Canadian Lawyer - sample

30 M A Y 2 0 1 9 w w w . c a n a d i a n l a w y e r m a g . c o m McLeod was raised by a single parent in mod- est circumstances in Toronto. He was a defence lawyer before his appointment to the bench in 2013. According to Thomas, the importance of appointments of individuals from communities that are not well represented on the judiciary can- not be underestimated. "It is inspirational. They are constantly being called upon and in demand to speak," says Thomas. In Ontario, at least, some recent disciplinary proceedings have created a "chilling effect" among members of the judiciary in terms of community involvement, she says. The review of ethical principles for federally appointed judges by the Canadian Judicial Coun- cil is sorely needed, says law professor Richard Devlin. "The world has changed dramatically over the past 20 years," says Devlin, a professor at Dal- housie and chairman of the Canadian Association for Legal Ethics. "We should be allowing judges to be more active in the community. We do not want them to be disconnected," he says. The fundamental difficulty is in defining what is acceptable. "It is a tricky question. There is never going to be a bright line. If judges are too involved in the community, they may have to recuse them- selves from certain cases. That could be a real issue in smaller communities," Devlin says. In its decision in the McLeod disciplinary hearing, the panel warned against judges engag- ing in extra-judicial activity that seeks policy changes unless it is "directly tied" to the adminis- tration of justice. Even in this context, however, these types of actions may result in public criticism. In Decem- ber 2016, the Manitoba justice minister and the province's three most senior judges sent a letter to the federal justice minister, asking for legisla- tive amendments to limit the right of criminal defendants to a preliminary hearing, as part of a pilot project. The letter stated that the goal was to reduce delays in the criminal justice system. The request was criticized by the Criminal Defence Lawyers Association of Manitoba and the Canadian Bar Association. They noted that, on average, only three per cent of criminal cases in the province had preliminary hearings each year. "Anyone who seeks to fun- damentally overhaul the criminal justice, as is proposed here, should provide evidence to support that the change will have the desired result," the criminal lawyers group wrote in response to the proposal. The federal government ultimately went even further than what the judges requested and introduced amendments to the Criminal Code that remove the right to a preliminary hearing unless a defendant is charged with a crime where the maximum sentence is life in prison (at press time, the legislation was still before the Senate). In addition to extra-judicial activities, speeches outside of court will also be part of the judicial council review and it is an area where judges have often faced criticism from outside organizations — fairly or unfairly. The most recent example was earlier this year when a speech by Glenn Joyal, chief justice of the Manitoba Court of Queen's Bench, was highlighted in media reports. (Joyal was also one of the Manitoba judges seeking the preliminary hearing changes.) The judge was the keynote speaker in 2017 at the annual "Law and Freedom" conference hosted by the Canadian Consti- tution Foundation. The right-of-centre advocacy group regular- ly seeks intervener status in Charter-related court proceedings. It has argued against expanding collective bargaining rights for public sector unions, in favour of Trinity Western University's bid for law school accreditation and against human rights codes that restrict disseminating anti-gay information. It has also received sizable donations from the foundation run by the fam- ily of the late mining magnate Peter Munk. Joyal, who is the senior member of the Canadian Judicial Council's judicial conduct committee, expressed support in his speech for a theory of "coordinate interpretation" of the Constitution, with an equal role for both the judiciary and legislatures. The "repatriation [sic] initiative" that resulted in the enact- ment of the Charter in 1982 was a "classic Canadian compro- mise," said Joyal. Since that time, he has suggested that judges have expanded the scope of the Charter far beyond what was intended and resulted in an imbalance between the judiciary and legislature. "This flight from politics and the accompany- ing rights-inspired public discourse often leaves the broader citizenry on the sidelines. They are sitting on the sidelines in a potentially disempowered state, not always able to understand, discuss, debate or grasp what are now the highly technical and legalistic formulations and tests which more often than not, form the basis of a final determination concerning a significant societal issue," Joyal stated. Other senior judges, including Federal Court of Appeal Justice David Stratas, have also been the keynote speaker at the foundation's events. Stratus, in a 2016 speech, lamented what he said is the lack of application of legal doctrine in judicial decision-making in Canada. If judges are too involved in the community, they may have to recuse themselves from certain cases. That could be a real issue in smaller communities."

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