Canadian Lawyer - sample

w w w . c a n a d i a n l a w y e r m a g . c o m M A Y 2 0 1 9 29 should be a monk in a monastery," says Wayne MacKay, professor emeritus at the Schulich School of Law at Dalhousie University. "We are increasing the diversity of the judiciary. If we do not allow that diversity to be expressed, we are losing that value," he suggests. The law professor wrote a paper in 1993 enti- tled "Judicial Free Speech and Accountability: Should Judges Be Seen but Not Heard?" that was later cited by the Supreme Court of Canada in an appeal related to the conduct of a youth court judge in Quebec. "It is not desirable that judges cloister themselves away from the real world from which their cases arise," he wrote. At the same time, MacKay says, it is not an easy issue for judges to grapple with, even now. "You have to be careful about what you say. It is much more complicated in a time of social media. You should be involved in your community but consider whether any specific acts might be prob- lematic," he says. The issues raised in that academic paper seem just as relevant in 2019, considering two recent disciplinary decisions involving Ontario judges. Superior Court Justice Patrick Smith was found to have breached a section of the Judges Act when he agreed to serve as the interim dean of the law school at Lakehead University in Thunder Bay, Ont. after an "urgent request" by the institution's interim president. Smith obtained permission from the chief jus- tice of the Superior Court in Ontario as well as the federal justice minister to take the position for six months, without pay and under specific conditions. A review panel of the Canadian Judi- cial Council decided that the "public controversy" that included criticism by First Nations groups amounted to a violation of a section of the statute. Smith was not sanctioned because his actions were in good faith. The judge is seeking judicial review of the judicial council's finding, although it is on hold pending a decision in another discipline case on whether its decisions can be subject to review by the Federal Court of Canada. "What is the message coming from the Cana- dian Judicial Council?" asks Brian Gover, who is representing Smith. "My concern is the consid- eration of what is a 'public controversy' when the public may not be well informed," adds Gover, a partner at Stockwoods LLP in Toronto. In the other proceeding, Justice Donald McLeod was admonished by the Ontario Judicial Council, although not sanctioned, for his role in an organization he co-founded to look at ways to assist young members of the Black community and to try to break the cycle of gun violence. It said the "laudable goals" of the provincial court judge did not excuse actions that created the perception he was entering the political arena. Among the many letters of support provided to the disciplinary panel were five from McLeod's judicial colleagues. Justice Jill Copeland described McLeod as someone who approaches his duties in an independent and impartial fashion and treats people in the courtroom with empathy and respect. "Diversity is also important outside the court- room in terms of role modelling and education. As a woman judge, in a context where there are still challenges in relation to equal progress for women in the legal profession and in society, I feel particu- lar obligations with respect to showing younger women that they can have a successful career, that they can aspire to the bench," says Copeland, who is now on the Superior Court and is a former executive legal officer of the Supreme Court. Lori Anne Thomas, president of the Canadian Association of Black Lawyers, points out that one of the considerations for judicial applications is a lawyer's involvement in the community. "To be cut off, if you are appointed, basically leads to an ivory tower situation. You should be careful, but you should not be separated from your com- munity," says Thomas, who is also a member of the executive committee of the Ontario Criminal Lawyers' Association. We are increasing the diversity of the judiciary. If we do not allow that diversity to be expressed, we are losing that value."

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