The Honourable Barry M. Tobin’s Questionnaire
Under the new judicial application process introduced by the Minister of Justice on October 20, 2016, any interested and qualified Canadian lawyer or judge may apply for federal judicial 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 may be made available to the public, with their consent, should they be appointed to the bench. The information is published as it was submitted by the candidates at the time they applied, subject to editing where necessary for privacy reasons.
Below are Parts 5, 6, 7, and 11 of the questionnaire completed by the Honourable Barry M. Tobin.
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:
- University of Ottawa; from 1974 to 1977; LL.B. (with honours) 1977.
- Dalhousie University; from 1971 to 1974; B.A. (Economics) 1974.
Since my appointment to Ontario Court of Justice, I attended the continuing education programs provided by the Ontario Court of Justice including:
- Annual Family Law Conference – 2010-2016
- Judicial Development Institute (annually – family law) – 2010-2016
- Annual Ontario Court of Justice Conference (annually – criminal law) – 2010-2016
- West Regional Conference (annually - criminal law) – 2009-2015
I also attended National Judicial Institute (NJI) programs: Judicial Settlement Conference (2013) and The Art of Triage (2015).
Challenges in Child Protection Cases: on-line NJI course (2015).
While in private practice, I attended many courses offered by the Canadian Bar Association, Law Society of Upper Canada (LSUC) and Advocates Society in Family Law and Civil Litigation, including:
- Family Law:
- Financial Evidence and Valuation in Family Law;
- Their Pension, Your Deductible;
- Valuing Professional Practices;
- Family Law Settlements and How to Structure Them;
- Pensions and the Family Law Act;
- Family Law Gets Involved
- The Family Law Act and the Divorce Act;
- Everything Old is New Again;
- Litigation Remedies for Victims of Family Violence;
- Child Support Revisited;
- Child Support Guidelines;
- The Middlesex Family Lawyers Association Annual Conferences;
- Pension Battle Lines;
- OBA Institute 2005;
- Six Minute Family Law Lawyer 2004, 2005, 2006, 2007 and 2008;
- Six Minute Family Court Judge;
- Spousal Support Advisory Guidelines;
- The Family Law Rules;
- Estate Essentials for Family Lawyers;
- LSUC Special Lectures 2006 (Family Law);
- Conduct of a Family Law Trial
- Family Law Dilemmas in Evidence;
- The Family Law Summit (2007);
- New Rules of Civil Procedure;
- Construction Lien Act;
- Libel Practice;
- The Art of Cross-Examination;
- Expert Evidence Advocates Society (London Court House Series);
- After the Cost Grid – What’s Next?;
- James McWhinney – Advocacy.
Also while in private practice:
- Member of a group of family law lawyers who met to review and discuss current issues in family law and in the practice of family law.
- Attended and was a regular presenter of case law at the monthly meetings of the Middlesex Family Law Association.
- Subscribed to a number of publications of interest to family law lawyers in order to keep abreast of the current state of the law and consider emerging trends.
- Mediation training in 1993 through London Custody and Access Project – 40-hour course.
- Family Law Arbitration Training – 40-hour course (November and December, 2007) offered by Lorne Wolfson and Barbara Landau. This course provided the certification required to act as a Family Arbitrator.
- Domestic Violence Training – Spring 2008: program presented by Dr. Peter Jaffe and Alf Mamo; this was a requirement to be a Family Arbitrator.
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:
Since appointment to Ontario Court of Justice:
- October 2009 – present: I sit as a Judge of the Ontario Court of Justice in Windsor, Ontario. My main area of adjudication and conferencing is Family Law, including child welfare matters, custody, access, child and spousal support and enforcement proceedings. I also sit on Criminal Law matters.
Legal practice work experience:
May 2002 – October 2009: In May 2002, my law firm (Marcus, Tobin) merged with Brown Beattie O’Donovan, where I continued my family law and civil litigation practice.
From the date of my call to the Bar in 1979 until May, 2002, I practised in partnership in the law firm of Marcus, Tobin. Initially, I carried on a general practice and handled criminal law, family law, civil litigation, real estate and estate matters, including preparation of wills and powers of attorney. After the first few years, I began handling primarily family and civil litigation matters.
My family law experience included representing people in the negotiation and drafting of all types of Domestic Agreements, in contested family law proceedings in Provincial Court and Superior Court and arguing appeals in the Superior Court, Divisional Court and the Court of Appeal for Ontario, including an important post-Miglin case and an imputing income case. I was a member of the Legal Aid Panel and Lawyer Referral Service accepting family law cases.
My civil experience included representing people and companies in personal injury cases, construction lien claims, estate litigation, contract disputes, real estate disputes and employment matters. I have appeared in all levels of Courts in Ontario on these civil matters.
I worked with junior lawyers for a number of years. They helped me in my practice. I was able to act as a teacher, sharing my experiences with them in matters of law, practice and ethics. This was a rewarding part of my legal experience.
I was on the panel of lawyers who acted as agents for the Office of the Children’s Lawyer and have represented children in child welfare and custody and access disputes (April, 1995).
I participated in the family law mediation process as counsel and as Mediator. I also acted as a mediator and arbitrator and in the mediation/arbitration (med/arb) process. In the last 2 years prior to my appointment, I was developing a mediation and arbitration practice in the area of Family Law.
Non-Legal Work Experience:
- 1972 – 1974, York Structural Steel, Fredericton, New Brunswick; labourer – summer employment.
- 1975, Canadian Technical Tape Ltd., Montréal, Québec; labourer – summer employment
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.
Since Judicial Appointment:
- Action Committee on Access to Justice and Civil and Family Matters (“Action Committee”) chaired by Justice Cromwell of the Supreme Court of Canada: Member of the Family Justice Working Group (“FJWG”) (2011 -2013). The FJWG was one of four working groups formed to identify areas of priority and recommendations for action by the Action Committee. The FJWG delivered a report which identified reasons why problems with access to justice, in the family law context, continue despite many sound reports and progressive programs over the last 25 years. We called this an implementation gap. A number of reasoned recommendations were made by the FJWG to bridge this implementation gap. Many of those recommendations were included in the final report of the Action Committee.
- Local Administrative Justice – Family at Windsor since 2013.
- Ontario Judicial Council: appointed by Chief Justice as a Temporary Member since September 2013.
- Chair of Windsor Ontario Court of Justice Family Strategic Planning Committee. Members include judiciary, court administration, court clerks and counter clerks.
- Member of the Windsor Child Protection Bench Bar Subcommittee. Members include judiciary, society counsel (in-house and outside), parents’ counsel and Children’s Lawyer agent.
- Ontario Court of Justice – Family Education Committee: Member, 2012 to present; including participating on panels.
- Mediation and Mandatory Information Program: Ontario Court of Justice representative on the Windsor, Ontario Implementation Committee and ongoing member of the Windsor Advisory Committee.
- Member Ontario Family Law Rules Committee; appointed 2015.
While in private practice:
Regularly presented “Case of the Month” at the meetings of the Middlesex Family Law Association, and gave presentations at its 2004, 2005, 2006, 2007, 2008 and 2009 conferences.
Member of the Committee of the Middlesex Family Lawyers that developed and presented a conference on Family Law and Practice. We arranged for speakers who dealt with the problems associated with family law practice and with practice management techniques (1994).
Co-chaired a group of lawyers who reviewed the proposed Family Law Rules for the purpose of making a submission to the Rules Committee on behalf of the Middlesex Family Law Association. (1996).
In November 1994, I was appointed a Deputy Judge of the Small Claims Court. I was re-appointed every three years until my appointment to the Ontario Court of Justice. I sat a number of days each year and presided at trials, motions, pre-trials and Judgment Summons hearings.
Member of the Office of the Children’s Lawyer panel for Middlesex County. I represented children in family law proceedings from April 1995.
Member of the Family Court Community Liaison Committee for Middlesex County from September 2002 to my appointment to the Ontario Court of Justice in 2009.
Pro Bono Activities:
As a part of my practice, I would represent people on a pro bono basis. I considered this part of my responsibility as counsel.
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).
- University of Windsor Law School: Co-Instructor, Child Protection Law – Winter Term 2014.
- Ontario Court of Justice Family Education Committee: Member, 2012 to present; including participating on panels.
- Association of Family and Conciliation Courts (AFCC) International Annual Conference: Speaker on access to justice issues arising from Family Justice Working Group Report, May 2014.
- NJI Family Law and Evidence Program: Speaker on access to justice issues arising from the Family Justice Working Group Report, February 2014.
- AFCC Ontario Chapter – Family Justice Reform Colloquium: Invited to participate: November 2013
- University of Windsor Law School: Supervision of a third-year law student enrolled in the family law clerkship course. It is a half year course, where the student spends one day each week with me as a clerk: each term since 2011.
- University of Ottawa Law School: Lecture to third-year family law class on “The Intersection of Criminal and Family Law” with Justice M. Hoffman, October 2012 and November 2013.
- Carleton County Law Association: Presentation with Justice M. Hoffman on “The Intersection of Criminal and Family Law”, May 2015.
- AFCC Ontario Chapter Annual Conference October 2013: Delivered paper "Being Engaged and Remaining Neutral" on panel dealing with Self Represented Litigants.
- Middlesex Family Lawyers Association Annual Conference October 2013: Speaker on the report of the Family Justice Working Group.
- Canadian Bar Association Access to Justice Conference May 2013: Panel Member speaking on access to justice issues arising from the Family Justice Working Group Report.
- Legal Aid Ontario Provincial Training Program 2013, 2014 and 2016: Speaker on Child Protection Law and Practice.
- Canadian Pediatric Society 2011 annual convention: Speaker on Children, Pediatricians and the Law.
- Intensive Child Protection Training program: Co-chair of a four-day training program for lawyers intending to act in child protection cases, 2012 (Windsor) and instructor in 2015.
- LSUC Unbundling Family Law Services: Panel member, September 2015.
- Alternative Dispute Resolution in Child Protection Proceedings conference: delivered speech to conference participants on the benefits of alternative dispute resolution: Fall 2010.
While in private practice:
- Presenter at the CBAO Continuing Education Program Seminar called “Excelling at Articles” (1998 and 2002).
- Seminar instructor in the family law section of the Bar Admission course held in London from 1993 to 2009.
Community and Civic Activities:
List all organizations of which you are a member and any offices held with dates.
- Member (April 2003 – September 2009) and chair (2008-2009) of Merrymount Children’s Centre. This organization, an accredited children’s mental health centre, provides support to families in need through education and prevention programs such as family support, teen outreach and supervised access. It is also designated as an Ontario Early Years Centre.
- Executive member of the Middlesex Family Lawyers Association from 1989 until 1992. I re-joined the executive from August 1997 to 1999. Executive members help organize meetings on topics of interest to family law lawyers. These topics included substantive and practice issues as well as non-legal concerns, such as the practical assistance a lawyer can provide in cases of child kidnapping and wife assault. The Middlesex Family Lawyers Association also organizes annual conferences on family law topics. I was on the planning committee.
- Member of the Board of Changing Ways, a member agency of the London Coordinating Committee to End Woman Abuse. Its mandate is to provide counselling to men to help them eliminate abusive behaviour in their relationships (1996-1999).
- Member of advisory group of “In the Middle”. This was a program designed to educate parents about the effects of separation on their children. Also, I was a regular presenter at the education program.
- From 1982 until 1989, I was a board member, executive member (1984-1989) and chair (1987-1988) of the London Community Hebrew Day School. I was part of the Board which implemented policies and programs to provide students with an academically sound curriculum in a nurturing environment.
- From 1989 until 2004, I was a board member of Or Shalom Synagogue in London. From 1991 until 2002, I was an executive member, and president from 1989 to 2000. I had executive responsibilities in a number of areas including programming, youth and education. I was responsible for all aspects of the afternoon heritage program. I was also responsible for youth programming for children 3 1/2 to 18 years of age. As vice president of the organization, I was involved in a leadership role in matters concerning policy, finance and administration. During the 2 years I was president, I oversaw all aspects of the synagogue.
Part 11 – The Role of the Judiciary in Canada’s Legal System
The Government of Canada seeks to appoint judges with a deep understanding of the judicial role in Canada. In order to provide a more complete basis for evaluation, candidates are asked to offer their insight into broader issues concerning the judiciary and Canada’s legal system. For each of the following questions, please provide answers of between 750 and 1000 words.
1. What would you regard as your most significant contribution to the law and the pursuit of justice in Canada?
In addition to my seven years as a judge of the Ontario Court of Justice, I regard my participation in the Family Justice Working Group (FJWG) of the Action Committee on Access to Justice in Civil and Family Matters (Action Committee) to be my most significant contribution to the law and pursuit of justice in Canada.
For some time, there has been a serious problem with access to justice in Canada. Costs, delay, and complexity are some of the reasons for the inability of many Canadians to use their legal rights fully or, in some cases, even access them. Culture is another reason. The magnitude of the problem in the family law area is significant because of the number of family breakdowns. The research disclosed that more Canadians come into contact with the justice system through family law than any other area.
At the request of the then Chief Justice of the Ontario Court of Justice, I was appointed as a member of the Family Justice Working Group. This was in 2011.
To give some context and history, the Action Committee had its origin in the 2008 invitation of Chief Justice McLachlin to government, the bar and judiciary to consider the urgent problem of diminishing access to justice in civil and family matters. The Action Committee was struck and chaired by Justice Cromwell. It was described as a broadly representative group of leaders in the field of civil and family justice. It provided a forum for the bar, government and judiciary to consider access to justice issues. To help it, four working groups were tasked with providing suggestions on how best to address the essential mandate of the Action Committee – where can reform happen now. One of the working groups was the FJWG.
The FJWG consisted of 7 people: a Superior Court judge, a provincially appointed judge (me), two academics, a family law lawyer in private practice and one from government and a member of the public legal education sector. We came from across the country – from British Columbia to Nova Scotia – with our different experiences and views, and worked together for about 18 months.
Our task was to bring forward recommendations to improve access to justice in the family justice system. Though the term “Access to Justice” does not have a definition agreed to by all, we used the definition provided by Justice Cromwell, which was “members of society having knowledge, resources and services to deal effectively with family matters […]”. We looked beyond a Court-only process. Access to justice encompassed courts and out-of-court services. This assisted us in understanding what is meant by a family justice system. It includes courts, government, legal aid, professionals (lawyers, judges, mediators and health care professionals), as well as non-governmental agencies and service providers who give advice and assistance.
We reached a consensus on the principles that would apply in defining change and the process for doing so. The guiding principles that we relied upon included minimizing conflict, collaboration, using multidisciplinary services and acting in a proportional manner.
As part of our work, we examined the many reports and studies that had been prepared over the past number of years. Since 1992, there had been 16 reports in British Columbia alone. The Law Commission of Ontario had been engaged in this project since 2009, and had produced a number of reports. We examined the models found in other jurisdictions.
We also recognized the significant and constructive changes to the way family law has been practised over the last 25 years. These include the structure of the court. Some areas have a Unified Family Court. In Ontario, there is one set of rules for all family law cases. Mediation and arbitration is commonplace in many jurisdictions. There is much collaboration with health care professionals, such as psychologists and social workers, and there has been integration into the legal system of findings from the social sciences.
With the knowledge of what needs to be done, we examined why things have not significantly improved. We identified the gap between our knowledge and what should be done – and why things have not significantly improved – as the “implementation gap.” One of the reasons for this implementation gap is that there are limited resources available for the family justice system. The culture of the justice system was also identified as a cause. There has been an incomplete embrace of non-adversarial dispute resolution processes. Interestingly, about a year after the release of our report, Justice Karakatsanis of the Supreme Court of Canada (in Hryniak v. Mauldin 2014 SCC 7) sounded the same concerns when she wrote in a case dealing with summary judgments: “Ensuring access to justice is the greatest challenge to the rule of law in Canada today […] Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system […]”.
In April 2013, our working group released its report, titled Meaningful Change for Family Justice: Beyond Wise Words. The report contained many recommendations to improve access to justice in family law. This report was considered, and included to a great extent, in the final report of the Action Committee, titled A Roadmap for Change.
Following the release of the working group’s report, I spoke at a number of venues about the report and our recommendations. The report has had an impact. Stakeholders from across the country have considered the report and slowly are implementing recommendations geared to local needs and circumstances. I remember being told by one judge, who heads a family law division, that he brought the report to all of his meetings to compare what was being proposed against what we recommended. This report has given a roadmap for increased access to justice in family law that is being followed.
It has made a difference.
That is why I consider my active participation on the FJWG as my most significant contribution to the law and pursuit of justice in Canada, along with my time on the bench as a judge of the OCJ.
2. How has your experience provided you with insight into the variety and diversity of Canadians and their unique perspectives?
In my time at the bar and on the bench, now a total of 37 years, I learned that people’s experiences, culture and ethnicity affect their perception of what is right or just. They affect how a person approaches interactions with others and solutions to problems. I also have learned that even within different cultures and ethnic groups there are differences.
I placed a great value on my ability to listen to clients when I was in practice, and now as a judge to litigants who appear before me. I did not and do not prejudge them. I also know that it is important not to impose my values upon the people who appear before me. In cases dealing with children especially, it is important not to judge parents, whatever their background and circumstances, “by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a poor parent […] provided that the standard used is not contrary to the child's best interests.” This is a principle of law that I apply in cases dealing with children. It is not necessarily in a child’s best interests to be placed with a person who can provide a better socioeconomic life than the other.
While in practice, I listened so that I could propose solutions or advance arguments that took into account what my client had experienced and what the law allowed. This experience serves me well as a judge. In conferences, I can propose solutions that take into account the unique perspectives of the people before me. My additional training and experience as a mediator has helped me understand how to uncover interests and concerns that may not be easily expressed by the persons appearing in court.
An aspect of the diversity of Canadians that I have also experienced is that body language and responses to social situations can vary depending upon the person’s culture and upbringing – even between different generations.
The population of the city where I now sit, Windsor, is made up of many different ethnic, cultural and religious groups. Members of these various groups appear before me. My experience has taught me that it is important to acknowledge the validity of a person’s uniqueness. All persons must feel and in fact be heard in the manner that is unique to them.
Throughout my life, I have met and interacted with persons of many different backgrounds. I have lived in four Canadian provinces: Quebec, Ontario, Nova Scotia and New Brunswick. I have also had the opportunity to travel throughout the country. Where I lived and traveled gave me the opportunity to experience the circumstances and points of view of many different people.
For many years, I was a lawyer agent for the Office of the Children's Lawyer. As part of my responsibility representing children in custody and access and child protection cases, I would go to the homes of the children and their parents. I saw families who were in crisis for many different reasons, including poverty, domestic violence, drug abuse and mental health problems, in their homes and in their community. On occasion, children were caught in the middle of high-conflict separations. These experiences taught me the importance of affording dignity, respect and especially patience to persons regardless of their circumstances. I draw on these legal and life experiences in my judicial role.
As part of my judicial responsibilities, I preside over child protection cases that on occasion involve First Nations families. The legislation that governs this type of case contains a number of provisions that require me to make inquiries and understand the unique circumstances facing First Nation children, their families and communities. I endeavored to educate myself about the unique historical and present circumstances and perspectives that pertain to First Nation families and communities. I have done this through reading, and speaking with others with more experience. For example, I arranged a meeting of my colleagues with members of the local Friendship Center to seek advice on how our court can be more sensitive and effective when these cases are before us, and I attended continuing education sessions offered by the Ontario Court of Justice, including one on the Truth and Reconciliation Commission of Canada.
When deciding issues of custody or access, I will receive expert reports dealing with parental ability, and the needs of the children. I must make sure that the expert has taken into account cultural diversity in preparing his or her report.
I strive to remain current and understand social and legal issues. This allows me to be sensitive to those I meet and interact with on the bench. My awareness of social issues and sensitivity to those I acted for and against as counsel, and now as a judge, has helped me understand and allow people to “tell their stories”.
In my community and legal involvement, I worked with and helped persons from diverse cultures, ethnic and economic backgrounds, and those with physical and mental health challenges. They reminded me to always keep an open mind and to consider a wide range of possibilities.
My own experience of growing up Jewish in a small town – as someone different – made me aware of what it can feel like to be an “other”.
My parents taught me – and my wife and I taught our children – that an essential element of one's character must be respecting others and oneself. It is this value that informs my insight into, and experience and acceptance of, the variety and diversity of Canadians and their unique perspectives.
3. Describe the appropriate role of a judge in a constitutional democracy.
At its essence, the appropriate role of a trial judge in a constitutional democracy is to resolve disputes by applying the applicable law to the facts, as found by the court.
The context for this role is found within the meaning of constitutional democracy. In Canada, the authority of government is constitutional. Our government includes the Legislative, Executive and Judicial branches. Our Constitution defines the authority of each branch. Parliament has responsibility and authority in matters set out in section 91, and provincial legislatures in matters set out in section 92. The Constitution Act of 1867 and 1982 gives both the power to pass laws within their respective areas of responsibility and subject to the Charter of Rights and Freedoms. The third branch, the Judiciary, is established under section 96. The ambit and limits of judicial authority are derived from our Constitution.
Judges are to decide the issues that come before them within the law. Judges decide based on the Constitution, and this includes the Charter. Sometimes courts are asked to rule on the scope of each jurisdiction's legislative powers. At other times, judges are called upon to decide whether legislation violates the Charter. This imposes upon judges the responsibility of defining the ambit of constitutional rights. And still, at other times, courts exercise a supervisory role over administrative tribunals. Canadians expect that all branches of government act within the limits or scope of their constitutional authority. In cases concerning the limits of constitutional authority, judges decide based upon their interpretation of the law given by the Legislative or Executive branch, and again, subject to the Charter. This interpretive function is informed by the way a case is pleaded and the evidence that is presented. When deciding cases involving the boundaries or limits of legislative authority, judges are to decide with deference when policy decisions are in issue.
When judges apply the law within the limits of their jurisdiction, people will readily respect the decision made. Order and respect for the rule of law, including our Constitution, is promoted.
As stated above, the role of a judge on a motion or a trial is to resolve the dispute that is before the court. The judge must do this, having found the facts of the case presented, and applying them to the applicable law. A trial judge is to apply the law as prescribed in legislation or established by previously decided case law. In unique or new circumstances, the role of the judge is to interpret the law based on established principles of interpretation.
A judge’s role now also includes managing cases to ensure that they are processed through the court system in an efficient, timely and cost-effective manner. This responsibility is necessary to ensure that all have access to justice to the fullest extent possible. The rules of court provide for the mechanisms of case management. The Cromwell Report of October 2013 recognized this problem, that is, that the civil and family justice system is complex, slow and expensive. There must be processes in place that allow for outcomes that are proportional to the problems. One of its recommendations was that case management be promoted and available in all appropriate cases. It is important that judges embrace this role.
In many family and civil law cases, litigants act in person. The role of the judge in this situation is to ensure that litigants have the opportunity to be heard in a procedurally flexible but fair manner.
In criminal law cases, it is often the role of the judge to scrutinize and consider the acceptable scope and limits of police or other state authorities’ power in light of the legal rights provided for in the Charter.
I take the phrase “role of the judiciary in a constitutional democracy” in its most expansive meaning. Another role of the judge is always to act in a manner that promotes respect for the administration of justice. This requires judges to act in a manner that does not call into question their impartiality, independence or integrity. As was stated by the Supreme Court of Canada in Therrien v. Minister of Justice et al.,  2 S. C. R. 3 at 109 to 111, judges must act in a manner that maintains confidence on the part of the public in its justice system to ensure its effectiveness. Judges are neutral and independent. They are not partisan. They should not set social agendas or impose their own personal views on society.
The judge’s role in a constitutional democracy is to support the rule of law.
4. Who is the audience for decisions rendered by the court(s) to which you are applying?
The primary audience for a decision of a court of first instance is the defeated litigant and his or her counsel. Reasons for judgment following a trial or motion must explain to the party who was not successful that his or her case and arguments were fairly considered and understood. In this way, the losing party will know from a transparent and accountable decision that he or she was heard. It is very important for the unsuccessful litigant to know that they were treated fairly and had a proper hearing. This is almost as important to the litigant as the outcome of the case. Clear and full reasons for judgment are a significant tool in ensuring respect for the court system, even by those not ultimately successful.
The successful litigant and his or her counsel are also an audience for a decision. This litigant, like the unsuccessful one, will know that their dispute has ended, and that is the primary purpose of the decision – to end the litigation. If the parties and their lawyers are satisfied that the judge understood and fairly considered the case and arrived at a correct decision, it is likely that the case will be at an end. Reasons for judgment demonstrate that a case was not resolved in an arbitrary manner. The successful litigant will also understand the limits or extent of their success in court. Every argument may not be successful. The decision will affect the basis for entitlement to costs and the possible amount of reimbursement that will be ordered.
The trial or motions judge must also bear in mind that the decision may be subject to an appeal. Another audience, therefore, must be the Appeal Court. The Appeal Court should have a clear understanding as to the facts found, how credibility issues were resolved and what law was applied in coming to the decision. The clearer the reasoning, the more likely the decision will be upheld.
Members of the bar and academic writers are also an audience for decisions of a judge at first instance. Decisions can give guidance to others and affect the outcome of other cases. Lawyers will be aware of judicial reasoning and facts that are important to be proved in particular cases. Well-reasoned decisions, even in fact specific cases, can be influential in how subsequent and similar cases are presented and possibly settled. This provides litigants with potentially less expensive and proportionate access to justice. Academic writers are able to use decisions when preparing articles about the case decided or issues being considered. Nuances and differences can be examined and explained, and lead to a greater understanding of the law. Thoughtful reasons for judgment are important for this purpose. With predictability, fewer cases will need to reach the courtroom door.
Reasons for judgment rendered can also be important to government and legislators and others who administer and enforce the law. This could include police officers who enforce the criminal law, persons who administer and enforce regulations at any level of government, and any other agent of the state, including children’s aid societies. In short, any person who is bound by the Charter of Rights and Freedoms is a potential audience. Government and legislators can identify problems arising from legislation, gaps in the law and areas where social issues should be addressed by them. At first instance, decisions under the Charter, for example, may also identify the limits of legislative power, and improper and proper police procedures.
The public and media will on some occasions be very interested in the outcome of cases and the reasons which explain why decisions were reached, especially in criminal cases that have achieved some notoriety. One only has to read a newspaper to find stories about court cases that are of local and national interest. Two recent examples are the decisions rendered by trial judges in the Duffy and Ghomeshi cases. Both decisions informed the public, in an interesting and fact-specific manner, about how the criminal law works in Canada and what everyone may expect when involved in the criminal justice system.
As a judge of the Provincial Court, I have come to learn that another audience not often considered, but which is of importance, is the trial judge who wrote the decision. Giving reasons for judgment demands judicial honesty, by submitting them to scrutiny by all of the other audiences identified. Knowing that there are a number of audiences ensures that reasons are accessible, especially to the litigants, and that the reasoning is transparent.
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.
The most significant experience I have that would assist me in discharging the responsibilities of a federally appointed judge is the seven years I have served as a judge of the Ontario Court of Justice.
Judges must possess the highest level of professional competency and integrity in order to carry out their role effectively. The following are the attributes that equip me in my role as a judge.
One’s character is best judged by actions and reputation. While in practice, I did so in a fair-minded and professional manner. I was mindful always of being an officer of the court and believed that it was important to treat others with respect, patience and politeness – both in public and in private. I could be firm, yet tactful, when necessary. I believe that if asked, members of the London and area legal community (including lawyers, judges and court staff) would confirm these attributes, and most importantly, that I could be trusted.
These same characteristics were brought by me to my role as a judge on the Ontario Court of Justice. I preside in a neutral, independent and respectful manner. I have the temperament (and practise the techniques) to keep appropriate decorum in the courtroom. I have experience in presiding in circumstances where one or more litigants are acting in person. I have spoken and written about the obligations of a judge to all litigants in a case where one or more are acting in person. I endeavor to give reasons that are transparent, in that they demonstrate to the parties that I have understood and considered their case and decided in accordance with articulated legal principles.
Another aspect of my character that is of importance in discharging my judicial role responsibly is that I recognize that while we must take the law and the position of judge seriously, both in and out of court, we must not take ourselves too seriously.
As can be seen in the activities I engaged in prior to my appointment, and the writing and speaking I have done since, I very much enjoy analyzing and developing legal arguments. I ensure that I keep abreast of developments in the law and enjoy the collegiality of discussing current and emerging issues with my colleagues. I have shared my interest in the law and things legal by writing articles, teaching at the bar admission course, mentoring, giving presentations to my peers, when I was in practice, and now as a judge. When in practice, lawyers would call me regularly for advice and to provide referrals.
My efforts to remain current and to understand social and legal issues help me remain sensitive to the persons who come before me. While in practice, I used this knowledge to help me understand the legal and non-legal issues associated with the cases I was acting on. For example, through continuing education and independent reading, I studied issues related to family violence and litigation. It was for the same reason that I participated in family law mediation training given by the London Custody and Access Project in the early 1990s. My interests have been translated into action for many years. My awareness of social issues and sensitivity to the experience of my clients when in practice, and now as a member of the bench, help me understand the “stories” being told. I am able to listen effectively in an unbiased manner.
I learned that people’s experience affects their perception of what is right or just, and for this I place great value in my ability to listen and not prejudge. While in practice, I endeavored to understand who my client was and what they wanted, so that I could propose solutions or advance arguments that took into account what the law allowed. This experience has served me well, and benefits the litigants who come before me seeking fair treatment. I am aware of the importance of providing common-sense and proportionate solutions to the legal problems presented.
With 37 years of experience at the bar and on the bench, I have confidence in my ability to continue to act as I have described.
I have a very strong work ethic and continue to devote many hours to ensure that I prepare for the cases that come before me and render decisions in a timely fashion.
My belief in the value of public service led me to become involved with, and take leadership roles in, community and legal organizations. Within the Ontario Court of Justice I also am involved in committee work. I am the Local Administrative Justice – Family at Windsor. I am a member of the Court's education committee that plans and executes continuing education programs. I was appointed by my Chief to sit on the Family Law Rules Committee.
With my experience, I am comfortable and familiar with courtroom procedure and practice.
Under the family court rules, judges are called upon to act not only as impartial deciders of cases, but also to assist litigants in reaching settlement through a mediation-like process provided for through conferences. I trained and had experience in resolving cases through mediation arbitration while in practice. Since my appointment, I have participated in two National Judicial Institute settlement conference programs, and conduct conferences many times each week.
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 city where I currently sit as a judge is a very diverse one culturally, ethnically, racially and economically. Persons who appear before me see in my face patience and respect. They also see a face that has had many experiences in a life on the bench, at the bar, in my community, and as a father and husband. They see in my face a parent who, with my wife, raised three children into adulthood, with much joy and our share of tribulation.
I am a Jewish person who grew up in a small town. There were not many of us in that town, and most seem to know that I was different because of that. It made me feel different, someone not part of the mainstream. This experience stayed with me. I remain proud and protective of my heritage. I can recognize this in others and am sensitive to it. The people who appear before me see that I appreciate what it feels like to be different and proud, and to want to be respected for our differences. I have confidence in my ability to judge in a culturally sensitive way and according to the law.
All of this is to say that I know not to prejudge based on first impressions, but to appreciate and be sensitive to the face and life experiences of those who come before me.
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