By Neil Armstrong
 |
| Photo credit: Clive Sewell Justice Donald McLeod speaking at the National Black Canadians Summit in December 2017 at the Toronto Reference Library |
A lawyer representing an Ontario judge at a public
disciplinary hearing of the Ontario Judicial Council says the judge is a
wonderful role model of how judges can contribute to their community.
On December 4, the second day of the proceeding, he
cautioned that the hearing could cause a chill so that people do not seek
opportunities in the judicial system.
Mark Sandler told the four-person panel hearing a complaint
about the conduct of Justice Donald McLeod that it has to determine where is
the boundary drawn in relation to judges and community activities, and whether
it is satisfied that the work that the judge did with the Federation of Black
Canadians constituted judicial misconduct.
Linda Rothstein, lawyer representing the judicial council, argued
that when a judge has direct engagement meeting with politicians, elected
officials and parliamentarians in which there are direct requests made for
policy shifts and resource allocation shifts, that this is tantamount to
lobbying and that it is a line that judges, in general, should not cross.
A summary of the complaint notes
that “while presiding full-time as a judge of the Ontario Court of Justice, His
Honour founded, led and served as Chair of the Steering Committee for the
organization called the Federation of Black Canadians (“FBC”), a national,
non-profit organization that meets with government representatives to advocate
for legal and social reform on behalf of Black Canadians.”
It says Justice McLeod “failed
to uphold the integrity, impartiality and independence of the judiciary when he
communicated with and met with politicians on behalf of FBC, inappropriately
used the power and prestige of his judicial office to advance the interests of
the FBC and lent the prestige of the judicial office to FBC fundraising.”
The complaint was laid by Associate Chief Justice Faith
Finnestad of the Ontario Court of Justice.
Sandler said there is no evidence that either Justice McLeod
or the Federation of Black Canadians engaged in partisan political activities,
and that the judge did not engage in fundraising for the organization or seek
government funding.
Rothstein said the Judicial Council encourages community
involvement that is not incompatible with the judicial office.
Citing the Canadian Judicial Council’s ethical principles
for judges, which are advisory in nature, Rothstein said the principle of
impartiality notes that all partisan activity must cease upon appointment.
She said the independence of the judiciary is a
constitutional principle and that there is a separation between the judiciary
and the executive and legislative branches of government.
“When you go to the
government you create some sort of indebtedness to the government.”
She said what crossed the boundary was lobbying government
for resources, allocation or policy change, and that judges should not advocate
to governments for particular outcomes.
Rothstein said that in June 2017 Justice McLeod chaired a meeting
with the prime minister and federal ministers about issues related to mental
health, corrections, education and other matters.
She said the presentation had a series of asks for policy
changes that the Federation of Black Canadians was seeking from government.
Sandler said Justice McLeod did not cross the line. He said
it was difficult to square a decision in the case and that on November 30, the
first day of the hearing, an expert told the panel that considering this a case
of judicial misconduct could prevent racialized judges from “paying it forward”
to the community.
The lawyer gave 18 reasons to substantiate his argument,
including that Justice McLeod’s involvement was motivated by the public
interest, not personal interest.
He said Justice McLeod wanted to educate the politicians
about the challenges facing the Black community.
Sandler said there was no quid pro quo requested or offered
by government and that the challenges identified that are facing the Black
community are uncontentious, a number of them are the subject of judicial
interest.
The lawyer noted that the judge was never required to
disqualify himself from any case and that his activities did not affect his
impartiality.
He said Justice McLeod engaged crown attorneys, defense
counsels, mental health practitioners and police in looking at the problem of
the administration of justice.
Sandler noted that Justice McLeod’s tone in dealing with
government was respectful, informative and non-combative, and that he was
largely, not exclusively, a facilitator in the dialogue that was taking place
with the government.
He also said the judge contacted the ethics advisory committee
on three separate occasions because he wanted its members to have the full
picture and he disclosed that they had met with the prime minister.
Sandler said there has to be room for judges to participate
in non-partisan public interest activity.
He referenced the late Supreme Court judge John Sopinka
declaring years ago that judges need not be monks and live in an ivory tower.
The lawyer said the panel has to determine where the line is drawn.
Sandler said Justice McLeod’s action is not deserving of a
characterization of misconduct.
He said Justice McLeod was not engaged in political activity
or any activity that affected his impartiality and independence.
He underscored that this is not a misconduct case and could
undermine confidence in the administration of justice and discourage
individuals like Justice McLeod to seek judicial office.
Sandler invited the panel to read the letters of support for
McLeod.
The hearing panel includes Ontario Court of Appeal Justice
Robert Sharpe, Justice Hugh Fraser of the Ontario Court of Justice, lawyer
David Porter, and community member Judith LaRocque.
It has reserved its decision
until a date in January 2019 and may dismiss the complaint, with or without a
finding that it is unfounded, or, if it upholds the complaint, it may decide
upon sanctions.
On November 30, it was
determined that Justice McLeod would not need to answer to allegations that he
engaged in partisan political activity or improper fundraising as Rothstein
said the allegations did not have merit.
Complaint Against Ontario Court Judge Dismissed
By Neil
Armstrong
A complaint
laid against a black Ontario Court judge who is of Jamaican heritage has been
dismissed.
In a 43-page
decision released on December 20, the four-member Ontario Judicial Council hearing
panel concluded that Justice Donald McLeod’s “conduct was incompatible with
judicial office, but that it was not so seriously contrary to the impartiality,
integrity and independence of the judiciary that it rose to the level of
undermining the public’s confidence in his ability to perform the duties of
office or the public’s confidence in the judiciary generally.”
The hearing
held on November 30 and December 4 concerned the conduct of Justice McLeod, a
member of the Ontario Court of Justice, in his capacity as Chair of the interim
Steering Committee of the Federation of Black Canadians (FBC).
“Justice
McLeod helped found the FBC and was one of its leading voices. The FBC has the
laudable goal of promoting greater equality and inclusion for persons of
African descent in Canada. Its activities included the identification of issues
confronting Black Canadians and meeting with politicians and government
officials with a view to addressing those issues and improving the circumstances
of African-Canadians,” notes the panel.
On June 28,
2017, he chaired a meeting with Prime Minister Justin Trudeau, experts, Black
community leaders, and federal MPs. The purpose of the meeting was to discuss
the mental health, corrections and education challenges Black people face in
Canada.
The
complaint to the Judicial Council was laid by Associate Chief Justice Faith M. Finnestad.
In a meeting
on September 21, 2017, Finnestad advised Justice McLeod that she was of the
view that it was inappropriate for him to be meeting with political figures in
his capacity of Chair of the FBC interim Steering Committee.
“She asked
him to cease having such meetings. Justice McLeod responded that, in his view,
these meetings were consistent with his obligations as a judge. Finnestad ACJ
suggested that he seek advice from the Judicial Ethics Committee of the Ontario
Court of Justice (the “Ethics Committee”).”
In its
analysis, the panel said that it was “entirely satisfied that Justice McLeod
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 was motivated by a belief that if people of good faith
pull together, issues can be identified and changes can be achieved that will
remove racial barriers and enhance the quality of life for
Black Canadians. He did not seek personal fortune or fame. He genuinely sought
to fulfill what he sees as his personal duty to help his community.”
It said
despite its finding that Justice McLeod’s conduct was incompatible with
judicial office, “there is a long list of features to this case that leads us
to conclude that this threshold of undermining public confidence in his ability
to perform the duties of office or in the judiciary generally has not been
crossed.”
Justice
McLeod was born in London, England. His parents immigrated to England from
Jamaica, and subsequently migrated to Canada in 1970.
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