The Honourable Justice Tracey L. Clements’ Questionnaire

Backgrounder

Under the new Judicial Appointment Process announced by the Minister of Justice on October 20, 2016, any interested and qualified Canadian lawyer or judge could apply for such appointment by completing a questionnaire. The questionnaires were used by the Judicial Advisory Committee to review candidates and submit a list of “highly recommended” and “recommended” candidates for consideration by the Minister of Justice. Candidates were advised that part 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 Tracey L. Clements (view biography).

Questionnaire for Judicial Appointment

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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: No

Without further training, are you able to discuss legal matters with your colleagues in: 

  • English: Yes 

  • French: No

Without further training, are you able to converse with counsel in court in: 

  • English: Yes 

  • French: No

Without further training, are you able to understand oral submission in court in: 

  • English: Yes

  •  French: No 

PART 6 – EDUCATION

Name of Institutions, Years Attended, Degree/Diploma and Year Obtained: 

  • University of New Brunswick – joint honours in English and Political Science (1991)

  • University of New Brunswick Law Degree (1994)

Continuing Education:

  • I have attended various continuing education sessions and conferences over the years, particularly in my areas of practice, and less frequently outside my areas of practice. Some of these include:
    • Insurance and related topics (personal injury and fatality claims)
    • Involvement and participation in CBA's Women's Forum
    • Human rights
    • Labour and employment (wrongful dismissal, constructive dismissal, duty to accommodate and related areas)
    • Experts
    • Settlement conferences and pre-trial conferences
    • Mediations
    • Fertility and surrogacy law
    • Legal drafting
    • Ethics
    • Preparation of witnesses
    • Appeals
    • Aboriginal law
    • Business valuation
    • Structured settlements
    • Quantification of claims (including presentations by actuaries and economists)
    • Education
    • Evidence and related matters
    • Administrative law
    • Practice management, practice innovation and related areas (including a conference I attended a couple of years ago in Chicago which was very worthwhile)
    • Technology
    • Privilege
    • Criminal

Honours and Awards:

  • I have received some academic awards and honours many years ago while attending University. I received my Queen’s Counsel designation in 2010.

  • I have also been fortunate to receive a number of recognitions:

    • Best Lawyers 2017 Insurance Law “Lawyer of the Year” in Charlottetown

      • Best Lawyers: Corporate and Commercial Litigation, 2006, 2008-2017

      • Best Lawyers: Insurance Law, 2008-2017

      • Best Lawyers: Personal Injury Litigation, 2008-2017

      • Benchmark Canada, Top 25 Women in Litigation, 2014-2015

      • Benchmark Canada, local litigation star (Civil Litigation, Labour and Employment, Insurance), 2012-2014

      • Benchmark Canada, local litigation star (Labour and Employment, Insurance), 2015

  • Benchmark Canada, local litigation star (Insurance, Labour and Employment, Medical Malpractice, Personal Injury), 2016

    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:

  • I commenced my Articles with the Charlottetown office of Stewart McKelvey in the summer of 1993 (which students were authorized to do at the time). Upon graduating from law school in 1994, I continued my Articles with Stewart McKelvey and was called to the Bar in February of 1995. I have been with Stewart McKelvey since that time, and became a partner in January 2009.

Non-Legal Work Experience:

  • As noted, since completing my law school I have practiced with Stewart McKelvey. As such, my only other “non-legal work experience” would be in the context of community and volunteer involvement. For example, historically, I was involved in various capacities with the Canadian Red Cross (PEI Branch) as well as Big Brothers, Big Sisters of PEI. Most recently I have been a member of the Board of Sport PEI for several years, currently serving as President of the Board.

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.

  • I am an active member of the Law Society of PEI and have served on various Law Society Committees. I currently sit on the continuing legal education committee.

  • I am also a member of the PEI Branch of the Canadian Bar Association and currently Chair the Insurance Section.

  • I have been provided with many leadership and management opportunities with the firm both at the local office level as well as the firm­ wide level. In the past, I have chaired our office's local three person management committee and was also the PEI office representative on the firm-wide partnership board for many years.

Pro Bono Activities:

  • Over the past years, and like many practicing members of the Bar in PEI, I have provided legal assistance in a variety of matters on a pro bono basis. Certainly this would not be the bulk of my practice.

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.)

  • I have been involved with continuing education over the years in the context of:

  •  
    • Presentations to clients;
    • Presentations to industry groups (for example, our firm has an annual insurance seminar where we present on a variety of topics);
    • Continuing legal education sessions through the Law Society; and
    • Internal presentations to summer students, articling clerks and associates.

Community and Civic Activities:

List all organizations of which you are a member and any offices held with dates.

  • I have a variety of community involvement over the years. I have been a Board member of Sport PEI for several years, and currently serve as President. One of the programs that is most rewarding is the Board’s involvement with Kidsport, which is a program that provides funds to “financially challenged” families in order to allow children to play organized sport. As noted, I have historically been involved in other community groups.

  • I am also a Board Member of the Holland College Foundation.

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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?

  • I am not, nor have I ever been, a judge in the Canadian legal system. A such, I have not authored judicial decisions. I am likewise not an “academic” in the traditional sense and have not been a faculty member at a law school. My experience has been as a practicing lawyer, in every sense of the word, for over 20 years. I believe that for all of its shortcomings and deficiencies, Canada truly has one of the best, if not the best, judicial systems in the world. My “role” or “contribution” to that system has simply been to act as a practicing lawyer – to uphold the values that our system demands.

  • At the core of our legal system and arguably our society as a whole, is the notion that the rule of law is absolutely paramount. But the rule of law of course does not exist in a vacuum. I would suggest that our system only truly functions as it should when we ensure fairness exists within our system. I fully appreciate that the notion of fairness may be fleeting and very challenging. I also fully appreciate that it is often easy to make such pronouncements and presumably exceedingly difficult in practice.

  • I have been in private practice, primarily with a litigation practice, for the duration of my legal career to date. As such, I have obviously acted as an advocate for clients in a multitude of matters. But even while acting as an advocate (and where it be at a discovery examination, advising clients on a human rights or employment matter, or addressing the court), I have asked this question to myself many, many, many times – “Is this fair?”

  • So, upon some reflection, I would suggest that my contribution is to attempt to bring fairness in my involvement with our legal system.

2. How has your experience provided you with insight into the variety and diversity of Canadians and their unique perspectives?

  • I recently attended a comprehensive session entitled “Cultural Competence” as presented by diversity specialist, Ritu Bhasin (Bhasin Consulting Inc.) in the fall of 2016. She addressed a multitude of issues including diversity, inclusiveness, and in particular bias. This was a very enlightening session for me.
  • To state the obvious, PEI, historically, has not had a lot of "diversity''. This is changing and I think we are a stronger, more vibrant, province because of it. This applies to the country as a whole. Likely because of a few factors, I think many of us are more aware of diversity (and unconscious bias) than we ever have been. And while some of these conversations are often difficult to have, we, as a province and as a country, absolutely need to have them. We will all be better for it.
  • In many areas of our lives (family, work, school, sports, community, business, law partnerships and associations, and of course in our practices), we are exposed to "differences" and different perspectives. While I fully appreciate that the instinct is often to resist those differences, I have thankfully come to the realization in my own life, that when we truly embrace those differences, is when we are really "at our best".

3. Describe the appropriate role of a judge in a constitutional democracy

  • I have chosen to provide a somewhat “philosophical” answer. There is a strong argument to be made that a judge in a constitutional democracy is the legal and moral compass of society. This is a heavy, heavy burden. A judge really is both the gatekeeper and the caretaker of a constitutional democracy. He or she is the paramount “check and balance” in our system. The eight and burden of those roles is not lost to me. I does seem to me that our system really must constantly strive to strike the balance of upholding and respective the rule of law (which forms the very foundation of our system and our society) but also recognizing the many, many challenges and obstacles that many face.

4. Who is the audience for decisions rendered by the court(s) to which you are applying?

  • I am applying for the superior court of Prince Edward Island (Supreme Court and Court of Appeal). The immediate audience for decisions would be the parties involved. The broader audience would be parties and counsel with similar issues. The even broader audience, depending of course on the issues, would be residents of PEI, as well as residents in other Canadian jurisdictions. Of course, the media is in some ways the audience, though really the media should be the “messenger”.

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.

  • I have contemplated for some time the “weight” of potentially being a judge. To truly sit in judgment is a heavy, heavy task. Quite frankly, I am somewhat uncomfortable articulating the “personal qualities, professional skills and abilities, and life experience” that, in my view, would equip me for the role of a judge. Rather, I will simply provide some general comments about myself.
  • My date of birth is February 2, 1969. I am married and live in the community of Mermaid with my husband and four children (one boy, age 14 and three girls ages 12, 10 and 8). My husband is a carpenter but (thankfully) tends not to work fulltime hours. He is very supportive of my “professional life”. We have a fairly busy household as one would expect, and the kids are involved in a variety of school and community activities, and in particular sports. My husband and I spend a lot of our “free time” shuttling the kids to and from their various activities, and spend a lot of time at the hockey rinks, ball fields, etc.
  • In terms of historical demographics, I grew up in (very) rural south eastern PEI, in the small community of High Bank. I am very proud of this. I continue to be drawn to this part of the Island, and a “visit to the country” brings much clarity and grounding to my life. My mother and late father raised five children and I remain close to my four siblings (a brother and three sisters). Siblings provide the ultimate “reality check”. I certainly did not grow up in a legal or even a so-called “professional” family. However, I was actually drawn to the law from a very young age. I continue to thoroughly enjoy the practice of law.
  • To state it simply, the values instilled upon me in my youth have provided the foundation of my life – values instilled upon me by my parents, both sets of grandparents and my community in rural PEI. The following come to mind, in particular: work ethic; personal responsibility; fairness; empathy. For as long as I can remember I have, for whatever reason or reasons, been self motivated and tend to have high standards and expectations for myself (which of course is both a blessing and a curse). I do believe in the inherent value in a “hard day’s work”. However, it is not lost on me that many others have worked just as hard, if not harder than I, yet they have not been afforded the opportunities that have been provided to me.
  •  Like all of us, I have been shaped by a multitude of experiences. I will leave to the “powers that be” to decide if my qualities, skills and abilities, and life experiences, are such that I would be well equipped to provide a valuable contribution to the judiciary.

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.

  • The only other comment I would make is that I am coming to the conclusion as I age that it is very, very difficult to truly “teach” perspective – not that we should stop trying. We can and must try to become more aware of the challenges and experiences of others. We can and must train ourselves to become more aware of our own internal, often unconscious, biases. But often, we “are who we are” and our experiences “are our experiences”. As I have stated, I do believe that we have one of the best, if not the best, systems in the world. I am incredibly proud of our province and our country. I am also incredibly proud of our judicial system – in this province and likewise in this country. But I also think that if we are honest with ourselves, we would acknowledge that increased diversity and increased perspective make for a stronger judicial system and, in turn, a stronger province and country.

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