The Honourable David Labrenz’s Questionnaire

Backgrounder

Under the new judicial appointment process introduced 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, with their consent, should they be appointed to the bench.

Below are Parts 5, 6, 7, and 11 of the questionnaire completed by the Honourable David Labrenz.

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: 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:

  • LL.B. (Bachelor of Laws), University of Alberta, 1986
  • B.A. (Bachelor of Arts), 1983

Continuing Education:

The Alberta Crown Prosecution Service, for which I have worked continuously since 1991, provides a vibrant and strong program of continuing education for its membership. Until recently, our educational programming has included twice yearly in-person educational conferences (we are presently limited to one in-person conference) along with webinars; in-person conferences devoted to specialized topics such as homicide; legal research papers and consistent electronic educational updating.

Honours and Awards:

  • 2008-2009 Alberta Justice Regional Prosecutions Award of Excellence
  • 2009 Lethbridge Prosecutions Team Award
  • 2010 appointed Alberta Queen’s Counsel

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:

  • Appellate Counsel, Appeals Unit of Alberta Justice and Solicitor General, 2016-present
  • Education Counsel and Acting Director of Education, Alberta Justice and Solicitor General, 2014-2016
  • Crown Prosecutor, Alberta Justice and Solicitor General, Lethbridge Prosecutions, 2005-2014
  • Assistant Chief Crown Prosecutor, Alberta Justice and Solicitor General, Wetaskiwin Prosecutions, 2000-2005
  • Crown Prosecutor, Alberta Justice and Solicitor General, Wetaskiwin Prosecutions, 1994-2010
  • Crown Prosecutor, Alberta Justice and Solicitor General, Peace River Prosecutions, 1991-1994
  • Sole practitioner, Lac La Biche, Alberta, 1990-1991
  • Associate lawyer, Ouellette and Hajduk, St. Paul, Alberta, 1988-1989
  • Sole practitioner, Lloydminster, Alberta, 1988
  • Articling student, Shoctor, Hill, Mousseau and Starkman, Edmonton, Alberta, 1987

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.

  • Alberta Crown Attorney’s Association, 1991-2017
  • Vice President, Alberta Crown Attorney’s Association, 2011-2012

Pro Bono Activities:

I am not presently engaged in pro bono legal activities. My employer necessarily restricts the types of pro bono work that I can conduct and, in particular, I cannot provide legal advice outside the scope of my employment. I have, where work commitments permit, been involved in legal education. There are opportunities that I have not yet been able to take advantage of in the area of teaching. For example, I have an outstanding invitation to teach advocacy at Notre Dame University in South Bend, Indiana. Similarly, I have received invitations the last two years from the University of Calgary Law Advocacy Program, but the timing just did not work out. I hope to do so next year.

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, or the Canadian Institute for the Administration of Justice).

  • Panelist Instructor, Western Crown Conference – various legal topics pertaining to sexual assault, 1994 and 1998
  • Instructor, Modern exceptions to the hearsay rule – Alberta Justice Crown School, 1998
  • Instructor, Lethbridge Regional Police – Recruit Training, 2006
  • Instructor, Lethbridge Regional Police and Social Workers – Sexual assault investigations, 2006-2007
  • Instructor, Lethbridge RCMP – “How to prepare to testify in court?”, 2010
  • Instructor, Canadian Police College – Major Case Management for Police – in Edmonton, Calgary and Ottawa, 2009-2014
  • Instructor, Alberta Specialized Law Enforcement Homicide Course – The law of undercover cell shot operations, 2011
  • Instructor, Alberta Specialized Law Enforcement Homicide Course – Exclusion of evidence under s. 24(2) of the Charter, 2011
  • Instructor, Alberta Crown Prosecution Service Homicide Course – Experiences in the prosecution of a homicide case, 2011
  • Instructor, Alberta Crown Prosecution Service Spring Conference – Sentencing, 2011
  • Instructor, Alberta Crown Prosecution Service New Crown Orientation – Criminal evidence and procedure basics, 2011
  • Instructor, Alberta Crown Prosecution Service New Crown Orientation – Criminal evidence and procedure basics, 2012
  • Instructor, “Faces of Change,” recommendations on sentencing for those afflicted with Fetal Alcohol Spectrum Disorder, Lethbridge College, 2012
  • Instructor, Medicine Hat Police Service – Search warrants, 2014
  • Instructor, Alberta Crown Prosecution Service New Crown Orientation – Bail, 2014
  • Instructor, Alberta Crown Prosecution Service New Crown Orientation – Cross-examination, 2014
  • Instructor, Alberta Crown Prosecution Service New Crown Orientation – Speaking to Sentence, 2014
  • Instructor and organizer, Alberta Crown Prosecution Service Crown School – Cross-examination, 2015
  • Instructor, Alberta Crown Prosecution Service – Intensive Advocacy, 2015
  • Instructor and organizer, Alberta Crown Prosecution Service Crown School – Jury trials, 2015
  • Instructor and organizer, Alberta Crown Prosecution Service Crown School – The law of common law voluntariness, 2015
  • Instructor, Alberta Crown Prosecution Service Homicide Course – Compelling closing addresses to the jury, 2015
  • Panelist, Alberta Crown Prosecution Service Homicide Course – Managing your murder: The big case, 2015
  • Organizer, Alberta Crown Prosecution Service Fall Educational Conference, 2015
  • Panelist, Alberta Crown Prosecution Service Fall Educational Conference – Effective and Efficient Prosecutions, 2016
  • Panelist, Alberta Crown Prosecution Service Fall Educational Conference – Appeals Update, 2016
  • Instructor, Alberta Crown Prosecution Service – Sexual Violence Investigations and Prosecutions – R. v. Jordan, practical implications, 2017

[...]

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?

As a prosecutor and a trial lawyer of over twenty-six years, the overarching temptation in response to this question is to select a trial, or a series of trials, to define my career.   This might involve selecting a case, or cases, that advance the substantive law in a significant way; or it might involve a case that helped to shape the “living tree” that is the Canadian Charter of Rights and Freedoms. I could select a significant case that had particularly difficult challenges or hurdles. Or, I could point to my recognition as a legal subject matter expert in a specialized area of the law. My extensive efforts as to leadership, mentorship and education as well could qualify as a significant contribution to the law.

I could, along those lines, point to the trial prosecution, and appeal to the Supreme Court of Canada in R. v. Mack, as a career defining case. In particular, that case illustrated the types of factual and legal considerations a court could safely consider in finding the prosecution has overcome the presumptive inadmissibility of a “Mr. Big” confession made to undercover officers.

I could speak of the great number of significant, complex and serious criminal trials that I have conducted along the way and the incredible toll those crimes extracted from various victims, families and accused. As a recognized legal expert in the prosecution of serious violent crime, and a legal advisor to the RCMP provincially as to use of the “Mr. Big” homicide technique, I could speak about my contributions in providing expert legal advice.

Similarly, I am proud of my efforts to advance the education of police and prosecutors as detailed earlier in my application.

I am going to resist these temptations, as I do not believe that any of these contributions either singularly, or in combination, represent my most significant contribution to the law and the pursuit of justice in Canada. In my view, my most significant contribution to the law is, on the one hand, somewhat chimeric in presentation, but on the other, of incomparable significance.

In my view, as a career prosecutor, my greatest contribution to the law and the pursuit of justice in Canada is my strict adherence to and understanding of the role of a prosecutor, and my insistence on the rigorous application of the ethical embodiment of the Attorney General’s discretionary prosecutorial powers. I have made it a career goal to model these behaviors and to insist upon them from fellow prosecutors.

Rand J. describes the general role of Crown prosecutors in Boucher v. The Queen, [1955] SCR 16 at pp. 23-24 as oft quoted as follows:

  • It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a criminal conviction, it is to lay before a jury what the Crown considers to be credible evidence to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

As a starting consideration, the decision to prosecute or discontinue a prosecution is among the most significant decisions made by a prosecutor. Prosecutions that are ill founded, or which are contrary to the public interest, needlessly expose accused to embarrassment, expense, and jeopardy that extends beyond the criminal process. On the other hand, the failure to fearlessly prosecute a matter, even a difficult or complicated matter, can undermine public safety and the confidence the public has in the orderly administration of justice. There are two fundamental considerations when determining whether to prosecute. First, is the evidence sufficient to justify the commencement or continuation of the proceedings in the sense that there is a reasonable likelihood of conviction? Second, does the public interest require a prosecution? A prosecutor must be vigilant to avoid tunnel vision.

Entrusted with the same level of independence as the Attorney General, prosecutors in the exercise of the discretion given them must ensure that the exercise of that discretion is free from improper pressures or influence. Any interference with that independence constitutes a serious threat to the proper use of prosecutorial discretion and to the fair administration of justice. In particular, a prosecutor must always remember that close work with police and other investigators requires that we diligently function independently and objectively and free from police influence. This forms a critical part of a system of checks and balances. A similar statement might be made about victims and other interested parties. While a prosecutor has a duty to explain and inform victims broadly about the criminal proceedings; any decisions made in the course of a proceeding must necessarily be made independently of the wishes of a victim. Neither the most vengeful victim nor the most merciful can inform the course of a criminal prosecution.

Prosecutorial discretion is, however, not absolute. Discretion is guided by obligations and duties placed upon prosecutors by statute, common law, the Charter, and the ethical standards of the law society. The Attorney General, in addition, provides directions to prosecutors, typically in the form of guidelines. This responsibility is made greater as a judicial review of prosecutorial discretion is typically restricted to abuse of process. Prosecutors must, in essence, act judicially.

In my career, I have consistently modeled these principles in the conduct of prosecution business – both inside, and outside, of the courtroom. This I regard, as my most significant contribution to the law and pursuit of justice in Canada. These behaviors must be practiced, modeled and instructed. It guides all that I do, and all that I teach.  The guilty pleas in the death of the four police officers at Mayerthorpe to manslaughter occurred not because it was popular – they occurred because it was the legally just thing to do.

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

My background as a third-generation Canadian is decidedly generic in the sense that I cannot claim to have suffered either the historical or the contemporary institutional or systemic disadvantages experienced by many Canadians. My career as a criminal prosecutor, however, has provided me with tremendous insight into the challenges many Canadians face, and has only reinforced my belief that our diversity as Canadians represents our greatest strength.

I grew up in Edmonton, Alberta and attended the University of Alberta for my degrees.  As a young person, I admittedly had little experience with the cultural diversity of Canadian society. My experiences were limited both geographically and by the small enclaves of people that I considered my friends. 

I had parents, however, who stressed world and cultural acceptance and understanding.

As I transitioned into my work as a lawyer, I left Edmonton and made it a goal to work while experiencing the full geographical diversity of Alberta. Since the late 1980s I have lived variously in Lloydminster, Cold Lake, Lac La Biche, Peace River, Wetaskiwin and Lethbridge, Alberta. As a prosecutor, I have had visited almost every provincial courthouse in the province, and am very familiar with the geography of this province and the diversity of its peoples.

My work as a prosecutor has been decidedly enriched me in the context of the people I have met, and the lessons they have taught me. Criminal courtrooms contain the broadest array of people imaginable, from the affluent and educated, to the poor and unschooled. People facing criminal charges and their alleged victims come from every background imaginable, and that diversity reflects itself in race, culture and sexual orientation. This experience, although not unique to a prosecutor, has provided me with great insight into the many unique perspectives people hold. It is essential, as a judge, that the lens of judicial experience be guided by a life experience that includes more than the generic and amorphous perspectives of the hypothetical majority.

My experience, for example, has provided me with the opportunity to have extensive interaction with First Nations people across the province of Alberta. This has enriched me. Represented geographically, as only as a few of many examples, I have traveled to and extensively learned from the diverse and proud First Nations communities from  across Alberta: the Dene Tha First Nations at Assumption; the four great Cree Nations at Maskwacis; and the southern Blood Tribe at Standoff. I have spent extensive time at these and other similar locations. I have spoken to elders. I have attended traditional dances and powwows. I have attended smudge ceremonies. I have experienced a sweat lodge. In addition, I greatly benefited from successfully completing Aboriginal sensitivity training. 

I am acutely aware of the sad history of colonialism, displacement and residential schools that has devastated our Aboriginal communities. I have direct experience with seeing and hearing about the terrible human consequences of the unique systemic and background features that have afflicted many of our aboriginal people.

In this context, I have benefited by working with native counselling and with different aboriginal sentencing groups – most recently with the Kanai Peacekeeping Initiative on the Blood First Nations.

My prosecutorial work, as well, has given me wide exposure to the discrimination and suffering experienced by other visible minority groups. Prejudice, unfortunately, continues to exist in the sense that some people hold unsubstantiated, negative judgments of individuals or groups, based upon ethnicity, religion, race or sexual orientation. In my work as a prosecutor, I have sadly encountered such discrimination. I have prosecuted hate crimes. I have witnessed stereotypical or discriminatory thinking from both counsel and the courts. This awareness, and experience, equips me to identify and deal with the invidious aspects of such discrimination. At the same time, the exposure increases my compassion.

Women, sadly too, are often the recipients of discriminatory practices and belief structures in what sometimes remains a male dominated society. My perception is that this is decreasing over time, however, misogyny still exists – sadly, even amongst professionals. I am attuned to this problem, and am committed to gender equality.

The mentally ill form a large component of those who come into contact with the criminal justice system. My experiences as a prosecutor have opened my eyes to the challenges faced by the mentally ill; alternative sentencing models; and, the best practices to deal with those suffering from mental illness. In Lethbridge, we established a mental health diversion program wherein many offenders are referred for diversionary treatment instead of prosecution.

In that context, the courts continue to struggle, as well, to develop appropriate responses designed to respond to those afflicted with fetal alcohol spectrum disorder.  My experience as a prosecutor with FASD is vast. I have had occasion to lecture on the difficulty of appropriately sentencing those afflicted with FASD in the criminal justice system.

I am a strong believer that our Canadian diversity is our strength. I believe strongly in gender equality. A judge has a duty to move beyond stereotypical thinking, in an effort to truly understand the complex interplay of human diversity.

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

The question posed here is complex, as the role of a judge in a constitutional democracy may vary to some degree according to the nature of the case and the level of the particular court of assignment. 

At a very basic level, Canadian constitutional governance consists of three branches: legislative, executive and judicial. Each branch is separate from each other and independent. The Constitution, as expressed in the BNA Act of 1867 and the Constitution Acts of 1867 and 1982, set out the jurisdictional powers of Parliament and the legislatures to introduce and pass laws. These laws, however, are not immutable: the patriation of the Canadian constitution in 1982 brought about the entrenchment of the Charter of Rights and Freedoms, and the supremacy of the constitution under s. 52.   All laws passed by government are subject to the Charter, subject to justification under s. 1 of the Charter, or the ability (in some cases) to override declarations of invalidity under section 33. 

The courts, as established under s. 96 of the BNA Act, have constitutional independence, and inherent jurisdiction.

Judges are empowered to act, and must act, as a check on government to uphold the Canadian constitution. Admittedly, judges should not set legislative policy, act on political agendas, or seek to pass laws; however, the constitution requires and empowers judges to determine the constitutional validity of legislation when called upon to do so. To the extent that a law passes constitutional muster, a judge should refrain from making comment upon it.

At the trial level, the primary and usual function of a judge is to hear evidence, find facts, and apply those facts to the law. In the usual course, the judicial focus is on interpreting and applying the law to reflect legislative intention. In this regard, judges utilize well-established rules of statutory construction. As an adjunct to statutory law, judges in a constitutional democracy also act upon the evolving common law, which is a type of judicially made law. The common law, however, does not grow haphazardly at the whim of a particular judge, but is precedent-based. The common law requires that an inferior court follow the reasoning of a “binding” court – a principle known as stare decisis. The primary goal is predictability and stability in the law. Secondarily, the common law permits the law to grow and adapt in the absence of a comprehensive civil code.

As alluded to earlier, there are occasions when a judge is called upon to determine the constitutional validity of a law. This is the proper role of a judge as there can be no other lawful arbitrator to the dispute. This requirement is a significant function of the judicial branch in a constitutional democracy, and in particular operates as a constitutional “check” on the exercise of unconstitutional legislative or executive power. In some such cases, the challenge may involve a consideration of the parameters of the division of legislative powers between the federal and provincial governments, although that is not as common as it once was. In the majority of constitutional challenges, a judge will be asked to determine the validity of a law alleged to be constitutionally deficient under the Charter of Rights and Freedoms

To make a determination as to the validity of legislation under the Charter, a judge must approach the matter with deference to the legislative and executive branches of government. However, this deferential approach does not require the court to overlook a law that is offensive to Charter-protected rights. In fact, this judicial function is one of the hallmarks of a constitutional democracy.

As an example, the Supreme Court recently has heard a number of s. 12 challenges to mandatory minimum sentences contained in the Criminal Code. The Supreme Court of Canada heard one such challenge (R. v. Nur, 2015 SCC 15) in the context of the minimum sentences found in the Criminal Code in relation to s. 95(2)(a)(i) and (ii). This firearms offence prohibits a person to be in possession of a prohibited or restricted firearm without an authorization or a license to possess the firearm at the specific place in issue and a registration certificate for the firearm. The section mandated a minimum sentence of three years incarceration on a first offence, and five years on a second or subsequent offence.

The Supreme Court, in considering legislative intent, acknowledged the seriousness of firearm-related offence, and the validity of deterrence and public safety concerns as a starting point. The Court, however, declared the minimum sentence invalid as grossly disproportionate under s. 12 of the Charter. In doing so, the Court noted reasonable hypotheticals were foreseeable that would capture essentially licensing offences which involve “little or no moral fault and little or no danger to the public.” The minimum sentences were, therefore, unconstitutional.

In summary, therefore, the primary job of a judge of the court to which I am applying is to hear evidence and determine facts, and to apply those facts to the law in accordance with legislative intent. A second, no less important, function is to determine the validity of those very laws upon constitutional challenge.

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

Although it might seem self-evident, the audience for the decisions of a judge varies depending on the nature of the matter heard by the judge and the level of the court. An appellate court is concerned primarily with deciding whether trial judges have committed errors of law. The audience of an appellate court involves not only the litigation participants, but the trial judges entrusted with properly applying the law and legal principle. An appellate court seeks to encourage consistency in the jurisdiction, and from time to time may revisit its own rulings.

The audience of a trial court (for which I am applying) also varies from case to case, depending upon the nature of the factual and legal dispute. Trial judges, however, would do well to remember that beyond the litigant parties, the media and the public are attuned to the decisions by a judge, as reflected in the “open court” principle. Judges must guard, at all times, against intemperate, ill-conceived or stereotypical thinking. A recent sexual assault trial is illustrative. The public was rightly concerned when a judge expressed stereotypically false ideas about how the hypothetical sexual assault victim would behave when victimized. Arguably, a trial judge who takes the time to think about what he/she proposes to say publicly, has the opportunity to identify and correct his/her illogical or improper thought processes.

A judge must always remember that he/she is speaking publicly, inside and outside the court, as a member of the court. A judge must strive, at all times, to engender respect for the court and the administration of justice. The audience of a judge, especially in the days of social media, can be cross country in a moment.

Notwithstanding these cautions, some decisions of a judge will have a relatively limited audience. A decision, for example, concerning the custody and access of a child in a family law context will normally have a fairly limited audience. The law is well settled, and the factual determinations as to the best interests of the child are a matter of primary concern to the parties. Similarly, various types of civil litigation such as that involving a contractual dispute, involve primarily the litigant parties as the audience.

Some types of litigation by their nature will have a broader audience. A class action suit involving a product liability concern may have a large interested audience. Some intellectual property litigation can similarly involve a large and diverse audience.

A superior court judge must remember that his/her decisions may have broader implications and a correspondingly large audience. For example, a judge of the Court of Queen’s Bench in Alberta may be called upon to make determinations as to the constitutional validity of legislation, and particularly in relation to the provisions of the Criminal Code. A declaration of invalidity made by a Queen’s Bench judge is binding upon the provincial court judges of Alberta, and the decision by way of stare decisis speaks directly to them. A finding of invalidity also speaks to the legislative body that passed the law. The decision to declare a law as invalid invites an audience of other judges of the Court of Queen’s Bench, and ultimately may be appealed to the Court of Appeal of Alberta.

A Court of Queen’s Bench [judge] must remain cognizant of the binding nature of some decisions made by him/her on provincial court judges. In addition, when sitting as summary conviction appeal judge, a judge of the Court of Queen’s Bench exercises the powers of an appellate court in the manner of making determinations as to errors in law or principle. The audience necessarily is the particular judge appealed from, and other judges of the provincial court. The summary conviction judge always speaks to the public and all other judges. With leave, the matter could become the subject of an appeal to the Court of Appeal of Alberta.

The audience for public or administrative law issues can cover a very wide spectrum. In many cases, a judicial review is held to determine whether a legislatively constituted Board made errors of jurisdiction or other reviewable errors of law. Some of these issues can be very narrow and of concern only to the immediate parties. In other cases, such as for example the rezoning of property, or the granting of development permits, the implications and audience can be much wider.

Judges must always remember that there is a duty to give reasons that permit meaningful appellate review. The reasons must sufficiently inform the parties of the reasons for the decision, and must reasonably enable an appellate court to review the matter to determine if any reviewable errors have occurred.

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.

A judge must bring the highest standards of integrity in his personal and professional life. My concern with ethics and ethical decision-making has always brought this concept into sharp focus for me. A good reputation in the legal community takes a lifetime to build, but can be destroyed in one sorry moment. I have always aimed to be fair, honest and impeccably ethical. As a lawyer, I have made it a priority to hold the courts in the highest of esteem, and to model behaviour that would seek to encourage respect for the administration of justice.

A judge must be knowledgeable about the law. My acknowledged expertise is in the criminal law, however, I have excellent research skills and an ability to read, understand and assimilate information. I do not underestimate the work involved in acquiring expertise in other areas of the law other than criminal; however, I am certain that I can acquire expertise in many areas of the law with determined work.

Judges should be able to write decisions that are in plain language and are clear and cogent. In my respectful opinion, I am more than qualified to express myself both orally and in writing.

A judge should be fair, open-minded and thoughtful. My experience as a prosecutor has left me with a deep sense of open-minded impartiality. I am acutely aware that appearances can be deceiving and that an “open and shut” case can often become a close call. A judge must refrain from pre-judging a matter and must wait until all the evidence and argument is heard. Pre-judging is the enemy of justice. A judge must necessarily assess credibility with his/her personal experiences and knowledge, but must guard against the distinction between common sense inferences drawn from matters tendered in evidence, and judicial notice of facts not tendered into evidence. As a judge, I would remind myself of the distinction between findings of fact based upon viewing the evidence through the lens of judicial experience, and the reaching of a judicial conclusion based solely upon my perception of social context using only my untested personal experiences. I am acutely aware that fact-finding based upon untested generalities may amount to fact-finding based upon stereotyping.

A judge must be a good listener. I have learned that this is a critical in the context of making any proper decision. I am a good listener. Judges must, however, be able to ask questions that enable them to get to the nub of an issue. A judge that can both listen and ask the right questions is a good judge.

A judge must be courteous and respectful in the courtroom to engender respect for the administration of justice. A good judge will understand how a judicial decision will affect the people appearing before him. A judge must lead by example. At the same time, a judge must be able to retain control of the courtroom, and at certain times, it may necessary to manage prolixity in the proceedings; to curb disrespectful behavior; or to focus the issues. My many years as a trial lawyer have given me the opportunity to observe many excellent judges. That experience provides me with the necessary skills.

A judge has the responsibility to give a judgment that based on the correct application of the law to the facts as found. The Supreme Court of Canada in R. v. Sheppard, [2002] 1 SCR 869, has comprehensively reviewed the law on the duty of a judge to give reasons. My work as both trial and appellate counsel has equipped me for this job. The reasons permit the parties to understand why and how a decision has been made. They permit meaningful appellate review. The parties deserve no less.

Courage and integrity. Legal courage is the willingness to do what the law requires a judge to do, even if it is not the easiest, or the most popular course of action. Integrity is not being influenced by the identity, race, gender, political status, wealth and sexual orientation of the parties or lawyers appearing. I possess these qualities.

Humility. An arrogant judge is not a good judge. I believe I am humble. The best judges are sensitive to people and realize that a courtroom is a stressful and alien environment of the uninitiated. A judge ought to be sensitive to the prospective of others. A judge, for example, must be sensitive to how delays in the system may affect witnesses and victims. Arrogance, above all, stops a judge from listening on the basis that he/she always knows better. That is a particular fault.

A commitment to justice. A judge must be committed to doing justice. Though all judges are bound to apply the law, the best judges do so with a constant eye towards fairness in the process. A judge must strive to understand the myriad of faces that come before him, and the diverse backgrounds of all Canadians. Justice can never be static; it must always strive to improve. I understand and am committed to these principles.

Prosecutors as quasi-judicial officers must act in accordance with all of these principles. I have been doing so at a high level for years. I believe that I qualify not only to be a judge, but a judge that exceeds all expectations. My background leaves me well acquainted with the conduct of trials and the principles of evidence. I have great experience in the judgment of the credibility of witnesses. This is a skill that is not easily and quickly acquired.

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.

My grandparents were all immigrants to Canada, and came to this country with limited education and money. They were effectively poor, and strove for a better life in a country of opportunity. They worked hard. My German, paternal grandfather worked for a time in the coal mines near Wayne, Alberta. This incredible work ethic was passed down to my father, who passed those values down to me. I have not forgotten the value of hard work. Hard work brings its own rewards, and I would bring that work ethic with me to the work of a judge.

My life is grounded in my marriage, and my children, and our activities together. I make the time for family. I am committed to exercise, and make a 5 a.m. YMCA routine part of my commitment to health and wellness. I am fit and healthy.

My father did not finish high school, but understood the value of an education. From the time that I was young, he never asked me if I want to go to university; rather, he demanded that I do so. I was the first in the family to attend and receive a higher education. On the other hand, my father is one of the smartest people I know, and no one should be judged by the level of education they achieved.

From the time I was very young, I knew that I wanted to be a lawyer. I never considered any other career. It was my sense that in the pursuit of this profession, I had a real opportunity to help people despite how disingenuous that might sound. My career as a prosecutor has given me the satisfaction of helping people and contributing to society.

My work as a prosecutor has humbled me. I see great value in all people, and fully embrace our individual differences. I have always thought that you should be able to learn something from everyone you encounter. Life has not proved this musing to be wrong.

I have a great interest in travel; both, in Canada, and overseas. I have attempted to see as many places as time and money might permit. In my travels, I have consumed the history and architecture of the places I visit; but, more than anything else – I am interested in the people.

It is my belief that true wisdom is acquired from the wide sharing of life experiences, culture and beliefs. My travels have permitted me to acquire some “bits” of wisdom.  There is wisdom and understanding found everywhere and in all peoples.

Prejudice is often borne of fear and ignorance. My travels have taught me that fear and loathing must be replaced with tolerance and understanding. No one before the court should ever feel that a judge is predisposed against him or her because of nationality, race, sex, sexual orientation or other extraneous considerations. A judge who harbors these discriminatory biases is not capable of being a judge at all.

It is my belief that my traveling experiences will equip me to best ensure that Canadians of all backgrounds will see their faces and life experiences reflected in mine.


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