The Honourable Justice Benoît Moore’s Questionnaire
Under the new judicial appointment process announced by the Minister of Justice on October 20, 2016, any interested and qualified Canadian lawyer or judge may apply for such appointment by completing a questionnaire. The questionnaires are then used by the Judicial Advisory Committees across Canada to review candidates and submit a list of “highly recommended” and “recommended” candidates for consideration by the Minister of Justice. Candidates are advised that parts of their questionnaire could be made available to the public, should they be appointed to the bench.
Below are Parts 5, 6, 7, and 11 of the questionnaire completed by the Honourable Benoît Moore.
Questionnaire for Judicial Appointment
PART 5 – LANGUAGE
Please note that in addition to the answers to the questions set out below you may be assessed as to your level of language proficiency.
Without further training, are you able to read and understand court materials in:
- English: Yes
- French: Yes
Without further training, are you able to discuss legal matters with your colleagues in:
- English: Yes
- French: Yes
Without further training, are you able to converse with counsel in court in:
- English: Yes
- French: Yes
Without further training, are you able to understand oral submissions in court in:
- English: Yes
- French: Yes
PART 6 – EDUCATION
Name of Institutions, Years Attended, Degree/Diploma and Year Obtained:
D.E.A. in private law – Université Paris I – Panthéon Sorbonne (1994-1995). Master’s level degree obtained in 1995.
LL.M. – Université de Montréal under the co-supervision of the Honourable Jean-Louis Baudouin and Professor Christianne Dubreuil (1993-1995). Degree obtained in 1995.
LL.B. – Université de Montréal (1989-1992). Degree obtained in 1992.
D.E.C. – Collège Jean-de-Brébeuf (1987-1989). Diploma of college studies obtained in 1989.
D.E.S. – Collège Jean-de-Brébeuf (1982-1987). Secondary school diploma obtained in 1987.
In the past fifteen years, I have participated in over 60 symposia, professional training courses or conferences as a trainer or speaker. Over this same period of time, I have also attended over 200 conferences, symposia and other scientific and professional events.
Honours and Awards:
Elected to the International Academy of Comparative Law (2010).
Medal awarded by the Association internationale Henri-Capitant (2004).
André-Morel professorial excellence prize awarded by the students of the Faculty of Law of Université de Montréal (2002 and 2004).
D.E.A. (master’s level degree) with honours in private law from Université Paris I – Panthéon Sorbonne (1995).
Recipient of an award from Revue juridique Thémis for an article entitled “À la recherche d’une règle générale régissant les clauses abusives en droit québécois”, (1994) 28 R.J.T. 177-237 (1994).
Recipient of an FCAR fellowship while completing my D.E.A. (1994).
Alma Mater award of excellence awarded to a master’s or doctoral student (ex aequo) (1993).
Recipient of an FCAR fellowship while completing my master’s degree (1992).
Included on the LL.B. list of excellence. This list includes students ranked among the top five percent of their cohort (1992).
First recipient of the award for student contribution to faculty development (1992).
PART 7 – PROFESSIONAL AND EMPLOYMENT HISTORY
Please include a chronology of work experience, starting with the most recent and showing employers’ names and dates of employment. For legal work, indicate areas of work or specialization with years and, if applicable, indicate if they have changed.
Legal Work Experience:
Professor of private law, Faculty of Law, Université de Montréal (since February 2000). Inaugural holder of the Jean-Louis Baudouin Chair in Civil Law (since March 2006).
Lecturer in the Faculty of Law at Université de Montréal (1996-2000).
Articling student and later associate with the law firm of Martineau Walker (now Fasken Martineau) in the civil litigation sector (1993-1994 and 1995-1996).
Non-Legal Work Experience:
Associate Vice-Rector, Development and Alumni Relations, Université de Montréal (2016- ).
Interim Dean, Faculty of Law, Université de Montréal (Sep. 2014-June 2015).
Associate Dean, Faculty Life and External Affairs, Faculty of Law, Université de Montréal (2012-2014).
Other Professional Experience:
List all bar associations, legal or judicial-related committees of which you are or have been a member, and give the titles and dates of any offices which you have held in such groups.
Member of the Equivalences Committee of the Barreau du Québec (2016- ).
Member of the Mandatory Continuing Education Committee, Barreau du Québec (2012- ).
Member of the Advisory Committee, Les Éditions Yvon Blais (2016- ).
Assistant Director (2003- ) and member of the Board of Directors (2002- ) of Les Éditions Thémis.
Member of several university and faculty committees, most notably: Alternate Chair of the committee responsible for the review of disciplinary decisions concerning students at Université de Montréal (2005-2012); Member of the committee responsible for professorial bonuses (2016- ); Member of the Council of the Faculty of Law, Université de Montréal (2012-2015); Chair of the LL.B. program evaluation committee, Faculty of Law, Université de Montréal (2009-2011); Member of the faculty promotion and appointments committee, Université de Montréal (2008-2012); Member of the university assembly, Université de Montréal (2004-2008).
Pro Bono Activities:
Member of the International Scientific Committee of the Fondation pour le droit continental (2016- ).
Member of the preselection committee for the “Leaders of Tomorrow” competition organized by the Young Bar Association of Montreal (2015).
President of the Quebec chapter of Association Henri Capitant (2014- ).
Member of the selection committee for the “Leaders of Tomorrow” competition organized by the Young Bar Association of Montreal (2014).
Member of the readership circle of Revue de Droit Henri Capitant (2009- ).
Member of the editorial committee of Revue Studia Universitatis Bebes-Bolyai Jurisprudentiae, Romania (2009- ).
Secretary-General of the Quebec chapter of Association Henri-Capitant (2003-2014).
Teaching and Continuing Education:
List all legal or judicial educational organizations and activities you have been involved with (e.g. teaching course at a Law Faculty, bar association, National Judicial Institute, Canadian Institute for the Administration of Justice, etc.)
Professor in the Faculty of Law, Université de Montréal. Courses taught: Advanced Civil Law: Special Topics in the Comparative Law of Obligations (Drt-6800); Introduction to Law (Drt-1001); Law of Obligations 1 – Contracts (Drt-1221); Law of Obligations 2 – Civil Liability (Drt-1222); Law of Obligations 3 – Terms, Conditions, and Extinguishment (Drt-1223); Family Law and Law of Natural Persons (Drt-1224); Foundations of Private Law (Drt-6818). History of Law. Legal Methodology.
Guest lecturer invited to 8 foreign universities: Paris II – Panthéon-Assas; Paris XIII; Bordeaux IV; Montpellier; Lyon III; Liège; Tunis; Keio (Tokyo, Japan). Courses taught: Comparative Contract Law; Theory of Comparative Law; Mixed Systems of Law; Introduction to Quebec and Canadian Law (methods, history, political and legal institutions, Canadian bijuralism); Comparative Family Law; Comparative Law of Persons; Comparative Civil Liability.
Conferences and continuing education (bar associations, Judicial Institute, universities, scholarly societies...):
“Contexte et enjeux d’une réforme du droit de la filiation par procréation assistée”, in the context of a symposium on the theme “Regards croisés sur le droit familial québécois et belge”, Université Libre de Bruxelles, Belgium, April 21, 2016.
“L’uniformisation du régime des couples de droit et des couples de fait. Perspectives québécoises”, as a guest speaker at Université de Liège, Belgium, April 20, 2016.
“Le juge et l’intangibilité du contrat en droit québécois”, as a guest speaker at Université de Liège, Belgium, April 19, 2016.
“Vigilance et contrat”, in the context of a symposium on the theme “Vers la consécration d’un devoir de vigilance : mythe ou réalité” organized by the L.R. Wilson Chair, Montréal, March 24, 2016.
“Le rapport du Comité consultatif sur le droit de la famille : la consécration de l’autonomie individuelle”, in the context of a symposium on the theme “Vers un nouveau droit de la famille” organized by the Familles en mouvance de l’INRS partnership, Montréal, November 9, 2015.
“Fonctions et limites du droit des obligations dans l’œuvre du juge Louis LeBel”, in the context of a symposium on the theme “Hommage au juge Louis LeBel” organized by the Quebec Division of the Canadian Bar Association, Montréal, October 29, 2015.
“Les troubles de voisinage 7 ans après Ciment du St-Laurent”, in the context of a symposium on civil liability organized by les Éditions Yvon Blais, Montréal, October 2, 2015 and Québec, December 3, 2015.
Summary report on the France-Quebec bilateral day on the project concerning the reform of contract law in France organized by Association Henri-Capitant, Montréal, September 25, 2015.
“La maternité de substitution : la destinée agitée d’une parenté contractualisée”, in the context of a symposium on the theme “La destinée en droit civil” by the Jean-Louis Baudouin Chair, Montreal, May 1, 2015.
“La naissance : Procréation assistée en droit québécois”, Chungang –University Fondation pour le droit continental, Seoul, December 3, 2014.
“La naissance : Science et filiation”, Keio University – Fondation pour le droit continental, November 29, and December 1, 2014.
Summary report – “Un regard d’Outre-Atlantique”, in the context of the Franco-German days organized by Association Henri Capitant, Munster, Germany, October 24 and 25 2014.
Roundtable on surrogate motherhood, organized by the Notarial Chair and the Jean-Louis Baudouin Chair, Université de Montréal, October 3, 2014.
Final report of the symposium on the theme “Les oubliés du Code civil” organized by the Jean-Louis Baudouin chair, Université de Montréal, May 1, 2014.
“Les principes directeurs du droit des contrats”, in the context of a symposium on the theme “Le nouveau Code civil roumain : Vu de l’intérieur – Vu de l’extérieur”, Bucharest, Romania, October 23, 2013.
“Le droit civil au Québec”, in the context of the IDEF conference, Montréal, May 16, 2013.
“L’affaire Éric c. Lola : l’heure du bilan – Passé et avenir de l’union de fait : entre liberté et solidarité”, in the context of a symposium organized by Juristes de l’État, Québec, April 9, 2013.
“Unions de fait et unions de droit : entre liberté et solidarité”, in the context of the symposium on the theme “Le couple” jointly organized by the Notarial Chair and the Jean-Louis Baudouin Chair, Montréal, April 4, 2013.
“Actualités en matière de troubles de voisinage”, in the context of the symposium on the theme “Questions choisies en droit des biens”, Montréal, January 31, 2013.
“Flexible contrat : Réflexion sur la détermination unilatérale de l’obligation”, in the context of Journées exceptionnelles Jean-Louis Baudouin, Montréal, March 23, 2012.
“L’union de fait au Québec : Quelle place pour la solidarité familiale ?”, in the context of the symposium on the theme Droit patrimonial de la famille, Montréal, January 18, 2012.
“L’union de fait : enjeux de l’encadrement juridique en droit privé dans le contexte de rupture”, Brussels, December 16, 2011.
“Les dommages punitifs en droit québécois”, Université Lyon III, December 14, 2011.
“La formation du juriste”, presented with Professor Nathalie Vézina in the context of Journées de l’Association Henri Capitant, Vietnam, June 15 2011.
“Les troubles de voisinage depuis l’arrêt Ciment du St-Laurent”, presented in the context of the annual conference of the Young Bar Association of Montréal, May 21, 2011.
“Les troubles de voisinage en droit québécois”, presented in the context of the Franco-Belgian days organized by Association Henri Capitant, Liège, Belgium, November 19, 2010.
“L’union de fait en droit québécois”, presented in the context of the Franco-Belgian days organized by Association Henri Capitant, Liège, Belgium, November 18 2010.
“Familles plurielles”, presented in the context of the trilateral days focused on Belgium, France and Québec organized by Association Henri Capitant, Barcelona, Spain, October 29, 2010.
“Les troubles de voisinage : une responsabilité dans faute”, jointly presented with François Fontaine at the annual conference of the Barreau du Québec, La Malbaie, June 4, 2010.
Summary report for the conference cycle on “Le droit civil et ses codes – Parcours à travers l’Amérique”, presented at the Faculty of Law, McGill University, May 19, 2010.
“Mise à jour en obligations… à la saveur fiscale”, presented with Professor Diane Bruneau in the context of professional training organized by the Ministry of Revenue, Montreal, April 20, 2010.
“Regards sur la famille homosexuelle : la reconnaissance de l’homoparenté en droit québécois”, presented in the context of a symposium organized by the Notarial Chair, Université de Montréal, April 16, 2010.
“Développements récents en droit des obligations”, professional training organized by the Barreau du Québec, Montréal, March 12, 2010.
“La responsabilité sans faute depuis L’arrêt Ciment St-Laurent”, presented in the context of the conference organized by the Association des avocats de Province, Laval, October 16, 2009.
“Famille homosexuelle: la reconnaissance de l’homoparenté en droit québécois”, presented at Université Libre de Bruxelles, May 14, 2009.
“L’interprétation des contrats en droit québécois: entre objectivisme et subjectivisme”, presented in the context of a symposium organized by the National Judicial Institute, St. John’s, Newfoundland, May 6, 2009.
“La transposition de la doctrine française au Québec : illustration par la controverse sur le domaine de la responsabilité contractuelle”, presented with professor Pierre-Gabriel Jobin in the context of a symposium organized by the Association québécoise de droit compare/Quebec Society of Comparative Law, at McGill University, Montréal, April 24, 2009.
“Projet de réforme du droit français des contrats et le Code civil du Québec”, presented with professor Christophe Jamin, at McGill University, Montréal, February 10, 2009.
“Contrat et effet protecteur des tiers”, presented with Professor Sébastien Lanctôt, at the Faculty of Law, Université de Montréal in the context of the Quebec-Swiss day organized by Association Henri Capitant, November 13, 2008.
“400 ans de droit privé”, presented with professor Marie-Ève Arbour and Professor Nathalie Vézina in Québec in the context of the Judges of the Superior Court Annual Meeting, October 23, 2008.
“Culture et droit civil”, presented in Bâton Rouge, Louisiana in the context of the Louisiana days organized by Association Henri Capitant, May 19, 2008.
“À la recherche des limites du contrat : libres propos sur l’affaire Marcovitz c. Bruker”, presented at Université Laval in the context of a workshop organized by the Claire-Bonenfant Chair on the status of women, Québec, April 18, 2008.
“L’apport de l’analyse économique du droit des obligations”, presented in the context of a round table organized by the private law division of the Faculty of Law of Université de Montréal, March 28, 2008.
“Réflexions autour de l’arrêt Marcovitz : entre volonté et religion ou les limites du contrat”, presented in the context of conferences organized by the Notarial Chair at Université de Montréal, February 21, 2008.
“L’acculturation du droit québécois de la consommation”, presented in Lyon in the context of the 11th edition of rencontres juridiques organized by Université de Lyon II, November 23, 2007.
“Le contrat de consommation”, presented in Bogota – Columbia, in the context of the Columbian days organized by Association Henri Capitant, September 24, 2007.
“Contrat et religion” in the context of the symposium held under the theme “La religion, le droit et le raisonnable”, jointly organized by the Faculty of Law, the Canada Research Chair in North American and Comparative Legal and Cultural Identities and the Jean-Louis Baudouin Chair in Civil Law, June 18, 2007.
“Conférence de clôture sur l’union de fait” in the context of a symposium organized by the Notarial Chair and the Jean-Louis Baudouin Chair in Civil Law at Université de Montréal, March 16, 2007.
“Droit étranger, droit commun et droit de la consommation : influences et interdépendance”, conference presented in the context of the GREDICC cycle, UQÀM, March 15, 2007.
“Droit québécois de la filiation”, conference presented in the context of the Franco-Quebec days organized by Association Henri Capitant, Paris, December 13, 2006.
“La réforme de la loi sur la protection du consommateur et l’équité contractuelle”, presented at Université du Québec à Montréal in the context of a symposium organized by Fondation Claude-Masse, March 15, 2005.
“La filiation homosexuelle en droit québécois”, Paris, October 2004.
“Panorama du droit de la famille québécois”, Porto Allegre and Curitiba, Brazil, May 8 and 9, 2003.
“Les enfants du nouveaux siècle” presented in the context of Développements récents en droit familial organized by the Barreau du Québec, Québec and Montréal, September 13 and 20 2002.
“Quelle famille pour le XXIe siècle ?” presented in Brisbane, Australia, in the context of the International Academy of Comparative Law conference, July 16, 2002.
“Les minorités en droit de la famille québécois” presented in Mexico in the context of the international conference of Association Henri-Capitant, May 24, 2002.
“Les conjoints de même sexe en droit civil : situation actuelle et perspectives d’avenir”, presented in the context of a mini-symposium on family law organized by the Barreau du Québec, June 14, 2001.
“La discrimination en droit de la famille” presented in Paris in the context of the international conference of Association Henri-Capitant, June 1, 2001.
“Le mariage simulé” presented to judges of the Superior Court in the district of Montréal, April 2001.
“L’union homosexuelle et le Code civil du Québec : De l’ignorance à la reconnaissance?”, presented in the context of a symposium on discrimination organized by the Quebec chapter of Association Henri-Capitant, February 9, 2001.
Community and Civic Activities:
List all organizations of which you are a member and any offices held with dates.
Member of the Board of Directors of C.P.E. Pomme Soleil (2002-2006).
Since 2012, team member – Fondation du Centre de Réadaptation en Dépendance de Montréal marathon. In this capacity, I raised over $7,000 in order to help children whose parents suffer from addictions.
Member of the jury (2015) and jury president (2016) for the finals of a mooting competition, in order to select representatives from Collège Jean-de-Brébeuf to participate in the competition organized by the Bar of Montréal.
PART 11 – THE ROLE OF THE JUDICIARY IN CANADA’S LEGAL SYSTEM
The Government of Canada seeks to appoint judges with a deep understanding of the judicial role in Canada. In order to provide a more complete basis for evaluation, candidates are asked to offer their insight into broader issues concerning the judiciary and Canada's legal system. For each of the following questions, please provide answers of between 750 and 1000 words.
1. What would you regard as your most significant contribution to the law and the pursuit of justice in Canada?
In many different ways, the work of a law professor constitutes a powerful tool for contributing to the advancement of law and justice.
First, in my role related to the transfer of knowledge, I have had the opportunity to teach over 3,000 students. For all these students, I have always tried to emphasize the importance of looking beyond the technical aspects of legal rules, rather than simply focusing on such rules, and of integrating them into their context, particularly their social, historical and economic context, in order to better understand their meaning and scope. In so doing, jurists are able to assume their social responsibility, i.e. to grasp the systemic consequences of a rule and to ensure that the law, through its intrinsic values of equality, protection and liberty, is able to contribute to changes in society.
My desire to contribute to law and justice has also inspired a significant part of my writing, particularly in the area of family law, but also in the areas of contract law and consumer law. On multiple occasions, I have become interested in the historical evolution of legal rules in order to better highlight their true meaning and, in some cases, their inadequacy for modern society.
As an example, I would cite the establishment of the parentage of a child born to a surrogate mother. In a text entitled “Maternité de substitution et filiation en droit québécois” published in les Mélanges in honour of Camille Jauffret-Spinosi (Paris, Dalloz, 2013, pp. 65-79) I tried to demonstrate that, regardless of the various opinions on this issue, it was important for the law to treat children born to surrogate mothers in a manner consistent with the values of equality and to ensure the children’s care. I therefore developed an argument in favour of recognizing a child’s adoption by his or her intended parents, provided, of course, that the surrogate mother gave her consent. At the time that I wrote this article, there was a sharp divide in the case law and legal literature. In the case of Adoption-1445, 2014 QCCA 1162, the Court of Appeal ended this controversy by endorsing my line of reasoning and conclusions. As a second example, I would cite the regulation of common-law unions under Quebec law. On this subject, I have argued in several articles that it is important for the law’s protective function, particularly with respect to children, to apply in all situations of economic vulnerability, regardless of the type of union binding the partners (a civil union or a common-law union). These texts have been used extensively by the courts and in the report of the Advisory Working Group on Family Law filed in June 2015.
I have also worked hard, through both my conference presentations and my writing, to make the law more accessible. My efforts began with a book that I co-authored with Professor Didier Lluelles on the law of obligations. Since the treatise was initially published in 1998, it has become a classic in the field and has been cited over 600 times by all levels of court, including the Supreme Court. The book describes positive Quebec law concerning the law of obligations, but also provides a historical, critical and comparative view of the topic – thereby allowing readers, whether they be students, lawyers, notaries, or judges, to deepen their understanding of the law. The same goes for the two-volume text Responsabilité civile. This work has been an indispensable classic on the subject for several decades, and I had the honour of collaborating with the Honourable Jean-Louis Baudouin and Professor Patrice Deslauriers for the 8th edition.
Much more recently, I collaborated with five other authors to co-write Code Civil du Québec, Annotations – commentaires, a version of the Civil Code of Quebec with annotations and commentary. This book is intended to serve as a practical tool for all jurists and indeed all citizens who want to be informed about their legal rights. It provides a holistic and, as far as possible, objective view of the current state of Quebec law on this topic. The book represents the culmination of over seven years of work and is intended to be updated every year.
I have also contributed to the national and international influence of Quebec law and Canadian bijuralism through my lectures and conference presentations in different countries. I have contributed to the dissemination and influence of the 1991 Civil Code of Quebec – for instance, in the context of the reform of the Romanian Civil Code and the reform of contract law in France. My work as Secretary and President of the Quebec chapter of the Association Henri Capitant has also allowed me to develop an international network; I always try to promote a deeper understanding and appreciation of Quebec and Canadian law within this network. Lastly, as the Jean-Louis Baudouin Chair in Civil Law for the past ten years, I have contributed to stimulating research on Quebec civil law, particularly by organizing close to 100 conferences and symposia and publishing 18 books.
2. How has your experience provided you with insight into the variety and diversity of Canadians and their unique perspectives?
Both my personal and professional paths have demonstrated great sensitivity for the diversity of Canadian society – whether it be cultural, religious, social, sexual, or any other type of diversity.
First of all, my intellectual career reveals a keen interest in diversity and the challenges posed by equality, not only from a legal perspective but also, and with much more complexity, from a social perspective. An open society based on pluralism should focus on acceptance of others, rather than mere tolerance.
Beginning in 2001, I became interested in the many questions raised by same-sex families. At the time, few academics were interested in the legal questions surrounding the recognition of same-sex marriage, and more broadly, families with same-sex parents. In 2002, I published an article entitled “L’union homosexuelle et le Code civil du Québec : de l’ignorance à la reconnaissance?” In the article, I described the discrimination experienced by same-sex couples and the various options available to eradicate such discrimination and thereby fully recognize the equality of same-sex couples, both substantively and, just as importantly, symbolically. This initial article, which dealt with a minority community that had been stigmatized for so long, gave me a unique opportunity to learn about the experiences of members of other minority communities who have to fight continually for recognition of their rights – for example, members of minority religious communities or our Indigenous peoples.
This interest in the law as it affects the LGBTQ community also resulted in several other articles concerning filiation. For example, I published “Les enfants du nouveau siècle”, one of the first pieces about the reform of filiation in 2002, when legislators “de-gendered” the parental couple. Although critical on a technical level, this article highlighted the need to pay attention to the reality of families with same-sex parents – not only from the perspective of the parents’ equality, but more importantly from the perspective of the equality and best interests of the child. This piece was followed by others, particularly an article on surrogate motherhood, which again prioritized the equality and best interests of the child, and which proposed recognizing the intended parent’s right to adopt a child born to a surrogate mother, if the mother provided her consent.
More generally, my writing on family law is based on two principles: the protection of those who are vulnerable, and the importance of recognizing functional similarity. Family law must strive to treat situations that are functionally similar in an identical manner. I have applied this reasoning to same-sex couples, as well as to same-sex parents or common-law couples.
Several other pieces demonstrate my interest in and my sensitivity to diversity. For example, I have published articles on discrimination in family law, in which I addressed the issue of gender equality from a historical and social point of view, and on the treatment of minorities in family law. In the latter article, published in 2003, I dealt with the rights of transsexual and transgender individuals, well before the recent reforms to the Civil Code on this subject. In the same article, I also paid heed to religious diversity, particularly when it comes to consent to care or custody of children. In 2009, in a series of papers and conferences, I also focused my attention on religious diversity in the context of contract law – particularly the issue of religious divorce and, more broadly, the “contractualization” of the exercise of religious freedom and what can be referred to as contractual multiculturalism.
Apart from my academic writing, my personal interests also demonstrate sensitivity for minorities and diversity. Since completing my university studies, I have been able to pursue a career that has allowed me to remain open to plurality and thereby put our reality into perspective. I lived in France for a year in order to complete a postgraduate degree in law. Similarly, since becoming a professor, I have had the opportunity to visit over 20 countries in order to deliver conference presentations. I have been a visiting professor at eight universities in Belgium, France, Japan, and Tunisia, in addition to teaching comparative law vis-à-vis the family and individuals for several years at a summer university in Paris, which brings together students from over 40 countries. These trips have allowed me to meet students and professors from diverse cultures and, in a unique way, have taught me the importance of putting our perceptions of things into perspective, in a spirit which must go beyond mere tolerance to embrace acceptance of the other without any judgment.
3. Describe the appropriate role of a judge in a constitutional democracy.
Throughout my professional career, I have had the opportunity to note, on numerous occasions, that any functional democratic system relies first and foremost on a judicial system that has integrity and is genuinely independent of the legislative and executive branches as well as law enforcement, political movements, or public opinion. On this point, it is undeniable, in my opinion, that Canada has one of the best judicial systems in the world – something we should be proud of.
Despite this enviable situation, the fact remains that preserving our judicial system requires ongoing efforts by all stakeholders in society. The independence and the integrity of the judicial system relies on the strength of our institutions as well as on all Canadian judges. The primary mission of a judge in our constitutional democracy is therefore to strive to maintain the independence and integrity of the legal system. These efforts are not limited to maintaining integrity and impartiality. They also involve acting in a manner that will always uphold and strengthen public confidence in the judiciary and, by extension, in the entire judicial system, both in the context of exercising the role of a judge as well as in private life or life as an ordinary citizen. Aside from any constitutional guarantee, it is only confidence in the legitimacy of the law and its actors, particularly judges, by society as a whole, that allows for social cohesion and respect for the freedom and equality of all its members. To achieve this objective, it is important for all judges to keep their distance from dominant public opinion, to remain impervious and accomplish their role without trying to please the public. This responsibility therefore falls on all judges, collectively and individually.
Judges also guarantee respect for the integrity of our institutions and control of the exercise of their constitutional powers and prerogatives. Once again, this role relies on strong judicial independence as well as on a sincere belief in the value and need for public service. At a time when different types of investigations have cast doubt on the integrity of certain actors in our society, the courts have a unique and critical role to play in order to irrefutably emphasize the fundamental principle of equality of all before the law.
Judges must also interpret and apply the law in compliance with the values of the Constitution and society and the general principles of the law, without regard for personal convictions. This means playing a key role in reviewing, a posteriori, the constitutionality of laws, regulations, and government decisions. This power has always been one of the cornerstones of our constitutional legal order. However, although it was initially limited, essentially, to enforcing the rules of federalism, this power has increased significantly since the adoption of the Canadian Charter of Rights and Freedoms in 1982.
The reality that courts have an increased role in reviewing the constitutionality of government actions, while not unique to the Canadian legal system, has prompted ongoing debate about the legitimacy of this role, on the grounds that it has an undemocratic flavour, since judges are not elected or representative of society in all its diversity. While this debate is waning, it flares up periodically whenever a sensitive decision is expected from the Supreme Court. We need only cite the decisions, in recent years, regarding Quebec’s legal treatment of common-law couples or regarding assisted suicide. While this debate concerning judicial power is obviously legitimate from an ideological and a political point of view, the fact remains that legally, this power exists under our Constitution and it is therefore the responsibility of judges to exercise it in a humane and respectful way, within limits that reflect the spirit of the Constitution and respect for democracy. Chief Justice McLachlin reminded us of this in her decision rendered in A. v. Attorney General of Quebec, in which she stressed “the need to allow legislatures a margin of appreciation on difficult social issues and the need to be sensitive to the constitutional responsibility of each province to legislate for its population” (2013 SCC 5, para. 449). The judge’s duty to strike the right balance between “judicial activism” and “judicial restraint” is perhaps the most delicate of all the judge’s duties. It requires both appropriate humility and a heightened awareness of the judge’s role as the guardian of the Constitution and protector of fundamental rights and freedoms, as well as an appropriate balance between what contributes to accomplishing this objective and what contributes to frustrating this objective.
4. Who is the audience for decisions rendered by the court(s) to which you are applying?
Court decisions have multiple roles but are intended, first and foremost, to legally resolve a conflict between litigants. The primary role of court decisions is thus to render justice in such a way that litigants who are concerned and affected by a ruling are able to understand the logic and reasons behind it, even if they do not agree with it. This is the fundamental condition required for litigants to accept and recognize a decision’s legitimacy.
Access to justice does not simply mean access to a judge and a courtroom. It also involves the accessibility of the law, i.e., the ability of litigants to know and understand the law and the impact it will have on their lives, particularly in the context of a dispute affecting them. Rendering the law accessible, especially through plain language, caught my interest as an author (see my articles on the comprehensibility and readability of contracts) and as a professor. First of all, the task of teaching in and of itself obviously calls for accessibility – that is, presenting legal rules in a pedagogical and instructive way. This element of teaching has always appealed to me and been of particular interest to me, which explains why I have always enjoyed teaching first-year students. For these reasons, of all the courses I have taught, my favourite is the introduction to law offered in an intensive format right at the beginning of law school. However, beyond my efforts to make the subjects that I teach accessible and understandable, I have always insisted that my students, regardless of their level of study, understand the democratic need for the law to be as comprehensible as possible. Lawyers and notaries have a responsibility to exercise their profession in a way that will optimize the accessibility of the law.
In addition to ensuring that judgments can be understood by their primary readership, it is also important for a judge to remain mindful of the message that a judgment transmits to the parties involved personally and emotionally in the dispute. Decisions must therefore be written with empathy and humanity, taking into account the fact that beyond simply conveying the court’s ruling, words also carry weight, and the reasoning and the grounds have meaning. A sense of justice should not only flow from the actual sanction imposed, but also from the reasons underpinning it, from the judge and the law’s recognition of the parties’ actual situation, their emotions, and their view of the reality of the situation. These elements therefore contribute to rendering justice and maintaining the trust that litigants should have in justice and in the judicial system. Moreover, this judicial humanity must always be exercised with an eye to the diversity of litigants, adapting to this diversity as needed. For example, a decision dealing with a commercial dispute between two large companies clearly cannot be written in the same way as one concerning a family dispute or a dispute concerning a family business.
Beyond its primary readership and primary objective of rendering justice and resolving disputes between litigants, every decision also constitutes an enduring source of law. The decision will serve to advance the law, transmit knowledge of the law, and explain the law to jurists, practitioners or law students. For these stakeholders as well, it is important for judgments to be written in a way that will allow them to be integrated coherently into the body of case law. Therefore, the accessibility of the law, and the ability to understand it, also depends on case law that is written in a clear, orderly and structured manner in order to highlight the relevant principles and all the reasons related to these principles. The readability of case law thereby enables predictability and access to justice, insofar as it systematically allows for some disputes to be diverted away from the courts by facilitating negotiation and mediation by the parties.
As a result, every judgment must be written in a way that will enable it to fulfill various roles. The primary role is to render justice, not only through the formal judgment but also through the delivery, the message, and the values that are communicated to the parties. The secondary role is to contribute to the advancement of the law by being coherently integrated into the body of case law with the objective of contributing to the simplification and clarification of the law for all Canadian litigants.
5. Please describe the personal qualities, professional skills and abilities, and life experience that you believe will equip you for the role of a judge.
As a professor in the Faculty of Law at Université de Montréal, my career differs from the career of a more traditional litigator. However, I believe that my path has prepared me well for a career as a judge, since it has allowed me to acquire various professional skills as well as the personal qualities that are necessary and useful for this role. These values have developed around the three main components of my career: my academic career, my professional career, and my administrative career.
First and foremost, the academic component of my career. As a professor since 2000, I have been able to contribute, through my teaching, to the education of nearly 3,000 students in various areas of civil law, including family law, the law of obligations, and civil liability. In addition to teaching at my home university, I have had the opportunity to be a visiting professor at eight universities around the world, in Belgium, France, Tunisia, and Japan. These experiences certainly exposed me to new horizons in comparative law, but more broadly they allowed me to understand various legal and social cultures and consequently, to better understand Quebec society from a distance. My university career has also allowed me to publish 18 books and over 50 articles as an author, co-author or supervisor, and also to deliver over 60 conference presentations both here and in several other countries, such as the United States, Brazil, Colombia, Mexico, France, Belgium, Romania, Korea, Vietnam, and Australia. My work is regularly cited by courts at all levels, including the Supreme Court of Canada. In this way, my work has contributed to the development of Quebec civil law and allowed me to have a significant doctrinal influence both in Canada and internationally. These various academic experiences attest to my strong knowledge of the law, both in my areas of specialization and in other areas. On a more personal level, they have helped to forge my ability to express my positions clearly, concisely and succinctly, and have also enabled me to cultivate an independent mind, intellectual honesty, and the ability to constantly reject all forms of dogmatism. These are all necessary qualities for an academic position and certainly to become a judge.
Moreover, throughout my career, I have felt the need to remain professionally engaged as a lawyer. This has not only allowed me to develop a practical view of the law, its interpretation, and the challenges which its implementation poses for practitioners, but has also enriched my teaching and my research work. At the beginning of my professional career, I practised litigation at the firm of Martineau Walker (now Fasken Martineau) in the areas of insurance law, civil liability, and family law. When I became a professor, I continued my professional activity as a legal advisor to various firms. In that capacity, I had the opportunity to work on major cases and appear before all levels of court, including the Supreme Court of Canada, by contributing to drafting legal opinions, establishing strategic choices related to these opinions, and drafting plans for arguments, appeal factums, and applications for leave to appeal. This advisory function allowed me to work with teams of lawyers and to develop critical thinking skills and strategic insight. It forced me to deal with the demands of legal practice related to time management and the expectations of clients and other stakeholders. While working on these cases, I was able to maintain high ethical standards, always refusing to allow this professional activity to influence the direction of my academic writing.
Finally, in the past seventeen years, I have assumed numerous important administrative responsibilities within my faculty, within my university, and within the Barreau du Québec. In particular, I served as Vice-Dean of the Faculty of Law for two years and Interim Dean in 2014-2015. In addition to my responsibilities as a professor, I also currently hold the position of Associate Vice-Rector, Development and Alumni Relations for all of Université de Montréal, at the Rector’s request. In addition to these activities, I have sat on several university and professional committees, including the Mandatory Continuing Education Committee and the Equivalences Committee of the Barreau du Québec, and also served as Alternate Chair of the committee responsible for reviewing disciplinary decisions concerning students at Université de Montréal, a decision-making committee which requires strong leadership from the Chair. These various functions have allowed me to manage the requirements and challenges of decision-making, which are sometimes urgent and often sensitive, as they involve human aspects and conflicting values that must be reconciled. These various functions have also allowed me to develop personal qualities including the ability to listen and demonstrate tact, empathy, reasonableness and responsiveness, qualities that are necessary for any administrator.
I believe that these three dimensions of my career have given me the intellectual, practical, and personal qualities required to assume the difficult responsibilities of a judge, and have therefore provided me with adequate preparation to exercise those duties. A very good knowledge of the law and legal culture, an independent mind and the intellectual honesty of an academic, a sense of ethics, the experience of working within a team, the pragmatic and strategic view of a practitioner, as well as various other qualities, including the ability to listen and demonstrate the discretion, respect and empathy required of an administrator, make me a balanced, poised, and calm person. It would therefore be an honour, as well as an exciting challenge, to use my experience for the benefit of law and justice in the role of a judge.
6. Given the goal of ensuring that Canadians are able to look at the justices appointed to the bench and see their faces and life experience reflected there, you may, if you choose, provide information about yourself that you feel would assist in this objective.
In both my professional and my personal life, I have emphasized the same values and qualities that govern my actions and that my wife and I are striving to pass on to our two daughters.
First and foremost is loyalty, which we owe to family and loved ones, to friends, and to those who have taught us and shaped us. I have shown this sense of loyalty towards, for example, the professors who influenced my education, and who (each in their own way) allowed me to have the kind of academic career that I wanted, by publishing three books paying tribute to them (les Mélanges Jean Pineau, Jean-Louis Baudouin and Adrian Popovici).
A sense of commitment and duty. When we take on a commitment, it is important to follow through with all the patience and resilience that it may sometimes require. My professional career demonstrates that I have always tried to respect this principle and that I have never shied away from a challenge or a difficult mandate. For example, with just a few days’ notice, I agreed to assume the functions of Interim Dean of the Faculty of Law for almost a year. As the inaugural Jean-Louis Baudouin Chair in Civil Law, I also enabled the Chair to acquire a strong national and international reputation over the first ten years of its existence.
The desire to pass on to others what we have learned, in order to contribute to the collective effort to build an ever-improving society. This objective forms the very cornerstone of my choice of an academic career and has always provided me with subsequent guidance. I am very proud and feel privileged to have been able to contribute to the education of over 3,000 law students, who today express their talents in various ways. I am also happy to have supervised three doctoral students and some fifteen master’s students – three of whom have now become professors in faculties of law.
Finally, honesty, in all aspects of personal and professional life. Intellectual honesty, the rejection of all forms of dogmatism or concession not justified by our beliefs. But this also means humility and enough modesty to listen, understand and remain open to others.
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