Acting as both a judge and advocate for the black community did not damage confidence in the justice system, argued counsel for Justice Donald McLeod in a two-day Ontario Judicial Council hearing that concluded Tuesday.
At the hearing, which began last Friday, McLeod’s counsel argued that his client’s dual role as a judge and advocate for his community does not sacrifice the judge’s neutrality and independence but enhances confidence in it by allowing him to serve as a role model to black youth and bringing forward issues that McLeod’s community faces.
“Indeed, I will respectfully submit to you that these proceedings and a potential finding of misconduct against Justice McLeod can potentially undermine and diminish rather than enhance public confidence in the administration of justice,” said Mark Sandler of Cooper Sandler Shime and Bergman LLP.
McLeod is answering to the complaint, filed by Associate Chief Justice of the Ontario Court of Justice Faith Finnestad, that as a presiding judge, his involvement with the Federation of Black Canadians, and specifically, his meeting with politicians on behalf of the organization, compromised the integrity, impartiality and independence of the judiciary. The complaint says McLeod inappropriately used the power and prestige of judicial office to advance the interests of the FBC and lent his prestige to FBC fundraising.
The threshold for judicial misconduct is high, Linda Rothstein told the panel, and a finding of misconduct is “remedial,” to be undertaken when the judge’s activity is so detrimental to the public’s confidence in the administration of justice that to restore that confidence, that judge must be sanctioned.
As presenting counsel for the OJC, Rothstein said she was not there as an advocate on either side of the complaint against McLeod but to present the standards, rules and relevant jurisprudence for the panel to make its decision.
Sandler began his submissions Friday by telling the panel there was no clear line when it came to appropriate conduct for a judge’s community involvement.
“Reasonable people, including judges, disagree, sometimes forcefully about what is or is not permissible,” Sandler said.
Sandler said McLeod’s conduct must be evaluated in the context of his community and the needs and circumstances of that community.
McLeod began his testimony by telling his life story. He immigrated to Canada with his family in 1970 and lived in Regent Park and Scarborough, Ont. in subsidized housing. He attended McMaster University, Queen’s Law School and was called to the bar in 1998. After practising criminal and administrative law for 15 years, he was appointed to the bench in 2013 in Brampton, Ont.
In May 2016, Candice Bobb, a young black and pregnant woman, was shot and killed, her baby dying three weeks later. This led McLeod and others to organize a meeting to discuss problems in the black community, including gun violence, mental health, poverty, education and the criminal justice system.
During his questioning, McLeod said that it wasn’t until the complaint was filed that people thought he was being partisan.
“I am just trying to make sure that we, with all our voices in this community, make sure that this community doesn’t keep dying,” he said.
During his questioning, McLeod said that, from the beginning, he knew that he would not “comment on things that were judicial in nature” on how “the law should be done and how judges should judge, how decisions should be made,” he said.
Between June and September of 2016, McLeod met with politicians including federal Liberal MPs Marco Mendicino, federal Minister of Immigration, Refugees and Citizenship Ahmed Hussen and Minister of Public Safety Ralph Goodale.
Eventually, these initiatives culminated in the formation of the Federation of Black Canadians. An interim steering committee was established and McLeod became chairman. In the spring and summer of 2017, he chaired meetings where federal politicians, including Prime Minister Justin Trudeau, were present.
In September of that year, McLeod met with Finnestad at her request. She told him it was inappropriate for him to meet with political figures. McLeod responded that his function in the FBC was consistent with his judicial obligations. He then sought the advice of the Judicial Ethics Committee of the Ontario Court of Justice, corresponding via email with Justice Peter Tetley.
Included in the activities McLeod told Tetley the FBC would engage in, he said they would “interface” with government, which “can be seen as lobbying (perhaps not traditional).” He asked if there was any issue with him being affiliated with the group, Tetley replied that the ethics committee had no ethical concerns provided the FBC was not a lobby group but a “conduit of important information relating to issues of significance to a defined group of Canadians.”
Rothstein questioned McLeod about whether the FBC’s engagement with the government was that of educator or whether they were, in effect, pressing the government for policy changes and resources put toward issues affecting the black community, which could appear to be lobbying.
“To some extent, and it’s all a question of degree, the work of the federation had gone beyond purely educating government because there was some ‘ask’ involved. Is that fair?” she said.
McLeod responded that it was not, that the “ask” was not the same as in a “traditional” lobbying sense. He said when someone knows something they didn’t know before and feel compelled to act, that is not the same as when a group makes a request that will come with a promise of support from that group and threat of withholding support if the request is denied.
During Rothstein’s submissions on Tuesday, she described the “asks” the group put to the government, which included funding for housing, a mental health strategy, legislation for anti-racism training for provinces, corrections programs and putting education surplus funds toward community programs.
“The fact that it is absolutely undisputed that there was not a quid pro quo sought by FBC should not be determinative of whether or not the conduct is problematic for judges,” Rothstein said.
Some media articles in 2017 and 2018 about McLeod’s involvement with the FBC were critical of its effect on his judicial role. McLeod went back to the ethics committee and, in March of 2018, said his role would be ending within eight or nine months. Tetley advised he resign then, based on the fact McLeod’s role was now under public scrutiny.
After the complaint was lodged, the registrar of the Ontario Judicial Council told McLeod the complaint subcommittee may recommend his suspension with pay until the complaint was dealt with. McLeod then responded that he had resigned from the steering committee of the FBC and would cease all further activities with it.
In Sandler’s submissions to the panel, he stated that the issues facing the black community that McLeod’s organization were bringing to government were uncontentious, had been articulated in government reports and judicial decisions and were the subject of judicial notice. Sandler added that McLeod’s activities never caused a recusal motion and he never had to disqualify himself from hearing any case.
The panel heard from both presenters that when it came to public, political activity from judges, there was a special exception made for advocating on behalf of the administration of justice, which includes calling for more resources or judicial independence. As political statements are unacceptable because they sacrifice judicial independence, this “carve out” of politically contentious expressions is allowed for the sake of judicial independence. Sandler argued that, because the FBC was organized around issues that have a demonstrable effect on the courts, the purpose of the FBC was not separate from the administration of justice.
“Let’s not draw that ‘carve out’ so narrowly as to ignore the fact that what he was mobilizing people to educate and speak about were the very challenges being identified in his courtroom,” Sandler said.
Court of Appeal Justice Robert Sharpe, chairman of the panel, asked Rothstein for clarification on if a judge’s activity did not appear to bias him toward anyone who would appear in the court, impartiality would be preserved.
Rothstein replied that the appearance of institutional impartiality and the independence of the judiciary from other branches of government is also important.
“One can’t read the full body jurisprudence and principles to support the position that independence is completely subservient to how it plays out in the individual judge’s court room,” she said.
Sharpe said the panel would not deliver its decision immediately and that, if there was another hearing needed, Ontario Judicial Council Registrar Marilyn King said it would take place on Jan. 22, 2019.