The Honourable William F. Pentney’s Questionnaire

Backgrounder

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 William F. Pentney.

Questionnaire for Judicial Appointment

[...]

Part 5 – Language

Please note that in addition to the answers to the questions set out below, you may be assessed as to your level of language proficiency.

Without further training, are you able to read and understand court materials in:

  • English: Yes
  • French: Yes

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

  • English: Yes
  • French: Yes

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

  • English: Yes
  • French: Yes

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

  • English: Yes
  • French: Yes

Part 6 – Education

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

Postgraduate:

  • LL.M. (Public Law) – 1987
    • University of Ottawa
    • Faculty of Law – Common Law
    • Coursework 1982-83
    • Thesis completion 1983-1987
    • Thesis: “The Aboriginal Rights Provisions of the Constitution Act, 1982

Law School:

  • LL.B. – 1982
    • University of Ottawa
    • Faculty of Law – Common Law
    • Attended 1979-1982

University:

  • Bachelor of Arts, History and Political Science – 1979
    • Queen’s University
    • Attended 1976-1979

Continuing Education:

  • Advanced Management Programme, INSEAD, France (2010)
  • "Living Leadership, The Executive Excellence Program", Canadian Centre for Management Development (2003-2004)
  • "Leading Transitions – Excellence in Leading Change", Canadian Centre for Management Development (2002)
  • Various courses in French – oral, written, comprehension

Honours and Awards:

  • University of Ottawa, Common Law Silver Medal – 1982
  • Duff-Rinfret Scholarship – LL.M. – 1983
  • Canadian Forces Medallion for Distinguished Service – 2010
  • Queen's Diamond Jubilee Medal – 2012
  • Awarded federal Queen's Counsel – 2015

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:

  • Deputy Minister of Justice and Deputy Attorney General of Canada (Nov. 2012 – June 2017)
    • [See non-legal experience below for October 2006 to October 2012]
  • Various positions, Department of Justice (1999-2006)
    • Senior Assistant Deputy Minister, Policy Sector
    • Assistant Deputy Attorney General, Citizenship, Immigration and Public Safety
    • Deputy Head, Aboriginal Affairs Portfolio
    • Director General, Aboriginal Justice Directorate
  • General Counsel and Director of Legal Services, Canadian Human Rights Commission (1991-1999)
  • Special Advisor, Law Reform and Litigation, Canadian Human Rights Commission (1989-1991)
  • Professor, Faculty of Law, Common Law Section, University of Ottawa (1983-1989)

Non-Legal Work Experience:

  • Deputy Secretary to Cabinet, Plans and Consultations, Privy Council Office (2010-2012)
  •  Associate Deputy Minister, Department of National Defence (2008-2010)
  • Assistant Secretary to the Cabinet, Priorities and Planning, Privy Council Office (2006-2008)

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.

  • Regular contributor to the Canadian Bar Association Annual Conference, and Section Conferences
  • Member of the National Action Committee on Access to Justice in Civil and Family Matters, Chaired by Justice Cromwell (2012-2015)
  • Member of the Steering Committee on Justice Efficiencies and Access to the Justice System (2015-2017)

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 Faculty of Law – “Afghanistan: Exploring Legal Dimensions of Modern Conflict” – 2010
  • Canadian Institute for the Administration of Justice Conference (CIAJ) – 2013
  • CBA Conference (Annual Legal Conference, and Mid-Winter Meetings) – 2013, 2014, 2015, 2016
  • Canadian Judicial Council – 2013, 2014, 2015, 2016
  • Court of Appeal Seminar (Orangeville, ON): "Development of Law and Policy in the Federal Government" – 2014
  • Canadian Association of Statutory Human Rights Agencies Conference (CASHRA) – 2014
  • College of Law, University of Saskatchewan: “Access to Justice” – 2015
  • International Centre for Criminal Law Reform and Criminal Justice Policy (ICCLR) – 2015
  • Re-Inventing Criminal Justice: The 7th National Symposium – 2015
  • Canadian Corporate Counsel Association (CCCA) National Conference: "Legal Innovation at DOJ" – 2015
  • Schulich School of Law, Dalhousie University: “Access to Justice” – 2015
  • Supreme Court of Canada Excellence Program: "Representing the Attorney General at the SCC" – 2015
  • Moderating a dialogue between Hon. Louise Arbour and Deputy Ministers on the balance between the safety and security of citizens and maintaining Canada’s tradition of protecting human rights (DM Seminar Series) – 2016
  • SCC Trends Conference: “Reflections on Governance in the 21st Century” – 2016
  • Public International Law Conference – 2016

Community and Civic Activities:

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

[...]

  • Co-Chair of the Government of Canada Charitable Campaign – Canada’s largest workplace fundraising campaign (2015-2016)
  • Board of Directors, United Way Ottawa (2015-2016)
  • Defence Construction Board of Directors (2009-2010)

Part 11 – The Role of the Judiciary in Canada’s Legal System

The Government of Canada seeks to appoint judges with a deep understanding of the judicial role in Canada. In order to provide a more complete basis for evaluation, candidates are asked to offer their insight into broader issues concerning the judiciary and Canada’s legal system. For each of the following questions, please provide answers of between 750 and 1000 words.

1. What would you regard as your most significant contribution to the law and the pursuit of justice in Canada?

I have been fortunate in my varied career to have had many opportunities to contribute to the law and the pursuit of justice in Canada.

I regard my most significant contribution to have been helping shape the law on human rights throughout my career. As a law professor, legal author, practitioner and a speaker at many conferences, I had the opportunity to contribute to some of the foundational legal concepts that underpin current equality law, including the tests for direct, indirect and adverse effect discrimination; the concept of systemic discrimination and the elements of proof appropriate for it; the nature and proof of defences to allegations of discrimination; and finally the remedial framework. I believe that my work in this area has made a lasting and significant contribution to the law and the pursuit of justice.

In my work at the Department of Justice, I have contributed to other aspects of human rights and the pursuit of justice, including running the Aboriginal Justice Directorate, which supports restorative and traditional justice programs in Indigenous communities across Canada. I have also worked on resolution strategies for the Indian Residential Schools case, criminal law reform, family law reform and program enhancements, and I have sought to support innovation in the delivery of criminal legal aid across Canada. I have had the privilege of participating as a member of the National Action Committee on Access to Justice in Civil and Family Matters under the leadership of Justice Cromwell of the Supreme Court of Canada, and serving as a member of the Steering Committee on Justice Efficiencies and Access to the Justice System, which brings together representatives from all areas of the criminal justice system to improve access and efficiency in the system. In addition, I have worked extensively on issues relating to reconciliation between Canada and Indigenous peoples, through my academic writing, as a practitioner, and now as Deputy Minister of Justice and Deputy Attorney General of Canada.

All of this work has involved leadership in the promotion and protection of human rights, with a particular focus on translating legal theories and principles into practical tools that address the lived experience of exclusion and discrimination. I believe that this body of work constitutes my most significant contribution to the law and pursuit of justice in Canada.

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

Throughout my career I have had the great privilege of working in all of the provinces and territories, and working with remarkable Canadians from diverse backgrounds, and from all parts of the country. I have spent my entire adult life working on issues of equality, discrimination, inclusion and belonging, in one way or another.

As a legal academic, the focus of my teaching and writing was human rights law, Aboriginal and Treaty rights, and the Charter of Rights and Freedoms. During this period, I worked with a variety of individuals and groups on legal advocacy about human rights issues, and I gained a better understanding of the lived experience of different minority communities.

At the Canadian Human Rights Commission, I worked on a wide variety of legal issues, often in collaboration with other Human Rights Commissions and civil society groups representing minorities and vulnerable populations. Through this work, I got to see the damage done to individuals and groups by discrimination of all sorts. I also had the chance to see the power and the promise of the law in developing and delivering solutions to remedy discrimination and seeking to prevent it. And I litigated and provided legal advice on cases from across Canada, including the Territories, involving the federal government and federally regulated employers and service providers.

At the Department of Justice, I have worked on Aboriginal Justice, immigration, human rights and privacy, national security, criminal law and a host of other legal issues. I have worked with outstanding professionals from across the country in a very diverse workforce. Two experiences stand out: the opportunity to spend an extended period in a wilderness camp in the Yukon with Harold Gatensby, an Aboriginal leader in restorative and community justice, and to witness the leadership and strength he gained by drawing inspiration from his traditions as he lead his and other communities on a path of healing and re-building. This was truly a remarkable experience that left an indelible imprint on me. Similarly, I have had the opportunity to work closely with the members of the Cross-Cultural Roundtable on National Security in the years since 9/11. These individuals, drawn from a wide range of minority communities across Canada, engaged in thoughtful, deep dialogues on national security issues as experienced by their community, and provided insight and assistance to federal departments and agencies as we developed and implemented laws, policies and practices in this emerging area. I learned a great deal from these leaders. Listening to their experiences and perspectives, I increased my knowledge of myself and my own built-in preconceptions, and gained a better appreciation of how diverse perspectives contribute to better solutions.

Finally, I have had the privilege of leading Canada’s largest legal organization, the Department of Justice. It has offices across Canada and in the North; it deals with issues from all parts of Canada; and it is a diverse and vibrant workplace. The Department also supports the national government, which is itself composed of Ministers representing all regions of Canada. This work is a daily reminder of the complexity of the country, in all of its diversity.

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

The role of a judge in a constitutional democracy has many dimensions. First, a judge must seek to do justice according to law, which involves resolving disputes through a fair process, and making a decision based on the unbiased, diligent and thoughtful application of the law to the facts. I would add that a judge must bring to this task compassion, empathy, and an understanding of the human condition of the individuals before the Court, combined with awareness of the social conditions and context that provide the backdrop for the matter. A judge must act with integrity and independence in all matters inside and outside of the courtroom. All of this is true for any judge in any legal and political context.

The question of the “appropriate” role of a judge in a constitutional democracy brings into focus the question of the judiciary in relation to the legislative and executive branches of government. In this, I would argue there are some clear guiding principles, but their application in particular cases cannot be done through hard and fast rules. First, the judiciary in Canada has been involved in adjudication of constitutional disputes from the outset – starting with division of powers cases, then branching into judicial review of Ministerial and governmental decision-making, and then applying emerging concepts such as the “implied Bill of Rights”. With the adoption of the Charter, and the Aboriginal and Treaty rights in s. 35 of the Constitution Act, 1982, this has taken on entirely new aspects, given the expectations of Canadians, the wording of the Charter guarantees, the duty to determine whether limits on rights are reasonable and justifiable under s. 1, and the duty to craft an appropriate remedy. These duties were assigned to the judiciary by the democratically elected representatives of the country, and are entrenched in our core constitutional document.

In light of this, I believe that the “appropriate” role of a judge in a constitutional democracy is to act with integrity and independence in assessing the validity of laws or government actions, and applying the law to the facts of the matter. Given the nature of constitutional adjudication, I believe it is important for the judiciary to act with a degree of humility in what they know as they assess the validity of legislation or government actions. I have been deeply involved in policy development, Cabinet and Parliamentary processes, and have seen how complex an exercise it can be to strike the appropriate balance when dealing with many different and intersecting interests, rights and perspectives. Given this, I am keenly aware of the challenges the judiciary faces in addressing legal issues that have been framed by parties, based on their respective interests, within a process and rules that limit the scope for consultation or for other voices to bring forward evidence and perspectives. So I believe that judges must generally demonstrate respect for the legislative or governmental decision-making process, and humility in assessing whether the balance that was struck is invalid under the Charter.

On the other hand, I have also seen how difficult policy questions can be ignored or deferred by governments or legislatures, or conversely dealt with so rapidly and with such a focus on a particular result that this range of perspectives and evidence is never brought to bear. Many cases involve laws that were adopted long before the Charter of Rights and Freedoms, or before current case-law developed. In these instances, a judge must appropriately demonstrate the courage to fulfill the mandate that Canadians have bestowed, to apply the constitutional doctrines in a purposive manner, in light of the wider context and the promise of protection that is inherent in an entrenched Charter of Rights. This may sometimes involve leading rather than following, and in this again I would argue that a degree of humility is essential, both in crafting new doctrine and in creating new remedies. However, it is entirely appropriate in this type of situation for a judge to give full effect to the constitutional guarantees, knowing that it is generally open to the legislative and executive branches to respond if they see fit.

Finally, in all that he or she says, writes or does, both inside and outside of the courtroom, a judge carries the responsibility of stewardship of the institution of the judicial branch of governance. Canadians have bestowed great power and great responsibility on the judiciary, and they rightly have great confidence that judges will use these wisely. They also rightly expect the highest standards of conduct of the judiciary, and this is another aspect of the “appropriate” role of a judge in a constitutional democracy.

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

The first audience for decisions rendered by the Federal Court is the parties to the proceeding. They deserve a decision which fairly reflects the positions they advanced before the Court, and one which presents an impartial, diligent and thorough explanation of the result, written in a language which can be comprehended.

The next audience is the decision-makers who will be bound by the law as set out in the decision – the members of the Tribunal which rendered the decision under appeal. The role of a court is to resolve matters for the parties, and to provide guidance for those who are bound to apply the law as set out in the decision. For the Federal Court, this includes the administrative bodies whose decisions are appealed or reviewed by the Court. In relation to matters of law, this requires precision of thought and expression, as well as a capacity to comprehend the different and various circumstances in which the legal doctrine is likely to be applied in future cases, to the extent one can do so.

A third audience are those who may rely on the decision for guidance as to the law, including other judges and counsel advising parties on matters of law or its application to similar factual situations. This includes groups most directly affected by the doctrine set out in the decision, for example refugee claimants, First Nations, equality-seeking groups, or corporations. A distinct audience is the Supreme Court of Canada, which may hear the matter on appeal, or may refer to the decision in its exposition of the law.

Another audience is the wider public, and the media. Decisions are now widely available, and Court decisions must be written with a view to being comprehended by more than an expert audience. There are limits to this, given the primary responsibility to do justice according to law for the parties, and the requirements of judicial decision-making, but decisions should be written in a manner such that a reasonably informed reader, whether a member of the public or journalist, can understand the essential findings and the legal determinations which guided the decision. This requires clarity and simplicity of written expression, and care in the essential passages to express the concepts in a manner which is easily understood.

Finally, the legal academic community is a relevant audience. It is not the job of a judge to please academics by randomly citing their work; it is, however, a relevant consideration that courts provide interpretations of the law which in many areas will be the “last word”, since so few matters will be appealed. In this sense, the Court is engaged in clarifying and sometimes developing the law, and its decisions will be read and parsed by legal academics.

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.

First and foremost, I see the opportunity to serve as a judge as a way to continue my public service, and to serve Canada and Canadians in a new role. I believe that my professional and personal experiences, and my personal qualities, provide a solid foundation for the role of a judge.

My varied professional career has afforded me the opportunity to teach law, to practise, to see law in action as a client, and to participate in its development through my first-hand experience supporting Cabinet and Government decision-making on legislation and regulations.

As a law professor, I taught and wrote about law – primarily equality and anti-discrimination law, Aboriginal and Treaty rights, constitutional law, as well as contracts and remedies. Teaching demanded that I learn to convey complex legal ideas clearly and simply, to engage in effective listening, and to approach legal issues from a variety of perspectives. It sharpened my ability to express myself clearly and effectively in both oral and written communications. It also permitted me to engage in outside legal activities, including speaking, research and writing, and sitting as a Board of Inquiry member under the Ontario Human Rights Code.

At the Canadian Human Rights Commission, I was engaged in the practice of law, providing advice to the Commissioners on a wide range of legal matters, across the full scope of employment and services within federal jurisdiction. I acted as counsel or co-counsel on a number of appeals, and was involved in providing strategic direction on significant litigation, legal policy and human rights questions, including systemic pay discrimination against women in the federal government (the largest systemic discrimination case ever done in Canada), racial discrimination, the implementation of the Employment Equity Act, and the development of equality law and theory under s. 15 of the Charter. This experience developed my skills and abilities in legal strategy, and deepened my understanding of the implications of decisions and doctrines as applied across a wide range of situations, and enabled me to hone my skills as an appellate advocate. I also had the opportunity to work with first-rate counsel from commissions, unions, non-governmental organizations, and private practice from across Canada. I worked closely with counsel from other human rights commissions, and had the opportunity to travel to every province and territory, arguing cases or presenting at human rights and equality rights conferences. Finally, this experience enabled me to gain a rich understanding of discrimination and exclusion, through interactions with complainants whose life experience of exclusion and discrimination was the motivation and inspiration for my work.

At the Department of Justice, I have had a wide array of experiences – administering alternative justice programs in some of the most remote and impoverished Indigenous communities in Canada; working on resolution strategies to deal with the legacy of Indian Residential Schools; developing and implementing anti-terrorism laws after 9/11, and again after the attacks in Québec and Ottawa; dealing with some of the most complex and difficult legal issues that the federal government has addressed in modern times, including prostitution, assisted dying, criminal law reform, anti-terrorism laws, modern war crimes, and class actions involving a broad range of federal activities and laws. This has allowed me to be directly involved in the “full life-cycle” of laws – from defending against a Charter challenge, to dealing with the decision through policy development leading to Cabinet discussion and approval, to Parliamentary debates, to implementation, followed by other legal challenges. This experience has strengthened my capacities for legal analysis and strategic thinking, and provided me with a finely honed understanding of the implications of law and law making, of judging, and of the views and reactions of the wider community to legal developments. It has also enabled me to work with other highly-skilled lawyers from inside and outside of government, and to develop my abilities for leadership, teamwork, listening for understanding, and presenting and defending legal positions.

I take pride in my integrity, honesty, fairness and compassion – qualities which I believe characterize a good judge. I work extremely well with others, and always seek to understand a wide diversity of views. I have had the good fortune to travel and work in all jurisdictions in Canada, and in some international contexts (South Africa, Afghanistan). Through my diverse work experiences, I have gained a rich understanding of the experience of discrimination and exclusion. I have also had the privilege to work in a diverse, bilingual, bijural context throughout my professional career. Most people would describe me as intelligent, open-minded, fair, a highly-skilled communicator, and a problem-solver. They would say that I am an extremely hard worker who manages a very stressful job while maintaining a strong devotion to my family and community.

As Deputy Minister of Justice and Deputy Attorney General of Canada, I have also developed my ability to take decisions – to gather the necessary facts, hear a variety of viewpoints, and then to take a decision. I am now managing Canada’s largest and most complex legal organization, and decision-making is a daily requirement of my job. In my prior roles at the Privy Council Office, and in particular at the Department of National Defence, I was also required to take decisions on difficult and complex matters, often under immense time pressure. Through these experiences, I have improved my capacity for taking timely and effective decisions, and for managing the stress associated with such responsibilities.

Finally, since joining the public service, I have worked in a context where discretion and personal integrity are required in all facets of my life. I am now involved in matters which involve Cabinet and Government secrets, as well as matters of national security. I understand the high standards of conduct and discretion to which public officials are rightly held in Canada, and I have lived in that context for many years. I am proud to live in a country which holds its highest officials to such demanding standards, and I am confident that I can live up to these expectations.

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 am a passionately proud Canadian, and if I am so fortunate as to be appointed to the Federal Court, I would hope that many people would see my story as their story.

I am one of six children, born to parents who worked hard to provide for their family, but who lived a very modest life. I was born and raised in small towns outside Sudbury, and I am the first of my family to graduate from university (two brothers and my sister graduated later). I am the first in my family to become a lawyer. I put myself through university working underground in mines both in Sudbury and north of Thunder Bay. So like many Canadians, my parents’ sacrifice and support enabled me to go to university.

I have spent my adult life in service to my community and my country, as an academic, a practitioner, and as a public servant. I have had the very good fortune to travel from coast to coast to coast, and to work with truly remarkable Canadians on issues that are important to our country. I have worked hard to learn about the country, to try to understand what it means to be seen as “the other” across the spectrum of life experience and circumstance of Canadians, and to make what I hope is a valuable contribution to making our country more just, more equal and more free.

I have been married for 36 years to an amazing partner, a school teacher who has sacrificed much to support my public service. I am a proud father of two daughters, and I have seen both of them become lawyers and grow into wonderful young women who are making great contributions to Canada.

I hope that others see someone with integrity, honesty, empathy and compassion. Someone who is proud to live in a diverse, open, inclusive society. Curious about the lives of others. Aware of our history, with its glories and its failures. Proud of who we are and the kind of community we have built, and hopeful for our future. And humbled by the great privilege of having had so many opportunities to contribute to that society. In this way, my story is similar to the story of so many other Canadians.

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