Determining Judicial Ethical Conduct: Not So Straightforward? Part II

INTRODUCTION

In the first of these two Slaw posts, I wrote about the two inquiries into Ontario Court of Justice (“OCJ”) judge Donald McLeod’s alleged misconduct. Here I discuss not only this OCJ judge who deliberately met with politicians in the context of an activist group he founded post-judicial appointment, but also a judge who acted as a messenger for a group to which he had belonged to someone in the university administration about an academic appointment; a judge whose husband had effectively engaged in cyberbullying against her; a judge who went to the assistance of a law school facing difficulties; and a judge whose comments about sexual assault effectively covered the waterfront of myths and stereotypes. As I indicated in my first post, in this second post I explore the ramifications of these decisions, “plac[ing] them in the context of the changes in the makeup of the bench and … consider[ing] the role ‘public controversy’ plays in assessing judicial conduct.”

CHANGING NATURE OF THE BENCH: A BRIEF AND SCATTERED REVIEW

Although there are few explicit references to “public controversy” in either the former or the revised CJC’s Principles, much of the underlying concern about public perception relates to controversy. Increasingly, judges continue to be members of “the community” when they are appointed. They have long taught, sat on inquiries and engaged in other kinds of public service. Now, however, they are more likely to speak on matters less likely to be restricted to “what judges do all day”. They are encouraged to do so. Sometimes, there is little risk involved, sometimes the risk is identified and the judge determines it is worth taking. But sometimes it is not foreseeable.

As judges are appointed from communities not previously or sufficiently represented on the Bench, we should be prepared that at least some of these judges will have been active in their communities in ways their predecessors (and many current colleagues) will not have been. These earlier judges may have been politically affiliated, they may have held positions (such as as a Crown) that might raise eyebrows were it not for the presumption of judicial impartiality, but fewer are as likely to have publicly promoted particular causes. (Earlier judges did not need to do so, since their general views and those of “the establishment” coincided.)

(One other change I cannot pursue here is the extent to which more recent and future appointees will have posted “partisan” comments on social media or have written trenchant legal articles, perhaps not sufficiently troublesome to prevent an appointment, but antagonistic to parties before them or even members of the public. The sources for controversy have expanded in recent years. The revised CJC Ethical Principles for Judges include guidance for the use of social media.)

Regardless of their own pre-judicial activity, more recent appointees may be burdened with expectations from members of “their” communities about how they will conduct themselves or how they will make decisions — or about the decisions they will make. The process of judicial decision-making carries restraints that do not exist for the ordinary citizen.

There is an expectation, too, that judges will bring to the Bench their previous experiences. This means not only their particular legal expertise, but their personal background. It is expected that their background will inform their decision-making and if it does, it may simply be treated as explanation for their approach to the law rather than a form of bias.

In Fall 1990, Justice Bertha Wilson, who had been appointed to the Supreme Court of Canada in 1982, published an article in the Osgoode Hall Law Journal, “Will Women Judges Really Make a Difference?” (see here). (It may be an interesting digression that Justice Wilson quoted future Supreme Court Justice Abella as follows: “[e]very decisionmaker who walks into a courtroom to hear a case is armed not only with the relevant legal texts, but with a set of values, experiences and assumptions that are thoroughly embedded.” (“Women Judges”, p.510)

It has been acknowledged for some time that judges do not come to the Bench as blank slates without any predispositions — how could it be otherwise, for good or ill? The issue Justice Wilson was considering, however, was whether there is a more coherent “philosophical” distinction affecting judges’ approaches.

After reviewing judicial and scholarly commentary on the issue, Justice Wilson found favour with Carol Galligan’s view that women’s and men’s “ethical senses” or “conceptions of morality” differ: “Men see moral problems as arising from competing rights; the adversarial process comes easily to them. Women see moral problems as arising from competing obligations, the one to the other; the important thing is to preserve relationships, to develop an ethic of caring” (“Women Judges”, p.520). She concluded, “If women lawyers and women judges through their differing perspectives on life can bring a new humanity to bear on the decision-making process, perhaps they will make a difference. Perhaps they will succeed in infusing the law with an understanding of what it means to be fully human.” (“Women Judges”, p.522)

Justice Wilson herself had been a pioneer; much was made of her status as the first woman appointed to the Supreme Court of Canada. A National Post columnist reminds us of the way The Globe and Mail welcomed Justice Wilson to the Supreme Court: “’First woman is appointed to Canada’s top court’ (March 5 [,1982]). (This was followed by ‘Woman judge still avoiding press’ (March 9) and finally ‘Woman justice to take oath’ (March 26).) Abella’s and Louise Charron’s appointments in 2004 were hailed for approaching near-gender-parity on the top bench.” Such references are unavoidable, given the goal of increased representation of communities previously excluded.

(Several years ago, prompted by Justice Wilson’s article and the notion that men and women might see cases , particularly sexual assault cases, differently, I did a review of a number of Supreme Court of Canada sexual assault decisions. I found that while the women judges tended to see the facts and the application of the law through a particular lens, one that was more likely to support conviction of the accused, the majority of male judges, with one or two exceptions overall, consistently saw them through a different lens, one that tended to favour the accused’s acquittal. I do not know whether this would be true today, probably not.)

One might also ask a variation of Justice Wilson’s question: “Do Black judges really make a difference?” In 1997, the Supreme Court of Canada released a landmark decision involving a judge who brought her experience to bear on her decision-making: R. v. S. (R.D.). The case was about a Black youth accused of assaulting a police officer. During her oral reasons for acquitting the youth and in response to a question by the Crown, the Youth Court Judge made some generalized negative comments about police officers. She specified she was not making those comments about the police officer witness. The Crown successfully appealed on the basis of a reasonable apprehension of bias; the Court of Appeal upheld that decision.

The Supreme Court was divided. Three judges found the comments to be stereotyping police in their reactions to non-whites and this was just as bad as any stereotyping. Justice Major, for the dissent, pointed out, “The life experience of this trial judge, as with all trial judges, is an important ingredient in the ability to understand human behaviour, to weigh the evidence, and to determine credibility. It helps in making a myriad of decisions arising during the course of most trials. It is of no value, however, in reaching conclusions for which there is no evidence.” He continued, “The trial judge presumably called upon her life experience to decide the issue. This she was not entitled to do.” (R. v. S. (R.D.), paras. 13 and 14).

Even two judges who found there was not a reasonable apprehension of bias considered it close to the line, while four others considered they “reflect an entirely appropriate recognition of the facts in evidence in this case and of the context within which this case arose — a context known to Judge Sparks and to any well-informed member of the community” (R. v. S. (R.D.), para. 30). It is certainly possible that the “paradigm” judge would be thinking about how police too often treat Black youth (and unfortunately how some still treat Black men, in particular, and Indigenous people a quarter of a century later). But it was less likely in the mid-nineties. (For commentaries about this decision; see, for example, fn. 67 to Richard F. Devlin, “Begun in Faith: Continued in Determination”, in Adam Dodek and Alice Woolley, eds. In Search of the Ethical Lawyer (2016), p.109 for a list.)

It must be generally true that judges’ consideration of cases import, intentionally or not, their previous lives. That’s why we no longer see only appointments of straight white able-bodied middle/upper class men, although that is not to say that some, or even many, of them have exhibited great capacity to move beyond the narrow confines of their upbringing. Bringing personal experience to the Bench is a reason for celebrating as can be seen in comments about the most recently retired member of the Supreme Court of Canada, former Justice Rosalie Abella, and her replacement, Justice Mahmud Jamal.

Most stories about Rosie Abella refer to her accompanying her parents, survivors of the Holocaust, as refugees to Canada following World War II; she herself often refers to this in her speeches. Indeed, The Globe and Mail published a laudatory article about former Justice Abella by Sean Fine, entitled “How Rosalie Abella’s personal history shaped her legal legacy“. The kind of links Fine makes between Abella’s life experiences and her decisions have never given rise to a complaint to the CJC (to my knowledge).

While Justice Jamal’s splendid legal qualifications have been highly praised, at least as much attention has been paid to the fact that he is the first person of colour appointed to the highest court. For example, The Canadian Lawyer‘s story’s headline is “Legal community lauds nomination of Mahmud Jamal to Supreme Court of Canada”, followed by the subheadline, “Former litigator becomes first person of colour nominated to highest court”. In the story itself, the Canadian Bar Association President is quoted as saying, “‘at this point in time, … [the judiciary is] lacking in diversity in terms of Indigenous people, Black people, people of colour. … Justice Jamal’s nomination is a significant stride’ forward”; he continues, “He is also ‘an excellent candidate'” and is “‘super smart'” (emphasis added).

The McGill Reporter‘s headline is, “Mahmud Jamal becomes first person of colour to be nominated to the Supreme Court of Canada”. The article does address his excellent qualifications, but also his background in which he “experienced discrimination as a fact of daily life”. The Globe and Mail leads with an emphasis on his legal qualifications, but also mentions that the Prime Minister “was under pressure from minority and Indigenous organizations to make the Supreme Court more diverse”. Justice Jamal’s appointment, it seems, runs smack into the call for the appointment of an Indigenous member of the Supreme Court and suggests a competition among previously and currently excluded communities.

In my view, it is crucial that the courts at different levels bring a confluence of backgrounds and experiences that exhibit an appreciation of the experiences of the parties before them and that inform their decision-making and their experiences. Not all so-called “diverse” candidates will come with a history of activism of some kind, but that does not mean that they will not come with others’ expectations about how they will view the case before them or criticism because of how they have decided a case. (In fact, all candidates are diverse from one another and the time will come when an appointee’s background, ethnicity, sexuality and sexual orientation and so on will not be competing with the excellence of their legal qualifications because diversity will be taken for granted — it will become “inclusion” — although I’m not sure if I will live to see it.) How will this affect potential complaints against them?

FIVE CASES INVOLVING “CONTROVERSY”

Cases involving controversy do not of course necessarily involve judges from communities that have increased diversity on the Bench. They may be controversial because they are out of step with the evolution of law to acknowledge the experiences of previously marginalized groups (this is the case with the law on sexual assault, for example). And not all controversies stem directly from the judges’ own conduct; it may also derive from the response of others to the judge or judge’s conduct. Then the question becomes whether that is something the judge could control? or whether avoiding controversy would compromise the judge doing their job?

In addition to the McLeod case, the other four cases I consider are the following, all within the framework of “public controversy”, all involving federally appointed judges subject to the CJC’s ethical principles for judges: those of Justice David Spiro of the Tax Court, Ontario Superior Court supernumerary judge, now retired, Justice Patrick Smith, former Associate Chief Justice Lori Douglas of the Manitoba Court of Queen’s Bench, and former Justice Robin Camp of the Federal Court, previously of the Alberta Provincial Court. Each case raised different kinds of public controversy and they all raise a different form of controversy from the McLeod disputation.

There is one major difference between the consequences for provincial court judges (such as OCJ and Alberta Provincial Court Judges) and for federally-appointed judges who have been found guilty of misconduct at a level that brings the integrity of the judiciary into disrepute.

A panel finding that an OCJ judge has been guilty of misconduct and unable to perform the duties of office has several options available: it may “warn”, “reprimand” or “suspend” the judge, order the judge to apologize or take “specific measures” such as education or recommend to the Attorney General that the judge be removed from office. (See Courts of Justice Act, s.51.6(11).) Section 51.8(3) provides, “An order removing a provincial judge from office under this section may be made by the Lieutenant Governor on the address of the Assembly.”

In Alberta, Part 6 of the Judicature Act includes provisions relating to complaints against provincial court judges. The Chief Judge receives complaints against provincial court judges and if they find a judge has engaged in misconduct, may take one of several steps: reprimand the judge, “take corrective measures” or refer the matter to the Judicial Council (of Alberta) (Judicature Act, s.34(2)). Under section 34(4), the Judicial Council may “informally inquire” into the complaint and may take reprimand the judge or take corrective measures; it may also refer the matter to a judicial inquiry or “dismiss the complaint if it is frivolous or vexatious or is not about a matter in respect of which a complaint may be made”. The Chief Justice or Judicial Council may determine that “no further action need be taken”.

As in Ontario, if a judicial inquiry in Alberta finds there is a basis for the complaint, it has several options: to warn or reprimand the judge, require the judge to apologize to the complainant, “take specified measures, such as receiving education or treatment with or without taking a leave of absence and with or without pay” or be suspended with pay or retired or removed from office (in the last two cases, the Lieutenant-Governor may take appropriate action.

In contrast, the CJC has only one option: recommend removal from office. (See Judges Act, s.65(2).) Removal is addressed under section 99(1) of the Constitution Act, 1867: “judges of the superior courts shall hold office during good behaviour [subject to retirement at 75], but shall be removable by the Governor General on address of the Senate and House of Commons”. This does not prevent the Judicial Council from making comments about a judge’s conduct without recommending removal, but it does not have the scope of action or “dispositions” available under, for example, the Ontario or Alberta processes described above (see CJC, The Conduct of Judges, p.8).

As the CJC has noted in rejecting a challenge to its making comments about a judge’s conduct, even though it was not recommending removal: doing so can

  • help give complainants a reasonable understanding of the thinking that underlies the Committee’s decision; and
  • be useful to the judge to know how comments or conduct that give rise to complaints appear in the eyes of fellow judges.
  • (CJC, Sample of Complaints Received)

      Justice Donald McLeod

    A reminder that Justice McLeod had founded an organization, the Federation of Black Canadians (“FBC”), in 2016, three years after his appointment to the OCJ. The first hearing panel described the activities of the FBC as follows: “[They] 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” (IN THE MATTER OF a complaint respecting The Honourable Justice Donald McLeod [“Decision #1], para. 1).

    His founding of an organization that would be involved almost inevitably and even necessarily in political activity (in the sense of meeting politicians and lobbying them) if it wished to achieve its goals did not raise concerns in itself, it appears. (Perhaps because there was an effort to dress these activities in the guise of education.) Indeed, both panels avoided addressing this broad question. The second panel explicitly explained that it did not decide “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” (IN THE MATTER OF A HEARING UNDER SECTION 51.6 of the COURTS OF JUSTICE ACT, R.S.O. 1990, c. C. 43, as amended Concerning a Complaint about the Conduct of the Honourable Justice Donald McLeod [Decision #2], para. 21).

    It was not until 2017 that the Associate Chief Justice (ACJ) warned Justice McLeod that his activities with the FBC were leading him into ethical difficulties. Consultations with the OCJ’s Ontario Judicial Council (“OJC”) gave Justice McLeod sufficient confidence to continue his activities. Finally, however, the ACJ filed her own complaint with the OJC in February 2018. Threatened with suspension during the hearing, Justice McLeod ceased his activities, only to begin again after the hearing ended.

    The first hearing panel concluded that some of Justice McLeod’s activities with the FBC were incompatible with judicial office, but did not amount to judicial misconduct. It therefore dismissed the ACJ’s complaint. It blamed in part what it considered the ambiguity in the judicial ethics guidelines and believed that its decision would help clarify them.

    Justice McLeod’s travails were not over, despite the hopes of the first panel. He ignored their warning. This time, a member of the public filed a complaint about the conflict of interest arising from Justice McLeod’s involvement with an organization, the FBC, that undertook political activities, among other allegations. As did the first hearing panel, the panel hearing this second complaint dismissed some allegations, but held others were incompatible with judicial office, although once again not sufficient to conclude Justice McLeod was guilty of judicial misconduct. The panel issued a second “warning” to Justice McLeod to be more careful in the future.

    Two aspects of the McLeod case stand out: one, Justice McLeod’s own circumstances and two, the role of public controversy as it affects a judge.

    Justice McLeod had been committed to helping Black youth and the Black community more generally before being appointed to the Bench. He did not want to stop just because he was appointed a judge. Both panels praised his contributions to the Black community, including while he was a judge, and to the administration of justice.

    But, hard though it may be, a judge has to give serious thought to whether the contributions they made prior to becoming a judge are in harmony with their obligations as a judge. And in Justice McLeod’s case, his concern for Black youth ran up against one of the major aspects of his position as a judge of the OCJ. Justice McLeod’s position as a judge was in conflict with how he operationalized his desire to help the Black community through the FBC. It and other alleged misconduct also left him open to vociferous public criticism by other members of the Black community, giving rise to the second complaint.

    It also appears that both hearing panels were subject to cognitive dissonance over their assessment of the political nature of the judge’s activities (either directly or because of his public association with the FBC and its political activities) and their desire not to penalize a judge who was to a considerable degree (although obviously not by all) much admired and who stood for the diversification of the Bench.

      Justice David Spiro

    The University of Toronto’s Faculty of Law had a position available as director of the International Human Rights Law Program (“the Program”). The hiring committee recommended Dr. Valentina Azarova, identified on the website of the University of Manchester, Manchester International Law Centre, where she was a visiting scholar, as “an international law practitioner and researcher with 15 years of experience advising international and local inter- and non-governmental organisations, governments and investigative journalists as well as over seven years of experience teaching international human rights law and practice.” In The Globe and Mail, a professor from Israel’s Haifa University’s law school described her scholarship critical of Israel’s policies in the occupied territories as “both grounded in international law and generally shared by a large number of legal scholars both in Israel and outside of the country”.

    Not everyone viewed her scholarship this way, however, most notably, in this context, The Centre for Israel and Jewish Affairs (“the CIJA”).

    (For a summary of the story, see The Globe and Mail, “U of T law school under fire for opting not to hire human-rights scholar after pressure from sitting judge“; also see Thomas Cromwell’s report, commissioned by the President of the University of Toronto, Independent Review of the Search Process for the Directorship of the International Human Rights Program at the University of Toronto, Faculty of Law [“Report”]; the CAUT explanation of why it decided to impose censure; Michael Mostyn, “Anti-Semitic boycott of University of Toronto is a threat to diversity of thought in academia“, National Post; for Tweets in support of the U of T censure, see #UofTcensure).

    There was disagreement about whether the candidate was actually offered the position. She said she had been and that she had accepted. The University’s position was that certain immigration issues had to be resolved before it could confirm an offer. The Dean of the Faculty of Law, Ed Iacobucci, also raised whether Dr. Azarova was suitable for what was primarily an administrative and not a faculty academic position. He has denied he made an offer to Dr. Azarova. There is considerable conflict around all these and other issues. The upshot was resignations from the hiring committee and the advisory board of the Program, and CAUT’s censuring of the University of Toronto.

    My concern here, however, is not all the things that might or might not have happened with the candidate; I refer to the above only as background to indicate how controversial the situation became because Justice Spiro’s involvement occurred early in the game. It was after that that things became turbulent.

    David Spiro had been a member of the Board of Directors of the CIJA before his appointment to the Bench. He was also an alumnus of the University of Toronto Faculty of Law and was even subsequently a significant supporter, including financially. His family had also donated considerable monies to the University. In short, he was the kind of person university officials do not like to ignore. (Not that big donors are always successful in getting their way: see The Globe and Mail, “York abandons plans to accept $30-million from Balsillie’s think tank“.)

    A staff member of the CIJA had informed Justice Spiro about the possible appointment of Dr. Azarova and had asked the judge to convey the concerns the CIJA had about the appointment to the Dean of the Faculty of Law. Justice Spiro did not consider it appropriate to discuss the matter with the Dean, but he did raise it in a pre-arranged stewardship telephone conversation the Assistant Vice President at U of T initiated. According to Thomas Cromwell, the AVP

    remembered that the Alumnus indicated that as a judge he could not become involved but
    that he wanted to alert the University that if the appointment were made it would be controversial and could cause reputational harm to the University and particularly to the Faculty of Law. He wanted to ensure that the University did the necessary due diligence. (Report, p.32)

    Not surprisingly, the Dean became aware of Justice Spiro’s concerns (as well as the fact the candidate’s name was known outside the confidential group) at the same time as, according to the Dean, he became aware of the candidate. He said he understood that the candidate’s scholarship might be controversial to some people, but he was not concerned about that; his concern, he said, was the immigration status. He also considered the position an administrative one, not an academic/faculty one, and thus subject to different rules.

    The CJC received complaints about Justice Spiro’s involvement in the Program’s hiring. According to the CJC’s press release, “The conduct of Justice Spiro was alleged to have put the integrity and impartiality of the Tax Court of Canada in jeopardy, and cause any party or lawyer before the Court who is Palestinian, Arab, or Muslim to reasonably fear bias.” The Review Panel considered Justice Spiro was acting as a previously “very engaged alumnus” rather than as a judge when he raised the concerns. Furthermore, “The Review Panel was of the view that Justice Spiro was voicing his concerns about the potential impact of the appointment and associated controversy on the University and the Faculty, as opposed to actively campaigning or lobbying against the appointment.”

    According to the Review Panel, prior to his appointment, Justice Spiro had worked to build bridges between the Israelis and Palestinians and “nothing in the career of Justice Spiro or his work supports the suggestion of perceived bias on his part against Palestinian, Arab or Muslim interests.”

    The Review Panel concluded “it was an error for Justice Spiro to raise such concerns in the manner he did. The judge properly recognized the mistakes he made and expressed remorse.” Although serious, this error did not warrant removal from office.

      Former Associate Chief Justice Lori Douglas

    In the Douglas case, the Inquiry Committee was required to determine whether the allegations against Manitoba Associate Chief Justice (“ACJ”) Lori Douglas had “rendered her ‘incapacitated or disabled from the due execution of the office of judge’ within the meaning of subsection 65(2) of the [Judges] Act.” If so, the Committee had to decide if her conduct warranted removal. (See Notice to Associate Chief Justice Lori Douglas [“Notice of Allegations”], p.1.)

    Section 65(2) of the Judges Act lists four reasons why a judge might be “incapacitated or disabled from the due execution of the office of judge”, with the two most relevant being the following: “having been guilty of misconduct” and “having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of that office” (emphasis added).

    What did ACJ Douglas do that led to the complaints? She allowed her husband to take sexually explicit photos of her before she was appointed to the Bench. In 2003, he had abused his relationship with her by revealing their private sexual conduct to a third party (Chapman) who then publicized it. Her husband made his continued provision of legal services to Chapman conditional on Chapman’s sexual involvement with the ACJ and her husband. This was a case of placement “otherwise” in a situation raising concern about suitability for office.

    The husband had posted graphic photos of Douglas on a website and had emailed graphic photos to Chapman, without her knowledge. (She knew he had “taken” pictures, but thought the camera was empty.) Chapman made a complaint to the CJC in 2010. The allegation was that these acts were intended to convince Chapman to have a sexual relationship with Douglas who should have known this conduct would “cause Mr. Chapman discomfort” and was inappropriate (Notice of Allegations, p.2). Subsequently, the CJC received anonymous discs with sexually explicit images of the ACJ; the then executive director of the CJC treated these as a second complaint.

    Douglas had applied for a judgeship in 2004, answering “no” to a question asking whether there was anything that might reflect negatively on herself or the judiciary and that she should disclose. She thought people knew about it and apparently, members of the Manitoba legal community were well aware of these events. The selection committee did know about it, assessing her as “qualified” rather than “highly qualified” (see a Canadian Lawyer story here.)

    The ACJ also modified diary entries relevant to an encounter with Chapman and made incorrect representations to the Independent Counsel for the Inquiry. These actions were examples of misconduct, but under the circumstances might well have been considered understandable. It seems, however, that the more salacious aspects of the allegations were more important; the allegations alleged that the photos, appearing on the internet “from time to time” as they did, were contrary to the integrity of the judiciary.

    The subsequent inquiry (which began in December 2010 with the appointment of a Review Panel, followed by the appointment of an Inquiry Committee in September 2011) wove a harrowing path through a thicket of motions to court and directions of the Inquiry Committee, which eventually resigned, to be replaced by another committee. In December 2014, the Inquiry Committee adjourned the inquiry until May 2015, after the ACJ agreed to retire.

    Obviously, the allegations in the Douglas case were controversial, but the CJC’s proceedings also became controversial in part because of its treatment of ACJ Douglas. (See, for example, Kyle Kirkup’s opinion piece in The Globe and Mail: “The legal inquiry into Justice Lori Douglas must end“.)

      Justice Patrick Smith

    The next case in this group is the Smith case, which I wrote about on my own blog in November 2018 and on Slaw previously (January 6, 2020), the latter focusing on the interpretation of the Judges Act.

    Then a supernumerary judge, Justice Smith accepted an unpaid position as Interim Dean (Academic) of the Bora Laskin Faculty of Law, which was having its own public relations controversy amid allegations of racism. Its dean, Angelique EagleWoman, had resigned early with allegations about systemic issues at the University and difficulty in satisfying her mandate at the school (see CBC report here). (She had replaced the school’s first dean who had also resigned early.) Justice Smith sat in the Northwest Region and had practised law in Thunder Bay for 25 years. He was well known and respected. He received permission from then Chief Justice Heather Forster Smith (no relation) for a leave to take the position; the Chief Justice in turn advised the Minister of Justice of Canada.

    As I wrote in my November 2018 post, one might have thought a complaint would come from members of the Indigenous community. After all, the Faculty of Law prided itself on its focus on Indigenous issues, Justice Smith was replacing an Indigenous dean and a decade earlier, Justice Smith “had sentenced members of the Kitchenumaykoosib Inninuwug (Big Trout Lake) Council to prison for contempt of court when the Nishnawbe Aski Nation had been fighting against mineral activity on their traditional territory on the basis that the land was theirs”. The Nishnawbe Aski Nation initially announced that it considered the selection of Justice Smith “an insult”. Discussions with the community had muted that concern somewhat, however.

    Nevertheless, the (former) executive director of the CJC, after sending letters to Chief Justice Smith and Justice Smith cautioning against Justice Smith’s decision, initiated a complaint before the CJC. Justice Smith began his duties as Interim Dean on June 1, 2018; Quebec Senior Associate Chief Justice Robert Pidgeon referred the complaint to a review panel on August 28th and Justice Smith resigned as interim dean and resumed his judicial responsibilities. He retired in October 2020 (see Lake Superior News here) after some 20 years on the Bench.

    Justice Smith had many supporters who spoke on his behalf, including then Senator Murray Sinclair. The Review Panel decided that while Justice Smith should not have taken the position, his conduct did not warrant dismissal from the Bench and therefore, it did not refer the matter to a committee of inquiry. The Federal Court eventually vindicated him. The Federal Court decision provides considerable background detail about the president of Lakehead University’s request to Justice Smith to act as a temporary dean and subsequent events.

    The Court rejected the Review Panel’s interpretation of sections 54 and 55 of the Judges Act and found that Justice Smith did not act unethically. (An argument that the ethical concerns the Federal Court effectively dismissed are in fact worth treating more seriously, see Stephen Pitel’s Slaw post here.)

    The CJC’s Ethical Principles for Judges (“Principles“) state that judges are able to participate in community activities, but need to be wary of “jeopardiz[ing] the perception of impartiality” (Principles, Article 5.B.11). Certain organizations, including universities, pose risks: they may become involved in litigation or “be the subject of public controversy”, placing the judge in “an awkward position, both in relation to public confidence in the judge’s impartiality and in the judiciary as a whole”. (The former Principles said much the same.)

    Senior Associate Chief Justice Robert Pidgeon referred the Smith complaint to an inquiry committee because he concluded that Justice Smith “engaged in misconduct by accepting a position as Interim Dean without considering the possible public controversy associated with the reaction from the chiefs of First Nations and without considering the political environment or the potential effect on the prestige of judicial office” (See Reasons for Referral, pp.10-11).

    As did the inquiry into ACJ Douglas’s conduct, the inquiry into Justice Smith’s acceptance of the interim dean position attracted much criticism. As Zinn J. of the Federal Court tartly observed in accepting the comment of the Canadian Superior Court Judges’ Association, “’CJC’s response to Justice Smith’s acceptance of the appointment resulted in a torrent of public criticism, not of Justice Smith or his conduct, but of the CJC itself.’ This criticism from judges, lawyers, and the public directed to the CJC’s conduct far outweighs and is more damning than the sparse coverage directed to Justice Smith.” (Federal Court decision, para. 127)

      Former Justice Robin Camp

    The Camp case differs from the others I have discussed because the alleged misconduct occurred while he was presiding over a criminal trial. Three of the other four judges were involved in activities outside their “judicial” duties and the fourth was on leave from his judicial duties (although all of them were expected to act in conformity with the ethical responsibilities as judges).

    Robin Camp made highly controversial comments during a sexual assault trial when he was a provincial court judge in Alberta (“the Wager trial”). He released his decision acquitting the accused in September 2014. (The Crown appealed and the Court of Appeal ordered a new trial.) Camp was subsequently appointed to the Federal Court in June 2015. Beginning in November 2015, there were a number of complaints about Camp to the CJC. In addition, “collective media reports show a significant public interest in Justice Camp’s comments and widespread criticism of certain questions that he asked the complainant.” (See Agreed Statement of Facts.)

    The Attorney General of Alberta made a complaint against him and the CJC established an inquiry committee as the Judges Act requires when the attorney general of a province requests the CJC to review whether a superior court judge be removed from office (see CJC, Press Release [January 7, 2016]).

    The allegations against Camp were that he “made comments which reflected an antipathy towards legislation designed to protect the integrity of vulnerable witnesses, and designed to maintain the fairness and effectiveness of the justice system” and he “engaged in stereotypical or biased thinking in relation to a sexual assault complainant and relied on flawed assumptions which are well-recognized and established in law as rooted in myths”, made outdated, sexist or inappropriate comments to the complainant, complainant’s counsel, the Crown and the accused (Amended Notice of Allegations).

    The Redacted Statement by the complainant is also included in the materials on the CJC’s website. It details the way Camp’s questions and treatment made her feel (“He made me hate myself” and “I continue to struggle with suicidal thoughts, depression and anxiety….”, among other consequences for her.)

    Two law professors had written an opinion column in The Globe and Mail in November 2015 (they were among the four professors who complained to the CJC). When Justice Camp became aware of the opinion piece, he wrote a letter of apology, which he asked be posted on the Federal Court website. He also “engaged in a process of [voluntary] mentoring, counseling and teaching, from a senior judge, a psychologist and a law professor, respectively” (see Agreed Statement of Facts.)

    Apparently, those who worked with him on these efforts, concluded he had learned from them, although after asking him some questions the Inquiry Committee disagreed: In the Matter of an Inquiry Pursuant to s. 63(1) of the Judges Act Regarding the Honourable Justice Robin Camp Report and Recommendation of the Inquiry Committee to the Canadian Judicial Council [“Inquiry Report“], paras. 297-313 and 314ff.

    The Inquiry Committee decided nothing he could do could save him: “in the particular circumstances of this inquiry, education—including social context education—cannot adequately repair the damage caused to public confidence through his conduct of the Wagar Trial” (Inquiry Report, para. 8). The Inquiry Committee concluded, “Justice Camp’s conduct in the Wagar Trial was so manifestly and profoundly destructive of the concept of the impartiality, integrity and independence of the judicial role that public confidence is sufficiently undermined to render the Judge incapable of executing the judicial office”. It noted,

    A judge performs a unique role in society and his or her capacity to continue in the execution of that role cannot be judged without regard to the perspective of those who would most likely be affected by the Judge remaining in office. That is not to say that such a perspective is the sole or the dominant one in evaluating public confidence, but it is one that should be included, and must be understood. (Inquiry Report, para. 252)

    It recommended Justice Camp’s removal from the Bench. Camp subsequently resigned.

    (Had Justice Camp been the subject of a complaint before being appointed to the Federal Court, he would have been subject to the procedures in Alberta with possibly (and possibly not) a different result. He did not engage in misconduct during his short time on the Federal Court. If his rather swift rise to the Federal Court was meant to avoid an inquiry into his conduct [not that I have any reason to think so], it didn’t work.)

    LESSONS ABOUT CONTROVERSY AND JUDICIAL CONDUCT

    What do these five cases tell us about the impact of judges’ involvement in public controversies? Indeed, what constitutes “public controversy”?

    The OJC’s Principles of Judicial Office do not address controversy explicitly. However, as I already indicated, the OJC also relies on the CJC’s Principles, which refer to avoidance of public controversy arising out of, for example, judges’ public commentary. Judges’ commentary “on proposed legislation or on other questions of government policy should relate to practical implications or legislative drafting and should avoid issues of political controversy” (former Ethical Principles for Judges, D.7; a similar statement is found in the revised Principles [Impartiality, Commentary 5.B.3]). The concept of “public controversy” is broader, however. For example, the former Principles refer to “examples of Judicial Commissioners becoming embroiled in public controversy and being criticized and embarrassed by the very governments which appointed them” (although it does not name any) (Judicial Independence, Commentary 8) (the revised Principles do not make this reference).

    The revised Principles refer to the perception the public may have of judges’ conduct, intimating that might result in controversy (“Judges should therefore be mindful of the ways in which their conduct would be perceived by reasonable and informed members of the community and whether that perception is likely to lessen respect for the judge or the judiciary as a whole.” [Integrity and Respect, Commentary 2.A.2].) Again, the potential for controversy may be implicit: the revised Principles identify one concern about public involvement by a judge as “whether such involvement may expose the judge to criticism or be inconsistent with the dignity and integrity of judicial office.” (Impartiality, Commentary 5.B.1)

    University service is “inherently problematic”, according to the revised Principles: “The risk that such organizations will become involved in litigation or be the subject of public controversy creates the possibility that the judge will be placed in an awkward position, both in relation to public confidence in the judge’s impartiality and in the judiciary as a whole.” (Impartiality, Commentary 5.B.13) Among other factors, when deciding whether to give public speeches, judges should consider “whether the topic or the judge’s remarks relates to a matter of public policy or public controversy” (Impartiality, Commentary 5.B.20).

    In the case of Justice McLeod, the hearing panels thought he should have foreseen that his involvement with the FBC, particularly certain aspects of it, would be subject to criticism (or had a good chance of being) from members of the Black community who had different views than his about how to assist members of the community. Should he be blamed for the response of others? Foreseeability matters. But really it is his other conduct that is the problem: his active participation in events that come close to lobbying; attendance at events at which politicians are in attendance — not incidentally, but in furtherance of the purpose of the event; or speeches about public policy.

    Although neither panel was concerned with it, one has to question his founding of an organization that could not avoid political activity or lobbying, at least informally, in furtherance of his objectives. Justice McLeod stepped into public controversy when he decided to initiate the FBC and its contacts with politicians. However, what is of interest, is that there were no complaints against him until the involvement of politically-motivated activists. This was evident even when the ACJ brought her concerns to his attention.

    In fact, media stories quote Black activists as questioning how a judge who is involved in a political organization can be impartial:

    “I have a hard time understanding how someone whose job it is to remain neutral can be the head of an advocacy organization,” said Sandy Hudson, co-founder of Black Lives Matter Toronto.
    “Especially a national black advocacy organization, when one of the number one things that is facing black people in this country today is our relationship with policing, incarceration and the justice system.”

    Activist and journalist Desmond Cole, who has written extensively about racial discrimination in Canada, also said he believes having a sitting judge advocate publicly is ethically problematic.
    “I think this kind of behaviour from a sitting Ontario judge is just scandalous,” he said. “I don’t know what other word to use.” (CBC News)

    The CBC news story also quoted Cole and Hudson as criticizing the FBC for its lack of connection to “the grassroots” and for, in their view, its links to the Liberal Party.

    The first Inquiry Panel noted,

    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 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 [OJC’s] 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 [to the CJC’s Ethical Principles for Judges] note, Justice McLeod should have avoided involvement that could have unnecessarily exposed him to political attack: 6.D.5, p. 41. (Decision #1, para. 90)

    The lesson here? That a judge can participate in partisan activities as long as no one cares about it? That a judge shouldn’t engage in partisan activity regardless of whether anyone cares about it? Does it make a difference if the activities are characterized as “educational”? The problem facing Justice McLeod, it seems, is that regardless of his own pure motives, if other people genuinely disagree with him and say so publicly or just want to create a fuss, he has a problem.

    His eagerness to help his community seems to have made him oblivious to what he must have known were very different views in the Black community about how to address some very real problems. This alone suggests that his conduct was at least entering political territory. But perhaps he believed that just because others disagreed with him shouldn’t restrict him. Can he be blamed for the responses of others? After all, judges are often criticicised. The core problem for Justice McLeod was that his critics did not direct their comments to his judicial pronouncements, but to his extracurricular activities with the FBC.

    A subtext of the criticism of Justice McLeod also reflects what Melayna Williams and Lincoln Anthony Blades, in a Maclean’s Opinion, call

    mistrust of so-called “Talented Tenth” activism which is predicated on the reliance of the influential and the affluent in our communities to help support the rest of us, instead of just helping themselves and their ilk. This is a key cornerstone of the current controversy surrounding the FBC: Appearances matter. Who appears to be truly committed to the cause of dismantling white supremacist structures in totality, and who appears interested in gatekeeping and faux-activism? Who seems to desperately and genuinely want to see their community improved, and who seems to be simply taking advantage of the limited finances, goodwill and trust of the Black Canadian community? (“‘Not in mixed company’: The tensions in Black Canadian advocacy”)

    A Twitter account, Justice for Justice McLeod@Justice4McLeod, defended Justice McLeod and castigated those who had spoken against him (see https://twitter.com/justice4mcleod?lang=en). One commentator, writing about the dismissal of the second complaint against Justice McLeod, engaged with the internecine fight by condemning BLM and citing its ties to corporations (Jamil Jivani, “Judge Donald McLeod’s exoneration has exposed the feebleness of Black Lives Matter’s Marxist agenda”, National Post).

    Omar Ha-Redeye discusses the context of the intra-Black community disagreements in his post following the release of Decision #1: “A Place Apart, Yet in the Community“. One of the first allegations against Justice McLeod related to the FBC’s dealings with the government concerning Abdoulkader Abdi’s deportation; Abdi had lived in Canada most of his life and was facing criminal charges. Ha-Redeye explained,

    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.

    Ha-Redeye points out that it is not necessarily possible to foresee whether a judge’s actions will cause controversy “because there are in fact many Black communities in Canada, who all have their own voices, issues, agendas, and priorities”. This may be true, but one has to assume (doesn’t one?) that Justice McLeod was not so naive that he did not know about these loud disagreements. Certainly, he was aware when he continued to involve himself in the FBC’s work after the first decision.

    Justice Spiro should have known better. While he was an alumnus of the law school, he had also been a donor and his family donated to the university. The CIAJ asked him to call because his concern would carry weight. But it is impossible to separate these other connections from his current status as a judge. (The review panel’s approach to this was either naivety or intentional generosity.) He knew enough not to speak to the dean, but he couldn’t resist the opportunity to mention it to the AVP when he had the chance. He had to know that the AVP would communicate the concern to the dean.

    His conduct was questionable regardless of whether it created public controversy or embroiled him in public controversy. Was what followed foreseeable? Did it arise from his call? He said he simply wanted to alert the school to the possibility of controversy (from the Jewish community).

    The source of the enormous controversy that followed was not the Jewish community, but those who believe that the decision not to hire the candidate was anti-Palestinian. It is difficult to unravel the sequence of events to determine whether Justice Spiro’s call was the trigger for a change in the dean’s decision to hire the candidate or not or whether the dean’s explanation is what actually happened. Does it stem from the internal workings of the faculty, a dispute between the hiring committee and the dean and their respective responsibilities? from confusion about whether the candidate was offered the job or not, an offer then rescinded? is it about politics or scholarship? or about the nature of the position?

    Those who have instigated and support the CAUT censure do not accept the Cromwell Report, which the university presents as a neutral review of the situation. Justice Spiro may wonder how the situation reached this point, but it is fair to say that his involvement stemmed from a political concern. He should have refused to accept the CIAJ’s request (although if one did not appreciate the potentially explosive subtext, a casual comment might have seemed safe enough, even within a “stewardship” conversation). (In my experience as a dean, donors often think nothing of casually expressing their views about how the law school is run.)

    Justices Spiro’s and McLeod’s situations bear a (passing?) resemblance to each other: each engaged in conduct that in itself was inappropriate for a judge (Justice Spiro once, Justice McLeod many times), but the real difficulty arose because of a public controversy engendered by others. The controversy is linked to the judges’ conduct, but it is also separate from it.

    In Justice McLeod’s case, the controversy was with the Black community; it was an internal dispute about how to improve the lives of members of the Black community (or communities). It obviously related to matters beyond the judge, but because the judge was so active in pursuing his goals, he was caught up in it. Although it does not seem to have been the case, one wonders whether his judicial decisions might also be the subject of controversy and then we do get into murky waters.

    Justice Spiro’s case was a reflection of a far broader public controversy, this time being played out within the configuration of an academic dispute. CAUT believes the specific events at U of T, including Justice Spiro’s phone conversation, warrant censure, as it explains:

    The case of Dr. Valentina Azarova gained international attention when the University of Toronto’s Faculty of Law abruptly ended negotiations to hire her as the Director of the International Human Rights Program (IHRP). This followed immediately after concerns were raised by a major donor and sitting judge over Dr. Azarova’s academic work on human rights in Israel and Palestine. After a lengthy review of the case, CAUT Council imposed a rare censure on the University of Toronto administration, concluding that the decision to cancel Dr. Azarova’s hiring was politically motivated and as such constitutes a serious breach of widely recognized principles of academic freedom. (CAUT, “Censure against University of Toronto”)

    However, the controversy underlying this situation is not limited to U of T. It is highly political and contains elements of the on-going and extensive controversy relating to the Middle East. It may well have occurred without Justice Spiro’s involvement. Unlike Justice McLeod, however, Justice Spiro was serving as a messenger for a body that sought to intervene in the hiring because of what it perceived to be the candidate’s political stance; those believing differently were on the opposite side of a highly combustible dispute. Justice Spiro should have appreciated that he was an instrument in this ongoing controversy.

    The cases of Lori Douglas and Robin Camp also share similarities, but they are also very different.

    Former ACJ Douglas’s particular sexual activities with her husband and her husband’s conduct in relation to Chapman had already begun before she even applied to be a judge. Douglas was a victim of cyber bullying. She did not create the controversy. As the Canadian Lawyer story explains, some members of the Manitoba legal community, including at least one judge, believed it was inappropriate to hold a hearing in the first place, but subsequent events came close to ruining Douglas’s life. As Kirkup concludes,

    History will not be kind to the CJC for its handling of this complaint. Justice Douglas should not be forced to continue to unwittingly star in a remake of The Scarlet Letter, cast as a modern-day Hester Prynne and punished because she dared to allow her former husband to take private, sexually explicit photos of her.

    ACJ Douglas’s life became controversial because both her husband and Chapman behaved badly. It became controversial because the CJC evidently had no qualms about exposing a female judge’s personal life to the world. Lori Douglas became defined by her sexual conduct, even though her husband and Chapman were the wrongdoers.

    Camp’s case is also about a woman’s sexuality, again because of someone else’s treatment of her, this time in the form of sexual assault. Former Judge Camp’s comments at trial and in his decision acquitting the accused revealed how he expected a woman to behave. His comments constituted an extreme example of the myths and stereotypes popping up in judges’ comments and decisions over a period of many years and still today. At least, they were extreme in their variety and in their number, but not in their kind. In recent years, (mostly male) judges’ comments in sexual assault cases have been startling; they have been addressed by appellate courts (see, for example, my Slaw post on two Ontario cases: “Are Some Judges Just Slow Learners: Myths and Stereotypes in Sexual Assault Cases“;there have been many articles and opinion pieces in national newspapers on this issue).

    Camp provided an excellent opportunity for the CJC to show that it is on the side of the angels in castigating judges who haven’t kept up with the times and whose outdated understandings of and attitudes towards women and the sexual power dynamics between men and women are an embarrassment to the courts, just as former ACJ Douglas’s experience was. However, Douglas was a victim, Camp an agent of injustice to the victim in the Wagar case.

    Once the initial response by the Nishnawbe Aski Nation had diminished, there was no controversy in the Smith case until, again, the CJC created it. Smith and the law school/university had been careful to tailor the appointment and duties to avoid it. It is true that it was his status as a judge that led the university to ask him to assume the appointment and one mistake he did make was to pose for his formal photo in his judges’ robes. It is also true that EagleWoman was threatening litigation, but this did not mean Smith would be involved in that and could recuse himself if it arose, as he said he would (and as the Federal Court accepted). The public controversy the CJC warned the judge about was, as Justice Zinn of the Federal Court asserted, the controversy the CJC itself created by allowing the complaint by its then executive director to proceed.

    CONCLUSION

    Any judge who steps out from the courtroom seems vulnerable to becoming embroiled in public controversy. Indeed, they do not need to put their foot out the door if someone else decides to create controversy. But those who decide that they should continue the good works they engaged prior to appointment might well become a target of those whose own views about the nature of those works differ. As judges are increasingly encouraged to participate in public life and perhaps those whose background includes activism in factional communities need to think carefully about how their actions are perceived. Those policing judges’ conduct also need to think carefully about what part public controversy plays — who is responsible, its source and why it exists — before assuming judges can foresee it, control it or avoid it.

    As for judges whose conduct on the Bench and reflected in their decisions lead to public controversy, the issue becomes when the conduct is too extreme to be addressed through the appellate process. In Camp, the CJC had to begin an inquiry because the Alberta Attorney General made a complaint. Otherwise, would the public controversy about his comments have been sufficient for the CJC to act, especially since he was now a judge of a court far less likely (although not ever) to see sexual assault cases?

    The McLeod, Spiro, Douglas, Camp and Smith cases illustrate, but do not exhaust, the various ways in which judges may become embroiled in controversial situations. The new CJC Principles hardly help illuminate a clear path through these situations; like the old Principles, they are meant as guidance, leaving much to the discretion of judges. Perhaps that is all they can be. The OCJ Principles are even less helpful.

    The application of the Principles to public controversies involving judges relies on the smart interpretation of the Principles and the facts of the situation throughout the CJC (and provincial) processes. Those responsible must determine where the responsibility for controversy arises and the implications of taking into account the “perception of those who would most likely be affected by the Judge remaining in office” (Camp). Not an easy task. Yet it is the capacity of judges to judge themselves — and the independence of the judiciary (for who else can investigate judges?) –that is at stake if CJC or provincial inquiry decisions are more responsible for controversy than the conduct of the judges being investigated.

    Comments

    1. Unfortunately, former Justice Abella was the subject of a particularly scurrilous claim based on her own background, made by lawyer Guy Bertrand on behalf of his client, who stood accused of crimes against humanity in Rwanda. She had recused herself because her husband was chair of the War Crimes Committee of the Canadian Jewish Congress, a party to the proceedings, but Bertrand alleged that by her mere membership in the Court, “an extensive Jewish conspiracy was hatched to ensure that the Minister’s appeal would succeed and that the respondent Mugesera and his family would be deported”: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 39, para. 9. Bertrand was later (mildly) disciplined for his submissions: Guimont c. Bertrand, 2005 CanLII 57406 (QC CDBQ).

    2. Patricia Hughes

      Thanks very much for this information, David. It’s a helpful (if sad? Offensive?) clarification.

    3. In the words of a unanimous court: “Regretfully, we must also mention that the motion and the documents filed in support of it include anti-Semitic sentiment and views that most might have thought had disappeared from Canadian society, and even more so from legal debate in Canada. Our society is a diverse one, home to the widest variety of ethnic, linguistic and cultural groups. In this society, to resort to discourse and actions that profoundly contradict the principles of equality and mutual respect that are the foundations of our public life shows a lack of respect for the fundamental rules governing our public institutions and, more specifically, our courts and the justice system.”

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