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 A P R I L 2 0 1 9 31 He was very critical of the Supreme Court's decision in Carter v. Canada, which struck down the prohibition against physician-assisted dying. "The outcome of major constitutional cases will now very much depend on how a single judge at the bottom of the judicial heap happens to characterize constitutionally sig- nificant social science evidence. Is that sound doctrine?" asked Stratas. The Manitoba Bar Association issued a state- ment in support of Joyal after media reports quoted critics who suggested the judge might not uphold Charter rights for minority groups. "Such a suggestion is entirely improper and indeed false," said the association. While speaking to outside groups should be encouraged, MacKay notes that a judge may open themselves to criticism if the organization clearly has a political agenda. "Whether it is left wing or right wing, look carefully," he says. Soon after the Canadian Judicial Council publicly announced its review of the existing eth- ical principles for judges, CALE sent a letter with several suggestions, including a much broader consultation before any final decisions are made. Amy Salyzyn, president of the legal ethics organization, says the process should not be rushed. "It will take time to do it right. That speaks to public engagement about the new principles and hearing from a variety of stake- holders," adds Salyzyn, a professor in the faculty of law at the University of Ottawa. In the Berger proceeding, while no disciplin- ary action was imposed, he decided to resign from the bench months later. The prominent B.C. lawyer continues to practise at the age of 86. Two years ago, the provincial government retained him as part of the legal team fighting the expansion of the Trans-Mountain pipeline. The public record of his 1982 disciplinary hearing includes correspondence from Berger to Supreme Court Chief Justice Bora Laskin. The judge who filed the complaint suggested that the comments to the media were more serious than if he had "slept with a prostitute" or engaged in impaired driving, Berger noted. "My remarks were not directed to the Prime Minister or any one of the premiers, nor to any political party, but to our leaders collectively," wrote Berger. "I believe it is a mistake to place fences around a judge's conscience," he added. "To suggest that a judge has no right to speak out on these issues, at a moment of consti- tutional renewal unique in our history, is to reduce the great issues of Canadian history to arid protocol." Justice Donald McLeod Ontario Court of Justice A panel of the Ontario Judicial Council concluded last December that Justice Donald McLeod's involvement with the Federation of Black Canadians was "incompatible with judicial office." However, it did not rise to the level of undermining public confidence in his ability to perform the duties of his office, so a complaint against him was dismissed. McLeod co-founded the group in 2016, to try to find ways to stop the cycle of gun violence, after a young pregnant woman was fatally shot in Toronto. McLeod and members of the organization met on more than one occasion with federal politicians and Prime Minister Justin Trudeau. The judge sought advice from the ethics committee of the Ontario Court of Justice, which initially gave approval but later expressed concern that the organization was involved in lobbying on issues of importance to the Black community. It was never suggested that McLeod personally engaged in lobbying or partisan activity. He argued that he was bringing public attention to issues that impact a vulnerable and disadvantaged community. The panel, headed by Ontario Court of Appeal Justice Robert Sharpe, stated that while McLeod's goals were "laudable" the issue could not be decided based on good faith. "It is incompatible with the separation of powers for a judge to enter the fray and ask political actors for policy changes and the allocation of resources, however worthwhile the judge's motivating cause," it stated. "There are limits that govern judicial participation in civic and charitable activities and interaction with politicians and government officials," it explained. Justice Patrick Smith Ontario Superior Court A review panel of the Canadian Judicial Council found last fall that Justice Patrick Smith breached a section of the Judges Act that prohibits engaging in any outside occupation when he agreed to be the interim (academic) dean at the law school at Lakehead University in Thunder Bay. The panel referred the matter back to Robert Pidgeon, senior associate chief justice of the Quebec Superior Court. Pidgeon had earlier ruled that Smith's conduct could result in his removal from the bench. Ultimately, Pidgeon determined that expressing his concerns to Smith was the appropriate course of action. The council heard that the interim president of the university wrote to Smith in April 2018 and made an "urgent request" for him to consider being the interim dean. The request came after the previous dean resigned and made allegations of systemic racism at the faculty. Smith, who has supernumerary status, received approval from the chief justice of the Ontario Superior Court to take a six-month leave of absence from the court. He was not to receive any compensation from the faculty and his duties were to be limited to academic activities. An outside legal opinion was sought by the chief justice, which concluded this arrangement complied with the Judges Act. The chief justice also wrote to then-justice minister Jody Wilson-Raybould for approval. I have "no concerns" about a "special leave," said Wilson- Raybould in a written reply. A core mandate at the law school is Indigenous law. About 15 per cent of students at the school identify as Indigenous. Smith has significant experience as a judge in the region and was consulting with Senator Murray Sinclair on ways to ensure it fulfilled its mandate. Local media reports highlighted complaints about the appointment after it became public. Smith stepped down from the interim position after four months. The initial ruling of Pidgeon, referring the matter to the review panel, found that Smith engaged in misconduct by not considering the "public controversy" his interim appointment would generate.

• Cover