The Honourable Justice David M. Paciocco’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 David M. Paciocco.
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: 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:
- Postgraduate: University of Oxford; 1981-1982; BCL
- Law school: University of Western Ontario; 1976-1979; LL.B
- University: University of Western Ontario; 1974-1976; no degree earned because of early acceptance to law school after two years of undergraduate study
- I was a full-time law professor for 30 years. Before I was appointed to the bench I attended dozens of conferences in Canada and presented at more than 100 legal professional conferences, including judicial conferences in Canada and abroad. Since my appointment I have attended and presented at approximately 20 continuing legal education conferences. I now instruct at the national provincial court judges’ “new judges school” and at a new judges school attended by judges from across the country, sponsored by the Court of Quebec each spring.
Honours and Awards:
- (1) Appointed Professor Emeritus, University of Ottawa, Faculty of Law, 2011
- (2) Honourary Doctorate – Laurentian University, 2005
- (3) The Chief Justice J.V. Milvain Chair in Advocacy, University of Calgary, Faculty of Law, 2005
- (4) David W. Mundell Medal, 2002, awarded by the Ministry of the Attorney General, Ontario, for distinguished contribution to law and letters, in particular for “outstanding contribution to legal writing, including many scholarly articles, [the] text The Law of Evidence, and Getting Away with Murder, which was acclaimed both by the legal profession and broader legal community.”
- (5) The Italian Canadian Community Centre of the National Capital Region and the Canadian Italian Business Professional Association, “for dedication to the Italian Canadian Community and the Legal Community,” 26 January 2012
- (6) The Justice I.A. Vannini Award, presented by the Electra Marconi and G. Marconi Societies, Italian service clubs in Sault Ste. Marie, Ontario, to an Italian Canadian, “in recognition of outstanding achievement, distinction or contribution in academic, cultural or athletic fields at the local, provincial, national or international level,” 14 May 2011
- (7) In 2006, the Board of Governors of the Canadian Red Cross Society award “for sound legal advice… towards a positive resolution of charges arising from the RCMP investigation of the tainted blood tragedy… [by] contributing to a “restorative justice” initiative…”
- (8) In 1999, Runner-Up, Donner Foundation Award for a book on Canadian public policy for Getting Away with Murder
- (9) In 1990, the Honourable Rex Mason Prize for meritorious public writing for “The New Zealand Bill of Rights Act: Curial Cures for a Debilitated Bill” (1990) NZ Recent Law Review 353
- (10) “The Remedial Constructive Trust: Priorities and Principles” (1989) 68 Can. Bar. Rev. 318, selected for inclusion in The International Library of Essays and Legal Theory (2nd ed.) on Restitution, the aim of which is to collect a substantial series of volumes in a wide range of important and influential essays in law, drawn predominantly from English legal journals
- (11) 1983-2011: Several faculty teaching awards, provided by the Common Law Students’ Association, University of Ottawa were received over this time
- (12) The University of Oxford B.C.L., received with First Class Honours
- (13) Magdalen College Book Prize, for first class honours B.C.L.
- (14) The University of Western Ontario, Faculty of Law
- Award for highest standing in third-year law 1979
- Award for highest combined standing in corporate/commercial law 1978
- Award for highest standing in business associations 1978
- Award for highest standing in family law 1978
- Award for highest standing in the law of evidence 1978
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:
- (1) I am a judge of the Ontario Court of Justice since August 27, 2011. My work is exclusively in the criminal law area.
- (2) Full Professor, University of Ottawa, Common Law Section, 1990-2011. Teaching areas: the law of evidence, criminal law, the law of trusts.
- (3) 1987-2011. Legal consultant representing various parties in a wide range of criminal, evidentiary and administrative law matters, including retainers by the Canadian Judicial Council, the Federation of Law Societies, both Federal and Provincial Ombudsman offices, and appearances as counsel, including for the Criminal Lawyers’ Association, the Canadian Association of Defence Counsel and media organizations.
- (4) Of Counsel, Edelson, Clifford, D’Angelo (formerly Edelson & Associates) 1998-2011. Appellate counsel, specialized trial advocacy and consulting predominantly in the criminal law, including appearances before the International Criminal Court for Rwanda.
- (5) 2010-2011. Instructor on behalf of the Government of Canada to Yucatan judges and prosecutors on how to conduct adversarial trials, after the Mexican constitution was amended to dispense with inquisitorial fact-finding. This involved two visits to Mexico, and a conference here in Ottawa. I subsequently participated in 2011 as the legal representative on the Governor General of Canada’s trade mission to Mexico, Peru and Guatemala.
- (6) Counsel to the Salhany Commission of Inquiry, Winnipeg, Manitoba, 2008, into the investigation and prosecution of Harvey Zenk.
- (7) Of Counsel, Addelman, Edelson and Meagher, 1994-1998. Appellate counsel, specialized trial advocacy and consulting predominantly in the criminal law.
- (8) Assistant Crown Attorney (on full-time exchange), Attorney General of Ontario, Ottawa, August 1990-December 1993.
- (9) Visiting Professor, Auckland University, Auckland, New Zealand (1989-1990) – taught the Law of Trusts.
- (10) Part-time Assistant Crown Attorney, Attorney General of Ontario, Ottawa, 1986-1989.
- (11) Associate Professor, University of Ottawa, Common Law Section, 1986-1989 – taught Evidence and Criminal Law.
- (12) Assistant Professor, University of Ottawa, Common Law Section, 1982-1985 – taught Labour Law, Trusts, Evidence and Criminal Law.
- (13) Assistant Professor, University of Windsor, 1981-1982 – taught Business Association, Commercial Transactions and Evidence.
- (14) Articles of Clerkship, Wishart, Noble, Sault Ste. Marie, ON (1979-1980) – responsibilities included weekly visits to offices in Wawa and Hornepayne, Ontario.
Non-Legal Work Experience:
- High school and summer employment: Boutique Studio (1968-1970); Churchill Plaza Pharmacy (1970-1972); Royal Mail (1972-74); Algoma Steel (1974); Weyerhaeuser Lumber (1975, 1976); Ontario Human Rights Commission (1977).
- I was raised in a community of labourers. Even before taking these positions – stacking shelves, driving a mail truck, scraping scale from under machines in a hot mill, pulling lumber off conveyor belts, and running a knot saw – I knew what “making a living” meant. These jobs nonetheless reinforced my sense that instead of “making a living” I wanted a career. I was among the more fortunate. For me these jobs were a transient means to an end. In the early years they allowed me to contribute to the family and to afford what would not otherwise be provided. In later years they funded my education. I have been a responsible, punctual and industrious person for as long as I can remember. I am sure that the work commitments I held as a young man had influence on this.
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.
- Canadian Association of Provincial Court Judges 2011-present
- Association of Ontario Judges 2011-present
- Education Secretariat (Ontario Court of Justice) 2014-present (board member, Chief Justice’s representative)
- Legal Aid Committee (Ontario Court of Justice) 2014
- CALT – Canadian Association of Law Teachers, 1982-2011
- Criminal Lawyers’ Association, 1994-2011
- CIAO – Canadian Italian Advocates Organization, 2000-2009
- Canadian Association of Law Professors (intermittently, over 30 years)
- Board of Editors – Canadian Criminal Law Review, 2000-present
- Board of Editors – The Philanthropist, 1994-2000
Pro Bono Activities:
- I have accepted invitations over the years to speak to community groups, and have done a tremendous amount of unpaid professional education. I have done pro bono litigation for professional organizations, such as the Criminal Lawyers’ Association and the Canadian Council of Defence Lawyers, but I have not provided pro bono services to private clients. In 2012, I established a criminal law mentorship program between law students at the University of Ottawa and local criminal law lawyers and judges. I continue to assist in the program, which now includes more than 80 students who are linked with local professionals, on an annual basis.
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.)
- University of Ottawa, Common Law Section, full-time professor, 1983-2011, when not on leaves of absence
- Auckland University, visiting senior lecturer, 1990
- University of Windsor, full-time, 1982-1983
- Dozens of presentations for the National Judicial Institute over many years
- Many presentations to the Ontario Court of Justice
- Many presentations at conferences of other courts across Canada, including before my appointment, one conference organized by the Supreme Court of Canada, and at least one by the Ontario Court of Appeal
- Canadian Bar Association lecturer on several occasions
- Ontario Bar Association lecturer on at least one occasion
- Criminal Lawyers’ Association Conference lecturer on several occasions
- International conference lecturer in New Zealand and Australia before both judicial and professional bodies
Community and Civic Activities:
List all organizations of which you are a member and any offices held with dates.
- I have not been a member of any public service or community organizations other than the legal organizations mentioned. I have not held office in any of them.
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?
- My most significant general contribution to the law and the pursuit of justice in Canada has been in the promotion of principled and workable legal rules. I appreciate that little of what I have developed is my own. The law builds on existing principles and prior examples, and so, too, does legal scholarship and argument, my own included. I also bear in mind that as a career legal academic, I had the luxury of research and reflection. This provided me with a chance to see not only the “trees” – the specific legal rules that become the preoccupation of practicing jurists – but also to become familiar with the “forest” – the network of principles and precedents that give us a system of law rather than an assembly of disconnected rules. Practitioners rarely have this opportunity. Mindful, then, that I have always borrowed from the work of others, and that I have had an advantaged opportunity to influence the law, I believe that I have made a contribution to the law.
- I know that my legal work is widely disseminated where it can influence others who are learning, applying and developing the law. It is relied upon frequently by students of the law, by lawyers and by courts. Together, my writings and my decisions have been cited in Canada more than 1750 times in reported cases alone. The Supreme Court of Canada has referenced or relied upon works I have authored or contributed to in 60 cases, in the criminal law, the law of evidence, in constitutional challenges, and once in refining the use of the private law remedy of constructive trusts.
- When I began my legal career I never expected that I would help to move the law. I knew that I could comprehend and explain complex material in simple terms. The possibility that my research and writing could influence the development of the law occurred to me for the first time when I set out to write Charter Principles and Proof in Criminal Cases, after 5 years of trying to survive course preparation. The Charter was still in its infancy at the time, yet I could see that its principles would have a profound impact on the law of proof. Using American Bill of Rights authority and the fledgling case law that was available, I urged that to be Charter compliant the law of evidence should become less rigid and more contextual, that judges must acquire greater discretion to ensure the purposive and fair application of even statutory rules of proof, and that exclusionary rules that deprived accused persons of relevant evidence needed to be modified. I also offered suggestions for the law of self-incrimination. Initially these proposals were met with reluctance. They all now describe the current law. I am not taking credit for that. Together, many jurists arrived at the same conclusions. My voice was added to theirs, and our law now reflects our collective work.
- In 1990 I was on sabbatical in New Zealand. I could see strains of case law throughout the Commonwealth developing a criminal concept of “abuse of process” that empowered judges to stay or stop criminal prosecutions. Canadian cases were beginning to recognize the authority of judges to remedy Charter violations in this way. A stay is an extreme response, and it struck me that if this authority was not to be abused we had to develop principles to guide us in determining when a stay is appropriate. I developed a legal test intended to ensure that this remedy would be applied only in the clearest of cases. Five years later the test I wrote about in a library in the Antipodes was adopted as the law of Canada.
- Since that time my work has contributed to other developments in the law. I was a small part of a broad movement to make the law of evidence more contextual, and less doctrinal, so that rules would apply only where their underlying purposes was being served. Along with other evidence scholars, most singularly the late Professor Ron Delisle, I promoted a simpler approach in which contextual evaluations of probative value and prejudice would govern admission. The Supreme Court of Canada came to agree and this simple formula now characterizes the law of evidence.
- My research has also contributed to what the Supreme Court of Canada has determined to be a balanced approach in protecting sexual offence victims from having their sexual experiences exposed during trial. The case I made for how the “rape shield” amendments should be interpreted to be constitutionally sound was ultimately adopted by the Supreme Court, albeit without direct attribution. This prompted Professor Delisle to publish a rebuke calling for credit to be given when the Court relies on the work of academics. The tradition, which had already starting to break down by then, was not to do so. Credit is now routinely given.
- My research and advocacy has also been cited in support of a balanced approach to protecting the therapeutic and other private records of victims, including in sexual assault cases.
- My work on expert evidence has also been used. My purposive explanation of the “necessity” component of the “Mohan test” for admissibility was quoted and adopted by the Supreme Court of Canada and is now widely reproduced. As indicated above, the legal standards I recommended for addressing bias and partiality of experts have been largely implemented.
- I did not invent the structure I adopted in the evidence text for evaluating the reliability of evidence but I promoted it, and it is now the test for the admissibility of child testimony. The framework I developed for analyzing the probative value and prejudice of similar fact evidence was adopted by the Ontario Court of Appeal and is now used generally.
- My work on the principled exception to the hearsay rule helped to provoke a formal split in the analysis between procedural features that permit the reliability of hearsay to be evaluated, and substantive indicia of reliability. It was also relied upon by the Supreme Court of Canada when it overturned its own practice of trying to distinguish between threshold and ultimate reliability factors.
- My writings on the exclusion of evidence contributed along with the work of many others to the retreat from automatic exclusion of “conscriptive evidence,” and they have recently influenced the Ontario Court of Appeal’s conception of when evidence will be considered to have been obtained unconstitutionally.
- My judicial work has also had impact. Decisions I have written are often relied upon by lawyers, and used by my colleagues, particularly when deciding whether to permit cross-examination of search warrant affiants; whether to allow technically inadmissible evidence in preliminary inquiries; when to convict suspects for not providing breath samples; and when to apply the victim surcharge.
- It is for others to judge whether these changes, in which I played a part, have improved the quality of justice. I honestly believe they have, and I am proud of what I believe to be contributions I have made to the law of Canada.
2. How has your experience provided you with insight into the variety and diversity of Canadians and their unique perspectives?
- I was raised in an extended ethnic family in a city that, a generation earlier, knew discrimination well. I have isolated memories of being treated differently as an Italian, but that was rare. I was young and secure, and while I had Aboriginal friends, I lived among my own.
- I attended white-bread universities when women were only beginning to enter the legal profession. And while I knew poverty living in a northern, working-class community bordered by two reservations and close to another, I was oblivious to the lost opportunities of poor children. I was not conscious of the demands of variety and diversity until the mid-1980s when “first wave feminism” swept Canadian universities.
- Looking back, my first reaction was to resist. I resented being treated as a monolithic male who had to bear the blame for inequality I did not create or support. Still, the force of the movement required that I listen and learn, and I did. While I judged some of the solutions proposed to be blunt and excessive, I came to be persuaded that the law had much to answer for in the way it treated women and children, including in the sexual assault area. I have always believed that the law belongs to everyone and should serve everyone. When it became obvious to me that it often failed in that, it had impact. I became increasingly comfortable with the importance of reflecting, as best as can be done, on the way law affects others. I came to accept the concept of substantive equality and “effects discrimination.” I tried in my work to find a targeted way to move the law forward, and I believe that this is reflected in my scholarship from that period.
- Still, even after this wake-up call, I continued to live a sheltered life, even as a professional. I had the good fortune to provide legal advice to the director of the Special Investigations Unit and was exposed, for the first time, to disquiet in Toronto’s black community over police shootings, but beyond that, I saw little of this side of life. The student body at the university where I taught tended to be from comfortable families, or better. Even when I began prosecuting, Ottawa was a French and English speaking homogeneous community. The mentally-ill were often in institutions, and homelessness is not what it is now.
- Things began to change at the law school, however, when we began in the early 1990s to aggressively recruit Aboriginal students and colleagues. I mentored some of these students, and we began, for the first time as an institution, to discuss how disorienting and ill-fitting the legal system can be for First Nations peoples.
- In the years that followed the student body changed, as the broader community was changing. Many South Asian women entered law school, and then other persons of colour. We spoke about multiculturalism and diversity for the first time rather than just about men and women, and French and English. Meanwhile the intake in the court system was changing. Indeed, it was not long before racialized communities were over-represented in our courts. If you want to see diversity, go to a provincial courthouse.
- I now work in those courts daily, and have been for five years. Being a provincial court judge is an immersion in the world of poverty, homelessness and mental illness. In Ottawa, it is a veritable baptism in the challenges faced by Aboriginals, most pervasively, Inuit people plagued by alcoholism and displacement, often stranded far from the north after having come here for medical reasons.
- I see these people in their worst moments, sometimes shackled, but always bowed and humiliated and hurting. Often sick, always in need. It is impossible not to be affected by this. One would have to be blind not to see the diversity of our communities, and heartless not to crave solutions to inequality and excessive use of the criminal law. And one would have to be obtuse to believe we are all equally responsible for who we are, or to fail to recognize that justice means different things to different people – that the power of the law has to be wielded differently, for different people.
- It has been a voyage of discovery, but I have learned that my neighbours, my fellow Canadians, include the diverse people who come before me. As with everyone else, they are as worthy as I am, and they are to be treated with respect and given the benefit of the law. I appreciate that we all see the world through our own experiences, even biases, and that it is challenging to confront our individual perceptions and to try to appreciate someone else’s perspective. Still, we have an obligation to try; these individuals are entitled to be understood by those of us who have power over them, and they are entitled to have their needs recognized. I recognize this obligation and I try to live up to it.
3. Describe the appropriate role of a judge in a constitutional democracy.
- I had the good fortune to be invited recently to participate in a joint conference presentation with an American academic. My assignment was to discuss recent developments in the Supreme Court of Canada. His was to discuss the United States Supreme Court. I used legal principles to explain why the Government of Canada sported a remarkable losing record in the Supreme Court of Canada in 2015 – approximately 80% of the time, even though that government had appointed most of the judges. The American academic spoke next. He did not discuss legal principles, or technique. Instead, in a mesmerizing presentation he spoke of the significance of the death of Antonin Scalia, and demonstrated convincingly that the accumulating mass of undecided constitutional cases before the United States Supreme Court will be resolved, not by legal analysis, but by who wins the election and therefore gets to appoint Justice Scalia’s replacement.
- The point of this anecdote is that there is not a single appropriate role of a judge in a constitutional democracy. In the United States, where a different conception of democracy obtains, the notion that judges are appointed to institutionalize the political views of the executive is acceptable. On this conception, it is acceptable for the executive chosen by a majority, to appoint judges who will be faithful to the majority’s political agenda.
- In Canada, things are different. In our constitutional democracy the role of a judge is to decide cases by applying the law, and never based on personal or political beliefs. The reason is simple. Without commitment to the ideal that judges must decide cases based on the law, there is no law, only power. Indeed, requiring judges to follow the law diminishes the risk that power will be abused. It insulates against corruption and discrimination. On our conception of constitutional democracy it is this that gives legal decisions their legitimacy.
- This is my belief about the role of a judge in a constitutional democracy, and I hold it strongly. I therefore bear the onus of addressing three common criticisms of it.
- The first is the challenge, “How can it be legitimate for judges who are bound by the law to strike down laws using the Charter?” The answer is simple. It is because the Charter is also a rule of law. Indeed, it is the fundamental law and it is binding on judges who must refrain from applying any law that contravenes its rights and freedoms in a way that is not demonstrably justifiable in a free and democratic society. What would show disrespect for the rule of law is for courts to refuse to apply the law of the Charter; or for judges to use the Charter instrumentally to avoid laws they personally do not like; or for governments to pass laws in knowing disregard of the Charter because of distaste for it, or because of disagreement with its undergirding political philosophy. The rule of law actually requires judges to strike down laws when required.
- None of this means that judges can be cavalier with the constitutional power entrusted to them. Declaring a law unconstitutional is a serious thing. Yet when a judge’s honest appraisal is that a challenged law is constitutionally infirm, it cannot and should not be applied. Others may disagree with the decisions I made in Michael and Madeley, or with the arguments I employed in O’Neill or Mills. The positions I took, however, reflect my sober, considered and humble effort to respect the Charter.
- The second challenge is that the “rule of law” assumes that the law is known, when, in fact, there is often controversy about what the law is. This enables judges to manipulate precedent, or to choose a conclusion and then find a reason for it. At the very least, it is said, the law is malleable enough that judges, seeing things from their own perspective, will choose to believe the law is what they want it to be. For this reason, some are openly critical of the integrity and worth of the rule of law.
- The reality, however, is that any power can be abused, and any power can be used poorly. In truth, there are guiding principles and legitimate interpretive techniques that can be extracted from an honest appraisal of the law that will, in most cases, expose the proper result. No human system can be expected to be perfect. All that can be expected is an honest commitment to the law, wielded by persons of strong legal competence and commitment to the rule of law. Being cynical about this and surrendering the goal of deciding cases according to law simply because it cannot be perfectly attained is nothing other than a surrender to mere power. In my view, a vital conception of constitutional democracy cannot afford to do that.
- The third challenge is that the “rule of law” is a conservative force, since law is based on precedent. It calls for current legal problems to be resolved using past solutions.
- In my view, to believe this is to fail to appreciate the modern conception of law. Statutes are now interpreted purposively and contextually, not literally, and they are subject to Charter review. We believe that Parliamentary intent is accurately captured by interpreting the law pragmatically, so that it addresses the problems that Parliament meant to address, consistent with the basic constitutional values Parliament is committed to. As for the common law, it develops, and it does so consistently with Charter values and modern conceptions of fairness, morality and justice. These principles come to be reflected in the jurisprudence, interstitially. Now, many if not most common law rules operate using standards that are controlled by discernible guiding principles. These rules enable contextual and relevant outcomes. The law can be kept current in this way, but its evolution must be the result of the reasoned application and development of principle, not the product of simple personal preference.
- I believe strongly in the rule of law and in the legitimacy of constitutional review. The Canadian conception of a constitutional democracy that I understand demands it.
4. Who is the audience for decisions rendered by the court(s) to which you are applying?
- There are three constituencies that should be spoken to in judicial decisions. The primary audience for any judicial decision is the “parties” to the proceeding, understood in a broad sense. It is equally important, however, that judges speak in their decisions to the public at large, to whom the law belongs. And there is an additional primary audience for appellate court decisions, in particular, namely lawyers and judges. A worthy judicial decision is crafted with all of these three constituencies in mind, and is crafted in a way that enables all of them to understand. I will comment on each audience in turn.
- Technically, the term “parties” refers to those who have standing in a case because they have a direct, “legal” interest in the litigation. These people are an obvious primary audience for decisions rendered. They will have been given standing because their liberty, or their reputations, or their families, or their fortunes will be the subject of the ruling. Naturally, these parties are invested, and they care. In a society that respects the integrity of persons, sheer human decency requires that those who will be affected by the use of power be spoken to, and not simply about. It requires that a judge who makes a decision to absolve someone, or to impose a burden on someone, will explain why this is being done.
- Indeed, more is needed. The parties must be spoken to as real people and with appreciation of the stake they have. In writing a decision judges should think of “faces,” not “cases,” and they should consider and speak to those “faces” in their decisions so that those decisions do not become disconnected and insensitive and so that their decisions are understood.
- The technical concept of “parties” is not broad enough, however, to catch everyone who has a significant stake in the outcome, and who deserves to be spoken to and considered in this way. A sexual offence victim, for example, is not technically a party in a criminal case. The prosecutor is since the offence is notionally against the state. Yet the interest of the victim is intense. Their mental health, their sense of integrity, and their quest for justice are all at stake. Nor is the parent of a youthful offender a party. Yet if they are a caring parent, their fortunes are tied to their child. Similarly, the Black community is not a party in a case where racial profiling is alleged. Yet their interest in redressing discrimination will be palpable. Again, human decency requires that a judgment speak to all of the parties in a broad sense – everyone who has a direct and material interest in the case, whether they have standing or not.
- Then there is the public. The law is theirs, and judges wield the power the law holds in the public trust. This has three implications, making the public a primary audience for court decisions.
- First, as with any trustee, there is a moral imperative that judges show that they are acting appropriately and competently in handling what belongs to others. They have to explain to the public what they have done with the law that has been entrusted to them, and why they have done it. When someone undertakes stewardship of the law as a judge, they are accepting the obligation to account for that power through the reasons for decision they give. To discharge that obligation, judges must speak to those to whom the duty is owed.
- Second, since the law should reflect the needs and basic values of the community it serves, sober and considered public criticism is important to the proper development of the law. If the law loses touch, it will lose its respect and so, too, will those who administer it. The law will lose its efficacy and fealty. Judges therefore need to speak to the public in their decisions so that the public can respond. A democracy demands no less.
- Third, there is the educational function served by the law. One American judge called law “the omnipresent teacher.” What he meant is that the law reflects social standards and societal values, and one of the primary roles of any judicial decision is to inculcate or promote support for those standards and values. This can be done by sending messages that there will be consequences, such as through general deterrence in both criminal and tort law. Arguably, it can be done even more effectively by reaffirming those standards and values for the law-abiding.
- Indeed, there is a credible school of thought that the most effective audience to address in a criminal case when it comes to promoting lawful conduct is not the person who will be punished, or those members of society who are prone to antisocial behaviour. The most effective audience to address is those members of the public who have yet to violate standards or transgress basic values. When a court speaks, it speaks on behalf of its community, and those who feel the judge speaks for them are more apt to claim the decision, reinforce their commitment to the values it expresses, and gain affirmation that they are good citizens. I do not know how the law can fulfill its role as “omnipresent teacher” if judgments are drafted without the public in mind. It is a primary audience for any judicial decision.
- Finally, there are other judges and lawyers. Any judicial decision must speak to them both about the law and about the reasons for the law. This is because, in our common law system, jurists learn the law from one another. The law builds and develops through shared efforts. If lawyers and jurists are not communicating about the law, it cannot progress.
- While this is important for trial judges, it is imperative for appellate judges to speak to lawyers and judges about the law when deciding cases. After all, appellate court precedents are binding on lawyers and lower courts, and they carry the potential for significant persuasive value even before other appellate courts nationally. An appellate judge must bear this in mind when crafting a decision and speak to other members of the profession with clarity and with explanation.
- One of the many things I have always loved about the law, and that I continue to marvel at, is that when a court is convened it represents a coming together of a society. The trial is a morality play in which the judge speaks publicly for the community in a ceremony designed to redress an alleged transgression or wrong and to reinforce those values raised by the law. The enterprise could hardly be more important. The audience to be addressed, if the law is to work to its potential, is multi-faceted, and each segment of that audience must be spoken to by the judge.
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 hope I have demonstrated in the essays above that I have the personal qualities, professional skills and abilities, and life experience that will equip me to be an appellate judge. If that hope is realized, I can take only limited credit for it. I won the birth lottery, and my career has been a string of good fortune. I will therefore describe my personal qualities shortly, but I need to acknowledge first that the characteristics I claim are gifts that were given to me because I was born into a stable, loving family in an ethnic community of simple hard-working people. And I was born at the right time.
- Only a generation before, my father’s family arrived with nothing. They felt the isolation and rejection of being different, yet worked together to build a life. In spite of what they experienced, this was a thankful generation, taken in by a land of opportunity and spared the rural poverty of home and the ravages of a horrid war. I had an uncle who was named “Ontario” in gratitude. My wife has an aunt “Ontaria.” By the time I arrived, the children of this generation were becoming doctors and lawyers, mayors and judges. My family and my community were established, secure, and proud.
- Only a generation before, my mother’s mother was an Aboriginal orphan, treated as a lesser person. I was spared that, as well, and what was modeled for me by my grandmother was discipline, self-sufficiency, hard work and strength of character.
- What has all of this left me with? I know I am hard-working. I know I am bright and that my native intelligence has been nurtured. I know I am compassionate. I know people and their intrinsic value. And I know the importance of family and community. I consider these to be gifts given to me by fate and family, but they help me every day as a judge.
- As for my career, it too has been serendipitous. I went to university because my parents, who had never seen one, said I must. I ultimately chose law school because I sensed that lawyers did important jobs, and at twenty-one I applied and entered. I did not know what to expect, but I quickly learned that I had stumbled not into a future job, or a career, but a calling. I proved to be gifted in the law, and so, after graduation, instead of going back to Sault Ste. Marie where I had planned to make my life, my wife persuaded me to study abroad, just for the adventure. I chose Oxford because I had heard of it, and the education I received was spectacular. I then chose to teach because my wife and I were broke after so many years in school and we could not afford any more student debt for the year-long bar admission course. I had learned that if I taught for three years, I could get called to the bar without writing the exams. So I began to teach and I was seduced by it. It gave me the chance to immerse myself in the law, not just to learn it for an exam, but to master it so I could communicate it to others, and write about it with authority. After several years of this, and in spite of my passion for teaching, I felt it was time to go home to practice. I was offered a job as a prosecutor. The Dean of my faculty talked me out of taking it when I went in to announce my resignation. He convinced me to try prosecuting part-time and to hold onto my tenured position. I did, and the part-time prosecuting brought me into the real world where I craved to be but left me the privileges of the academy.
- I loved the courtroom and became a skilled lawyer. Since I was a trained teacher with real-world experience I came to be in demand as a conference speaker, primarily for judges, and I crossed the country repeatedly. I took a leave of absence for two years and worked full-time as a prosecutor before I moved to defence work and consulting. My practice thrived. I appeared before the Supreme Court of Canada repeatedly, and at appellate courts across Canada, and ultimately, before an international war crimes tribunal. I was called on regularly to give opinions to governmental and non-governmental organizations.
- Meanwhile these real-world experiences were enhancing my scholarship, making it relevant and useful and in demand. I carried on this way for fifteen years, and then, sensing the need for a change and wanting to fulfill a long-term ambition, I became a trial judge and I have served as one for five years. I have been humbled by the experience and enriched by it.
- As is evident, I have, over time, traded the energy and promise of youth for the wisdom and learning of experience. It has been a good exchange. My career has been rich and diverse. I am a lawyer, educated in the best of schools. I am a former law professor who had the luxury to master both the law and legal techniques. I have learned, as an academic, to write with clarity and purpose. I learned during that career how to communicate even complex concepts in a simple digestible fashion. I have seen the criminal courtroom as a prosecutor, working with victims, and as a defence lawyer, working with those who are accused. And I have been a judge, fully cognizant of the power and responsibility of the position and trust reposed. Over my many years in this profession I have also become adept in reasoning about life, and about the law. Over the years, my sense of awe with the power of law, and my intrigue with the enterprise of justice has not waned. It is reinforced every day, when I see the people it will affect and I am charged with their well-being and with holding them to account.
- Simply put, I know I have acquired through good fortune the tool kit and the experience to be a fine judge. And I know I have the humanity and I hope, the humility, to be a fine judge. Indeed, I believe I am a fine judge. I also believe that my entire career has prepared me for the position for which I am applying, and that is why I am doing so. I have a contribution to make.
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.
- I believe I have done this already. There are not many pages in the book of my life that I have not opened here, and I hope what I have already said leaves you with a sense of how I am apt to be perceived as an appellate court judge.
- I am confident Canadians in the legal profession will understand and support my appointment. I have wide exposure to the profession – academics, law students, lawyers and judges – and I have achieved some gravitas from my legal writing. I believe my reputation is strong and that those who will sit with me and appear before me as counsel will consider me worthy to be there.
- As for the ordinary Canadians who look at the justices appointed to the bench, if they glance they will see a middle-aged, white male baby boomer with an Italian name they will never learn to spell.
- If they are curious about my professional life experiences they will see a serious, able scholar and jurist with an uncommon mastery of the law, who works hard to do the best he can because he understands the urgency of the enterprise.
- If they are interested in learning about my life experiences they will see the promise that, no matter where you come from in this great country, even a rusty blue collar town in the north, and no matter what your social status is, even the lower-middle class progeny of an unwelcome immigrant population and the grandson of an orphaned First Nations girl, you have something important to offer to your community.
- Most importantly, if they watch me comport myself on the bench and listen to what I have to say, I hope and believe that Canadians will see someone who is respectful, learned in the law, experienced in life, and who cares about and strives to understand everyone affected by his decisions.
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