. (This, as it turned out, indicated either a lack of perception about the impact of their own decision or unfounded optimism.) It therefore dismissed the complaint against Justice McLeod.

One might have hoped that this would have been the end of the matter, that Justice McLeod would have heaved a big sigh of relief and then governed his conduct accordingly. The panel in Decision #1 had praised him as a fine contributor to his community, someone who had succeeded in his profession but who remembered his beginnings and wanted to help his community, especially young people. It had given him a green light to continue at least some of the work he was doing, but at the same time, had warned him that he needed to stay within the lines.

Unfortunately, Justice McLeod did not — and evidently was not able to — sort out the proper balance between his responsibilities as a judge and his commitment to his community. Not only did he try to skirt the panel’s warning in Decision #1, but, as foreshadowed by the panel’s comments in Decision #1, his “problems” also stemmed from another source. The panel had referred to and quoted from attacks from within the Black community not only against the FBC, but also against Justice McLeod personally (Decision #1, paras. 38 and 39). These attacks returned to haunt him.

After the release of the first decision, Justice McLeod returned to the FBC and was involved in several activities (Decision #2, para. 355). In March 2018, he had told the Ethics Committee he would resign after 8 to 10 months. On March 8, 2018, the Ethics Committee advised he cease activity immediately. Yet Justice McLeod responded in May 2018 to the first complaint by saying he was phasing out his involvement (Decision #2, paras. 359 and 360). In June 2018, he advised he had ceased all activities (Decision #2, para. 362). The second panel pointed out that “Justice McLeod was not asked during his testimony at the First Hearing whether he intended to return to the FBC and if so, in what capacity” (Decision #2, para. 363).

    Complaint #2

And so we move to the second complaint against Justice McLeod, this one a frontal attack by one of the people who had been particularly vocal against him and his involvement in the FBC. Desmond Cole, who had been vociferous in his criticism of Justice McLeod’s efforts to both sit as a judge and participate in the community, especially with the FBC, made a complaint in March 2019. A Notice of Hearing, released on February 20, 2020 (almost a full year after the date of the Complaint), included the Complaint as Appendix A.

The Complaint alleged that Justice McLeod had committed perjury at the hearing of the first complaint. The FBC had played an advocacy role in relation to the deportation of the Somali refugee, Adboulkader Abdi. The Agreed Statement of Facts on which the first hearing panel relied, as well as Justice McLeod’s own testimony at that hearing, stated that Justice McLeod had separated himself from this advocacy. Cole alleged that this was not true and that Justice McLeod had arranged a meeting on behalf of the FBC with the Minister of Immigration, Refugees and Citizenship, Ahmed Hussen about Abdi.

Justice McLeod had also stated at the first hearing that he had effectively ceased his involvement with the FBC; the Complaint alleged that he subsequently chaired meetings. The Complaint also alleged that Justice McLeod had been involved during the period following the release of Decision #1 in activities of the FBC that could be seen as or actually constituted “impermissible advocacy and lobbying”. It further claimed that Justice McLeod gave what it called or could be viewed as “legal advice” to two youth delegates to the National Black Summit in February 2019.

The second panel found that Justice McLeod had not committed perjury in relation to the Abdi case and had not misled the first panel in relation to ceasing his activities with FBC. However, the panel concluded that he had “engaged in behaviour that was or could be perceived as being ‘impermissible advocacy and lobbying'” when he attended the meetings and spoke during the summer 2019. He had also “engaged in behaviour that was or could be perceived as being ‘impermissible advocacy and lobbying’, providing legal advice, or improperly influencing individuals in relation to advice he gave to two youth delegates to the 2019 Summit” (Decision #2, para. 17). This conduct was incompatible with judicial office, but once again, as did the first panel, the second panel determined that Justice McLeod’s conduct “did not rise to the level of undermining the public’s confidence in his ability to perform the duties of his office or the administration of justice generally” and therefore “does not amount to judicial misconduct” (Decision #2, para. 19).

Although Justice McLeod resigned as chair of the FBC’s Interim Steering Group during the proceedings into the first complaint, after the release of the first decision he once again took a formal role (Decision #2, para. 3). He became Leadership Advisor to its Interim Steering Committee and Executive Team, both of which he was to “manage”; it was a term of this position that he not interact with government. He gave a speech at the 2019 National Black Canadians Summit. In June 2019, he became the non-voting chair of the new FBC Board of Directors, although Board had not yet become effective when he resigned from the FBC in September 2019. (Decision #2, paras. 12-15)

The second panel explained that, similarly to the first panel, it did not decide the broad question of “the propriety of a judge belonging to an advocacy organization or, if membership is permitted, any further limits on a judge’s participation in such an organization” (Decision #2, para. 21). Under the circumstances, this seems to be a lost opportunity. The first panel had prided itself on clarifying “that there are limits that govern judicial participation in civic and charitable activities and interaction with politicians and government officials” and “setting a clear boundary that judges will be expected to respect” (Decision #1, paras. 107-108). It is not at all clear that the first panel was successful in achieving its objective, but it is clear that it and, despite ongoing issues with Justice McLeod’s conduct, the second panel, too, avoided the more difficult question that Justice McLeod’s involvement with the FBC raised: involvement with an advocacy organization that likely needs to engage in political activities and lobbying to achieve its objectives.

The first issue the second panel considered was the FBC’s and particularly Justice McLeod’s involvement in efforts related to preventing the deportation of Abdoulkader Abdi. The first panel, on the basis of the Agreed Statement of Facts and Justice McLeod’s testimony had concluded that Justice McLeod had distanced himself from any such involvement.

Although the second panel describes in detail various ways in which Justice McLeod was involved in arranging, attending and participating in a January 2018 meeting with Minister Hussen in his constitutency office and that he was there on behalf of the FBC, it nevertheless concludes that he was nothing more than a “facilitator”: it was a meeting at which the fact of the problems was raised, and next steps discussed.” It was about “education and public relations”, not about Abdi, and “Justice McLeod did not speak against his deportation” (Decision #2, para. 204).

The second panel had to decide whether Justice McLeod committed perjury or misled the first panel by not revealing his involvement in the January 2018 meeting and by his part in preparing a letter the FBC sent to the Minister in February 2018 about Abdi (Decision #2, para. 209). The first panel had found that Justice McLeod did not express his views on any cases that might come before his court and he “distanced himself” from the FBC’s advocacy on behalf of Abdi. (Decision #2, para. 97) But the issue before the second panel was whether he had represented to the first panel that “he would not have spoken to politicians about the policy underlying the Abdi case” (Decision #2, para. 205). The “policy” concerned the deportation of West Indians and Black people prior to the Abdi case.

Justice McLeod’s counsel in the first hearing asked him whether he had “any involvement at all” in the FBC’s representations in the Abdi case, asked in the context of the February 2018 letter, but arguably worded broadly enough to encompass other activities (Decision #2, paras. 271 and 272). He answered, “no”. The second panel parsed the question, concluding that it was ambiguous: it could have referred to “substantive” involvement or “any involvement at all” (a phrase that looks suspiciously like the phrase “any involvement at all” in the question).

One panel member identified ways in which Justice McLeod had been involved in the letter, although they did not include creating or signing the letter (Decision #2, para. 208). Accordingly, when Justice McLeod said he had not been involved, it depended on how he understood the question; he did not have any “substantive” involvement. (For details of this parsing, see Decision #2, paras. 273-275.) The first panel did not have the website or the March 2018 Community Asks before it (Decision #2, para. 277).

As far as the second panel was concerned, Justice McLeod’s representation that he was not involved in Abdi-related activities concerned only the February 2018 letter. By viewing the involvement of Justice McLeod in this limited way, the second panel was able to conclude that he did not mislead the first panel by not telling them about his presence at the January 2018 meeting (which he said he had forgotten): that meeting was not about Abdi; “although other participants at the January 2018 Meeting undoubtedly believed Justice McLeod was representing the FBC, the January 2018 Meeting did not involve FBC public advocacy against Mr. Abdi’s deportation”; and “Justice McLeod did not represent to the First Panel that he would not have spoken to politicians about the policies underlying the Abdi case”. (Decision #2, para. 210) (I note that earlier in its decision, the second panel had concluded, “we are satisfied that the other participants at the January 2018 Meeting believed he was present on behalf of the FBC and that their belief was objectively reasonable” (Decision #2, para. 193).

The second panel concluded that Justice McLeod had not committed perjury or misled the first panel about the January 2018 meeting (Decision #2, para. 212).

Justice McLeod was involved in drafting the February 2018 letter to the Minister, as well as discussing content for the FBC website about the Abdi case. He attended FBC events, although he stated they did not relate to the Abdi case, even though others thought they did. He participated in a telephone conversation (surreptitiously recorded) in which the participants discussed the Abdi case. It appears that Justice McLeod’s concern was that his participation not be made public. He wanted various statements included in the February 2018 letter indicating that he had not been involved, although the Steering Committee did not include these statements because Justice McLeod had merely facilitated the logistics. (Decision #2, paras. 231-246) He also appears to have made some comments about what should be on the FBC’s website (Decision #2, paras. 247ff.)

The second panel “acknowledge[d]”

that members of the public who viewed the February 2018 Steering Committee Letter to Minister Hussen in an FBC Facebook post, as well as the Ministers who received the February 2018 Letter, would undoubtedly have assumed that Justice McLeod was involved in it. No doubt it is concerning that Justice McLeod would thus have been associated in the public domain with the FBC’s public advocacy concerning Mr. Abdi. (Decision #2, para. 262)

It nevertheless concluded that Justice McLeod’s contribution to the February 2018 letter to the Minister, the website and to a subsequent Facebook post, March 2018 Community Asks, was merely “administrative” or took the form of his being a “conduit” (Decision #2, paras. 263-270).

Justice McLeod had told the Registrar of the OCJ that he had ceased activities with the FBC when the Registrar advised that the ethics subcommittee would suspend him if he didn’t, in the course of the first proceedings. However, he was involved in the FBC, copied on emails, having a Governance Committee scheduled to suit him and in other ways. Yet the second panel decided his involvement (copiously described in Decision #2) merely assisted the other members of the FBC who did not have the same broad knowledge of the organization he had and he was not actually involved in its activities (Decision #2, para. 351).

Here again the second panel chose to take a narrow view of what occurred. It viewed Justice McLeod’s statements as related to only to the prospect of being suspended during the first hearing. He did not undertake to cease activity after the first decision (Decision #2, para. 369). The second panel stated,

[370] Justice McLeod interpreted the First Decision as permitting him to continue in a role with the FBC so long as he, personally, did not initiate interactions with politicians or government officials to achieve policy objectives not directly tied to the administration of justice. Had the Review Panel intended to allege that he breached the First Decision or otherwise engaged in judicial misconduct by rejoining the FBC in a leadership role or otherwise, it could have required that the Second Allegation be framed to say so.

[371] Instead, the allegation is that Justice McLeod misled the First Panel through his evidence. For the reasons we have expressed, we do not accept that is the case. He did not undertake in his evidence never to return to the FBC. Nor did he make any representations about his future involvement with the FBC.

In February and July 2019, Justice McLeod participated in events at which government ministers were present, at least one of which he attended on behalf of the FBC, which the the allegation described as lobbying or impermissible advocacy (Decision #2, paras. 375 and 375).

Justice McLeod was “Leadership Advisor” with the FBC, which organized the February 2019 event. The second panel describes the speech Justice McLeod delivered as “perilously close to impermissible political advocacy”. The event was related to a lobbying event; otherwise, there would have been no problem with the speech. As it was, there was a problem. Still, the second panel concluded:

But considering this was a one-time event, and that a reasonable observer could discern that Justice McLeod was not purporting to speak as an FBC representative or as being associated with BVOTH, [Black Voices on the Hill] we are not prepared to hold that the Speech amounted to conduct incompatible with judicial office. We would caution however that repetition of this type of speech in a similar context could lead to a different conclusion. (Decision #2, para. 428)

The FBC’s Interim Steering Committee had prohibited Justice McLeod from interacting with government on behalf of the FBC when it appointed him to the Leadership Advisor position. Nevertheless, in July 2019, Justice McLeod attended a meeting organized by Employment and Social Development Canada (“ESDC”) on behalf of the FBC. He absented himself from some parts of the meeting because of his status as a judge. He had also participated in a pre-meeting telephone call in June.

The second hearing panel concluded that “at a minimum, Justice McLeod’s attendance at the ESDC meetings gives rise to a perception of lobbying concerning the allocation of government resources and was therefore incompatible with judicial office” (Decision #2, para. 482). It continued, “we fail to see how Justice McLeod’s attendance at the July 23, 2019 meeting could be viewed as anything but lobbying in the sense of advocating to government about the allocation of resources in relation to an issue that had nothing to do with the administration of justice or Justice McLeod’s perspective as a judge” (Decision #2, para. 484).

Justice McLeod gave what he described as “personal advice” and the second panel termed “counselling” to two young people who had been the subject of racial profiling at an event on Parliament Hill in February 2019 about how to handle their response. The FBC was part of a coalition of organizations developing a response to the racial profiling incident. Justice McLeod was involved in FBC’s efforts in relation to this response; for example, he sent out an email to members of the Interim Steering Committee about “Post Summit Tasks” that included comments about strategy in response to the racial profiling incident (Decision #2, para. 506).

He also participated in a telephone call with the two young people and another member of the FBC. The situation became complicated and Justice McLeod’s comments and advice to them led them to becoming confused and frightened about what might happen should they say things they wanted to say instead of the media approach the FBC and others wanted. (For a full description of the call and different views of it, see Decision #2, paras. 527-538.) The panel concluded, “Justice McLeod should not have allowed himself to be drawn into this situation.” In all the circumstances, his conduct in being involved in the February 2019 Telephone Call was incompatible with his judicial office.” (Decision #2, para. 563)

The second panel found that attendance at the ESDC meeting and his advice to the young people during the February 2019 telephone call were incompatible with judicial office. The panel considered attendance at the ESDC meeting a “significant error in judgement”, but it was “satisfied that this error was the result of a mistaken understanding of the First Decision; that Justice McLeod believed his attendance was permissible; and that he attempted to comply with his judicial obligations while at the meeting” (Decision #2, 567).

As for the advice to the young people, the panel accepted his involvement was “impromptu and motivated by his ongoing commitment to ‘paying it forward’ and mentoring younger people. His error was in failing to stop and think about the context and in allowing himself and his position of authority to be used to attempt to bring others into line with the Coalition’s advocacy strategy” (Decision #2, para. 572).

THE SIGNIFICANCE OF JUSTICE MCLEOD’S CONTRIBUTIONS

Both hearing panels went out of their way to laud Justice McLeod’s contributions to the Black community and administration of justice.

The first hearing panel’s reluctance to find that Justice McLeod has acted inappropriately is inherent in its praise for his contributions:

[72] In our view, properly interpreted and understood, the principles of judicial conduct provide generous scope for a community-minded judge like Justice McLeod to work for the betterment of his community. For instance, Justice McLeod is the founder and co-chair of 100 Strong, a non-profit organization that aims to foster learning, embraces community and inspires excellence in young boys largely although not exclusively drawn from the Black community. We view his work with 100 Strong as highly laudable and entirely consistent with any constraints imposed by his judicial office. Equally laudable is Justice McLeod’s long list of speaking engagements at award ceremonies, law schools, high schools and celebrations by police and others of Black history and culture.

[73] Justice McLeod is rightly seen as a leader in his community. As a racialized judge, he has a moral obligation as a leader and role model in the Black community. As he noted in his response to the complaint, his community involvement was an important factor when he was appointed. There is no reason why it should have entirely ended when he assumed judicial office. He is to be commended for leaving his court room and judicial chambers from time to time in order to present to the public a positive and inspiring vision of what young Black Canadians can aspire to. (Decision #1)

The second panel considered Justice McLeod’s contributions to the administration of justice through his role as a judge and community contributions “have helped increase public confidence in the justice system” (Decision #2, para. 573). Nevertheless, the panel continued with a warning:

[574] We hasten to add however, that our findings in this case, as well as the findings of the First Panel, demonstrate that, in the future, Justice McLeod must exercise greater caution in his community activities. In a society that embraces diversity and welcomes positive change, testing unclear boundaries that place limits on otherwise positive activities may not undermine public confidence in a judge’s ability to perform their judicial function or in the administration of justice generally. But once the boundaries have been established, they must be respected. In the future, Justice McLeod should seek advice before engaging in community activities that are not clearly recognized as permissible.

[575] While we consider that both transgressions we have found could and should have been avoided, taking account of all the circumstances under which they occurred and Justice McLeod’s positive contributions to the administration of justice, we are not satisfied they were such as to diminish public confidence in Justice McLeod’s ability to carry out the duties of his office or the administration of justice generally.

CONCLUSION

It is evident that the complaints against Justice McLeod presented a quandary for both hearing panels. A cynic might say that the second panel in particular twisted itself into a pretzel in order to find activities verging on inappropriate conduct or, indeed, inappropriate conduct, salvageable as not impairing the public perception of justice. Like Justice McLeod, the panels were perhaps motivated by good intentions: their cause, seeking to protect the reputation of a “good” judge, was “just”. Yet both panels, the cynic might continue, failed to balance the scales by ensuring their conclusions provided adequate guidance to other judges as community-minded as Justice McLeod.

Both panels found some of Justice McLeod’s conduct to be incompatible with judicial office, but none of it to be “so seriously contrary to the impartiality, integrity and independence of the judiciary that it has undermined the public’s confidence in the ability of [Justice McLeod] to perform the duties of office or in the administration of justice generally”.

I note in this regard that section 23 of the OJC Procedures Document provides a list of options available to the Hearing Panel if it finds a judge guilty of misconduct (ranging from a warning to recommendation for removal, and including reprimand, a requirement to take education and suspension). Perhaps the first panel intended paragraphs 107 and 108 of its decision and the second panel intended paragraph 574 of its decision to be gentle “warnings”. Would a more severe disposition have delivered a clearer warning about the limits of judicial involvement in the community or would it have had a more chilling effect on other judges?

In my next post, I consider the McLeod cases in the context of the modern bench: one whose members are encouraged to live in and contribute to community and one whose members, as a result, can, in a highly politicized world, too easily find themselves embroiled in public controversy.

Comments

  1. I’d just like to suggest that you consider following your commentary on Judge McLeod’s disciplinary case(s) with a commentary on the case involving Tax Court justice David E. Spiro, a story that I think contains more, and more consequential, lessons.

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