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Mark Sandler

Judge’s political lobbying, advocacy on behalf of black Canadians crossed line, but wasn’t ‘misconduct’

Friday, December 21, 2018 @ 4:11 PM | By Cristin Schmitz

The Ontario Judicial Council (OJC) has ruled that a judge who founded an advocacy group for black Canadians, and lobbied politicians with the “highly laudable” aim of helping his community overcome racism and poverty, engaged in a form of impermissible “advocacy and political activity” — but his actions did not amount to “judicial misconduct” that could merit his removal from the bench.

On Dec. 20, a four-person OJC panel chaired by Ontario Court of Appeal Justice Robert Sharpe issued its 42-page decision which concludes that Justice Donald McLeod, in his role as chair of the interim steering committee of the Federation of Black Canadians (FBC), engaged in a form of advocacy and political activity that is inconsistent with judicial office when he initiated meetings with senior government officials and politicians, including members of Parliament, cabinet ministers and elected municipal officials, during which he advocated for specific policy changes to help the black community and for government funding to achieve those aims.

The panel noted that the purpose of judicial conduct proceedings is remedial and not punitive. A judge can only be found guilty of judicial misconduct where his or her breach of the ethical standards of judicial conduct was so seriously contrary to judicial impartiality, integrity and independence that it undermined the public’s confidence in the judge’s ability to perform his duties, or in the administration of justice generally.

That test for misconduct was not met, the panel decided.

Although Justice McLeod’s conduct was incompatible with judicial office, when all the relevant circumstances are taken into account, his conduct has not undermined public confidence in his capacity to carry out his judicial functions or in the administration of justice generally, said the panel, whose members also included Justice Hugh Fraser of the Ontario Court of Justice, David Porter of McCarthy Tétrault, and Judith LaRocque, a member of the public.

The panel’s decision is the second in as many months from a judicial council to find that a respected judge who engages in well-meaning extra-judicial activity to aid disadvantaged members of society may be found to be in breach of the ethical guidelines for judges.

Its decision also highlights the emerging issue of whether those long-established ethical rules should be modified to accord with the modern-day role of judges.

Mark Sandler

Mark Sandler, Cooper, Sandler

Mark Sandler, who represented the judge along with Amanda Ross of Toronto’s Cooper, Sandler, told The Lawyer’s Daily “it is fitting that the judicial council clearly recognized that this was not a case of misconduct — indeed that Justice McLeod, as a role model in the black community, has an important continuing role to play in educating the public as to the challenges facing the vulnerable and marginalized, particularly black young men and women.”

Sandler said that “although the council disagreed with Justice McLeod as to precisely where the line between permissible and impermissible activity should be drawn, the council confirmed [in its reasons] that ‘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.’ It was crucially important to Justice McLeod, current and future judges, racialized communities, and ultimately the administration of justice, that this principle be vindicated.”

Justice McLeod did not respond to a request for comment.

But in his submissions to the OJC on the judge’s behalf, Sandler urged that the justice system “is not so fragile a flower that it would wilt” as a result of the activities Justice McLeod engaged in.

Sandler noted that although the reasons give considerable latitude to judges working in their communities, he would personally welcome a broader conversation involving the community, the judiciary and academics on whether we need to reconsider, and revamp, judicial ethical principles in light of cases such as Justice Patrick Smith and Justice McLeod “which should never have been addressed in the context of misconduct allegations.”

(In a decision last month that is under judicial review, the federal Canadian Judicial Council said Justice Smith was not deserving of removal, but that he nevertheless breached the ethical bounds of the judiciary by exposing himself to public controversy when he agreed (with his chief justice’s and the justice minister’s approval) to temporarily act pro bono as law dean of Lakehead University’s struggling law school which has a focus on Indigenous studies and training Indigenous lawyers.)

Frank Addario

Frank Addario

Toronto litigator Frank Addario, who provided one of many character references attesting to the esteem in which Justice McLeod is held in the legal community, told The Lawyer’s Daily he believes public confidence in the administration of justice is generally enhanced by judges continuing to stay engaged in the community and being actively involved in other forms of public service. Moreover, he suggested if the judiciary is going to be diverse, society may have to accept that there is no single portrait of judicial “neutrality.”

“I think reasonable people can disagree about whether and when judges can speak,” Addario told The Lawyer’s Daily. “The panel’s view is reasonable. I just disagree.”

“In my view Justice McLeod has a lot more to offer government about how the justice system should respond to racism than I do,” he explained.

“If we are really committing to diversity on the bench we should fully embrace its benefit,” he added. “Secondly we need to be sure we don’t draw distinctions that meant something 30 years ago but might not fit any longer. Fifty years ago, judges participated in church groups that ran soup kitchens and asked for civic donations. Ten years ago, the government got proactive about mental health so now it’s OK for judges to sit at that table. But since government is slow connecting the dots on how gun violence, poverty, unemployment and racism affects black youth, it’s not okay [for a judge] to get up and offer solutions there,” he remarked. “This is a distinction which, to my mind, is not worth maintaining.”

In deciding that Justice McLeod’s impermissible lobbying and advocacy did not rise to judicial misconduct, the OJC’s panel noted these activities were not prolonged and they were conducted in a measured and respectful manner.

Notably, the panel found “there is no question of his ability to judge with integrity in an impartial and independent manner.”

Moreover, Justice McLeod, who sits in Brampton, Ont., is highly regarded as a judge and serves as a role model for young black males, the panel remarked.

He grew up in a female-led, single-parent household, and lived in social housing, including in Toronto’s Regent Park. His life experiences make him “uniquely aware of the problem of black over-representation in the criminal justice system,” the panel remarked.

The panel said the judge was genuinely motivated to promote public confidence in the justice system. He acted in good faith, sought ethical advice and attempted to respect the limits that his judicial role imposed.

The panel concluded that a finding of judicial misconduct is not required to restore public confidence in Justice McLeod, or in the administration of justice generally.

However, the panel also admonished that its decision clarifies the issue of advocacy and political activity by judges, and defines a boundary that all judges must respect in the future, however laudable their motives.

In particular, while community activity is encouraged, judges must conduct themselves in a manner consistent with the principles of judicial impartiality, integrity and independence, the panel warned.

Justice McLeod helped found the FBC and was one of its leading voices, the panel’s decision said. The FBC has the “laudable goal” of promoting greater equality and inclusion for persons of African descent in Canada and, as such, its activities included identifying issues confronting black Canadians and meeting with politicians and government officials with a view to addressing the issues, and improving the circumstances, of African Canadians.

After graduating law from Queen’s University, and practising criminal and administrative law for 15 years, he was appointed to the bench. During his legal career he was always involved in community organizations and initiatives, in particular those that promoted the education and mentorship of black youth. He told the panel he considered it his duty to help others overcome the obstacles of poverty and racism that he faced, so that they can lead positive and productive lives.

In 2016, not quite three years after he became a judge, a young, pregnant black woman was shot and killed, and her baby who was delivered prematurely, died three weeks later. Justice McLeod, who knew the woman’s aunt, was “profoundly affected by the tragedy,” the panel said. He decided something had to be done to stop the cycle of gun violence involving black youth and to address its roots. He organized a meeting of 37 people — the “Toronto 37” — who had backgrounds in mental health, corrections, education and criminal justice. They subsequently identified 13 specific areas of concern for the black community and tasked 15 volunteers to prepare a “white paper” examining the issues facing the black community in the areas of mental education, mental health and corrections.

The judge then initiated meetings between June and September 2016 by the Toronto 37 with politicians from various parties, government officers and political staffers to discuss the issues, including federal Public Safety Minister Ralph Goodale. The national FBC was founded after the meetings to create an effective national voice. The interim steering committee, until a board was in place, was chaired by Justice McLeod, who said he would not run for the board once it was established.

There were meetings chaired by the judge, with Gerald Butts, the prime minister’s principal secretary; with Ahmed Hussen, the minister of Citizenship and Immigration; and with Prime Minister Justin Trudeau in the company of experts, federal MPs and black community leaders.

Along the way Ontario Court of Justice Associate Chief Justice Faith Finnestad, who eventually referred the matter to the OJC last February, expressed concerns to the judge that his activities were not consistent with his judicial role. There were also media articles describing him both as a sitting judge and leader of the FBC, and quoting him in the latter capacity. One article raised questions about ethics and conflicts of interest and suggested that the FBC, which describes itself as non-partisan, was a “thinly-veiled front for partisan Liberals.” A CBC article questioned whether it was appropriate for the judge to lead the FBC while presiding as a judge.

The judge sought ethical guidance from the court’s judicial ethics committee. After OJC proceedings began, the judge resigned as chair of the FBC’s interim steering committee.

Linda Rothstein of Toronto’s Paliare, Roland, who was the counsel who presented the case against Justice McLeod at the OJC, said the evidence did not support allegations against the judge of partisan political activity and fundraising.

However, she contended that his actions, through the FBC, of engaging directly with politicians to advocate for identified policy outcomes and the allocation of government resources to meet those outcomes, cross the line into impermissible judicial conduct.

The judge’s position was that he engaged in important community activity, bringing to public attention issues that affect a vulnerable and disadvantaged community. He said that nothing he did undermined public confidence in the administration of justice or impaired his capacity to carry out his judicial functions with independence and impartiality.
The panel observed that it was “entirely satisfied” that the judge was “at all times motivated by a highly laudable goal. He has a profound desire to help the members of the black community to overcome the historic barriers of racism and poverty. … He did not seek personal fortune or fame. He genuinely sought to fulfil what he sees as his personal duty to help his community.”

However, it said the issue could not be decided based solely on the judge’s intentions or good faith — his actions had to be considered against the objective standard of conduct expected of judges.

“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,” the panel noted. “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.”

However, the panel did not accept the judge’s position that his impugned activities could be fairly characterized as being merely educative or intended to inform politicians of the difficulties facing black Canadians. We “are satisfied that the line between education and advocacy was crossed,” the panel said. “The PowerPoint presentation the FBC delivered to the Prime Minister and other politicians at the June 28, 2017 meeting included ‘asks’ for policy change and resource allocation in each of the areas of mental health, corrections and education. For example, under the heading Mental Health, the FBC asked for the government to take the following actions: the creation and funding of a National Multidisciplinary Agency; a transitional housing program; policy changes and funding for research into issues confronting Black Canadians; and new legislation to promote race relations and services; and sustained investment in innovation, evidence and capacity building.”

Nor did the panel accept the judge’s argument that he was not engaged in “lobbying” as there was no “quid pro quo” exercise whereby the FBC was promising something in exchange for what it was asking. “In our view, no ‘quid pro quo’ is required to constitute lobbying,” the panel said, citing multiple authorities.

The panel stressed that judicial independence requires that judges occupy “a place apart.”

“Judges must stand above the political fray, free from the pushes and pulls of public opinion,” the panel explained. “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. A perception could arise that the judge’s rulings will be influenced by whether the government accepts or rejects the policy changes that the judge has advocated for, or that the government will try to influence the judge by accepting or rejecting such changes,” the panel wrote. “These principles are not just vague abstractions. They are, as described by Chief Justice Brian Dickson, ‘the lifeblood of constitutionalism in democratic societies.’ … Their maintenance depends not only upon the need for the government to avoid actions that impair judicial independence but also upon the need for judges to conduct themselves at all times in a manner that respects the very independence that defines their unique role.”

The panel concluded that “engagement that a judge initiates outside the courtroom, with politicians to achieve policy changes not directly tied to the administration of justice amounts to political activity that violates the principle of separation of powers, threatens judicial independence and is inconsistent with the standard expected of a judge of the Ontario Court of Justice.

We accept that the FBC’s goal of improving the integration of Black Canadians into Canadian society was praiseworthy and that the issues FBC and Justice McLeod raised were well-documented. … However, as the Federal Court of Appeal stated in a different context, initiating contact with government officials to advocate policy changes is no less political ‘because the cause that is the object of the initiative is popular, or has unanimous support or is endorsed by the existing authorities.’ … As Professor Peter Russell warned in “Judicial Free Speech: Justifiable Limits” (1996) 45 U.N.B.L.J. 155, at pp. 157-8, judges would lose credibility as independent adjudicators if they “were free off the bench to push for or against changes in public policy.”