The Honourable Diane MacDonald’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 Diane MacDonald.
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:
- 1998 - Ph.D., Northeastern University, Boston, Massachusetts
Law, Policy and Society (interdisciplinary) Program
- 1991 - LL.B., Dalhousie University, Halifax, Nova Scotia Schulich School of Law
- 1985 - B.A., Simon Fraser University, Burnaby, B.C. History
Various courses including courses offered through the following:
- Continuing Legal Education of B.C.
- Canadian Bar Association (B.C. Branch and National)
- Canadian Association of Labour Lawyers
- Osgoode Hall's Professional Development
- Trial Lawyers Association of B.C.
- Queen's Centre for Law in the Contemporary Workplace
- Canadian Association for the Practical Study of Law in Education
- Lancaster House
- Justice Institute of B.C.
- Courthouse Libraries of B.C.
- Western Labour and Employee Relations Forum
- Allard School of Law's Mawhinney Lectures (UBC); and
- Carswell Professional Development.
Honours and Awards:
- 1994-1995 - Law Foundation of British Columbia Fellowship
- 1994-1995 - U.S. Institute for Women's Policy Research Scholarship
- 1993-1994 - Law, Policy and Society Fellowship
- 1992-1993 - Law, Policy and Society Fellowship
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:
- 2008-present - General Counsel, B.C. Teachers’ Federation, 100-550 West 6th Avenue, Vancouver, BC
- 2005-2008 - Federation Counsel, B.C. Teachers’ Federation, 100-550 West 6th Avenue, Vancouver, BC
- 2003-2006 - Member, B.C. Labour Relations Board, 600-1066 W. Hastings Street, Vancouver, BC
- 2000-2005 - Staff Lawyer, BC Teachers’ Federation, 100-500 West 6th Avenue, Vancouver, BC
- 1995-2000 - Associate Lawyer, Victory Square Law Office, 400-198 W. Hastings Street, Vancouver, BC (now 710-777 Hornby Street)
- 1991-1992 - Articling Student, Alexander, Holburn, Beaudin & Lang, 2700 – 700 West Georgia, Vancouver, BC
- Summer 1990 - Baker McKenzie, Suite 2100 – 181 Bay Street, Toronto, ON
- Summer 1989 - Mackimmie Matthews, Suite 700 – 4019 Avenue SW, Calgary, AB
Non-Legal Work Experience:
- 1994 - Lecturer, University College, Northeastern University, Boston, Massachusetts
- 1993 - Lecturer, Massachusetts College of Pharmacy, Boston, Massachusetts
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.
- 2016-2017 Canadian Bar Association, Women Lawyers Forum's Mentoring Program
- 2005-2007 Co-Chair, Labour Law Section, Canadian Bar Association (B.C. Branch)
- 1998-2000 B.C. Vice-President, Canadian Association of Labour Lawyers
- 1998-2000 Program Chair, Human Rights Section, Canadian Bar Association (B.C. Branch)
- 1995-present Member, Canadian Bar Association
- 1995-present Member, Canadian Association of Labour Lawyers
Pro Bono Activities:
I do not have a history of doing pro bono work. My contribution to the profession has been my extensive teaching throughout the years and various academic articles.
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).
- March 2017 - Guest Lecturer. Course: Public Policy for Women, Simon Fraser University
- March 2017 - Panelist. Canadian Bar Association, Labour Section. Topic: Recent Supreme Court of Canada Win (forthcoming)
- November 2016 - Co-Chair and Panelist. Lancaster's Public Sector Bargaining Conference. Two Topics: The Charter at the Crossroads and Roundtable Roundup
- November 2016 - Guest Lecturer. Labour Law Course, Osgoode Hall Law School (Toronto)
- November 2016 - Panelist. CBA Annual Administrative, Labour and Employment Law Conference. Topic: What's New in Labour and Employment Law (Ottawa)
- June 2016 - Panelist, Plenary Session. Canadian Association of Labour Lawyers Conference. Topic: Supreme and Appellate Court Update (St. John's)
- January 2016 - Panelist. Western Labour and Employee Relations Forum. Topic: Collective Bargaining: Best Practices to Avoid Legal Pitfalls
- June 2015 - Panelist, Plenary Session. Canadian Association of Labour Lawyers Conference. Topic: The 2015 Labour Trilogy: Section 2(d) Awakens, But Will the Empire Strike Back? (Winnipeg)
- May 2015 - Panelist. Canadian Association of Labour Lawyers Conference (B.C.). Topic: BC Teachers' Federation v. British Columbia, 2015 BCCA 184
- November 2014 - Panelist. Lancaster's Public Sector Bargaining Conference. Topic: The Implications of Government Involvement in Bargaining
- April 2014 - Plenary Speaker. Canadian Association for the Practical Study of Law in Education Conference. Topic: Teachers and the Charter (Charlottetown)
- April 2014 - Panelist. Lancaster's Human Rights and Accommodation Conference. Topic: Major Caselaw Update
- June 2013 - Panelist. Canadian Bar Association Labour Section's Annual Dinner. Topic: Ethical Questions for Labour Lawyers
- June 2013 - Panelist. Canadian Association of Labour Lawyers Conference. Topic: Ten Things Every Labour Lawyer Needs to Know Ethical and Professional Issues (Banff)
- April 2013 - Co-Chair. Lancaster's Human Rights and Accommodation Conference
- June 2012 - Panelist. Continuing Legal Education of B.C. Labour Relations Conference. Topic: The Charter and Collective Bargaining
- November 2011 - Panelist. Canadian Bar Association Labour Section Meeting. Topic: The Supreme Court of Canada's Fraser Decision
- June 2011 - Panelist. Queen's Centre for Law in the Contemporary Workplace. Topic: The Implications of the Fraser Case (Kingston)
- May 2011 - Panelist. Canadian Association of Labour Lawyers Conference. Topic: Practice Management Issues
- March 2011 - Panelist. Continuing Legal Education of B.C. School Law Conference. Topic: Recent Developments in Special Education, the Moore Decision
- March 2011 - Panelist. Lancaster's Annual Human Rights and Accommodation Conference. Topic: Mental Disabilities: Ensuring Adequate Representation for Mentally Challenged Employees
- November 2010 - Panelist. Canadian Association for the Practical Study of Law in Education Conference. Topic: Recent School Law Cases Educators Need to Know About
- March 2010 - Co-Chair. Lancaster's Human Rights and Accommodation Conference
- April 2009 - Panelist, Plenary Session. Canadian Association for the Practical Study of Law in Education Conference. Topic: Teacher Bargaining, the Road Untraveled (Toronto)
- June 2008 - Panelist. B.C. Human Resources Management Association's Building Business Results Conference. Topic: Supreme Court of Canada's Health Services Decision
- April 2008 - Panelist. Lancaster's Human Rights and Accommodation Conference. Topic: Mandatory Retirement
- December 2007 - Panelist. Lancaster's Labour Arbitration Conference. Topic: Discrimination on the Basis of Family Status
- April 2007 - Panelist. Canadian Association for the Practical Study of Law in Education. Topic: Institutional discrimination against students with special needs
- June 2006 - Co-Chair. Lancaster's Human Rights and Accommodation Conference
- February 2006 - Panelist. Continuing Legal Education of B.C. School Law Conference. Topic: Teachers and Freedom of Expression
- November 2005 - Panelist. Lancaster's Arbitration Conference. Topic: Arbitrators' Changing Attitudes to Alcohol, Drugs and Nicotine
- April 2004 - Panelist. Lancaster's Workplace Privacy Conference. Topic: New B.C. Privacy Legislation
- April 2004 - Interview on CBC Radio. Topic: Contempt of Court (HEU strike)
- November 2003 - Panelist. Lancaster's Public Sector Bargaining Conference. Topic: Essential Services (Toronto)
- May 2003 - Panelist, Plenary Session. Canadian Association of Labour Lawyers Conference. Topic: Labour Law Issues in B.C. (Montreal)
- June 2002 - Panelist. Canadian Association of Labour Lawyers Conference. Topic: Federal Privacy Laws
- March 2001 - Guest Speaker. Ergo-Ed: 2001 Conference. Topic: Duty to Accommodate Disabilities in the Workplace
- October 2000 - Guest Speaker. Sixth Annual Cascadia Conference sponsored by The Foundation for Medical Excellence. Topic: Addictive Disease Issues for the 21st Century
- August 2000 - Panelist. Canadian Association of Labour Lawyers Conference. Topic: Duty to Accommodate Chemical Dependency
- May 1998 - Panelist. Canadian Association of Labour Lawyers Conference. Topic: Collective Bargaining Structures
- April 1997 - Guest Speaker. Trade Union Research Bureau. Topic: Multi-Employer Certification
- April 1997 - Guest Speaker. Capilano College Course. Topic: Sectoral Certification
- June 1996 - Panelist. Canadian Association of Labour Lawyers. Topic: Duty to Accommodate Chemical Dependency
- September 1995 - Panelist. Capilano College's Conference on Labour Law Reform. Topic: Sectoral Bargaining
- May 1995 - Panelist. The Institute for Women's Policy Research at Cornell University. Topic: Methods for Organizing Women in a Restructured Economy (New York)
- April 1994 - Panelist. The New England Political Science Association's Annual Conference. Topic: Sexuality and the State (Boston)
- February 1994 - Guest Speaker. Massachusetts Department of Employment and Training. Topic: Violence Against Women (Boston)
Community and Civic Activities:
List all organizations of which you are a member and any offices held with dates.
- 2015-present - Volunteer at Circus West
- 2014-2015 - Volunteer and fund raiser for Britannia's World Gymnaestrada Team (Helsinki 2015)
- 2013-2015 - Vancouver Technical Secondary School Representative for Canadian Parents for French (BC and Yukon Chapter)
- 2008-present - Canadian Parents for French
- 2005-2013 - Laura Secord Elementary School Volunteer (school carnival, earth day, bottle drive “champion” for grade 7 exchange, and gift exchange committee)
- 2006-2011 - Phoenix Gymnastics volunteer
Part 11 – The Role of the Judiciary in Canada’s Legal System
The Government of Canada seeks to appoint judges with a deep understanding of the judicial role in Canada. In order to provide a more complete basis for evaluation, candidates are asked to offer their insight into broader issues concerning the judiciary and Canada’s legal system. For each of the following questions, please provide answers of between 750 and 1000 words.
1. What would you regard as your most significant contribution to the law and the pursuit of justice in Canada?
My most significant contribution to the law and pursuit of justice in Canada has been detailed research, analysis and advocacy in the areas of labour law and policy. I have made a significant contribution to both freedom of association and equality jurisprudence. I have also conducted research for a doctoral dissertation into how to improve the working conditions of low-wage, precarious employees.
I have been extensively involved in the development of an emerging area of the law, freedom of association. My work has helped to define the scope of s. 2(d) of the Charter, including the role of consultations by governments prior to enacting legislation, in the labour relations context. The leading case in which I have been involved is British Columbia Teachers’ Federation v. British Columbia, 2106 SCC 49. Although I was counsel on all aspects of the case, my oral submissions before the Supreme Court of Canada addressed the issue of what is the appropriate legal test to determine if pre-legislative consultations are conducted in good faith. I argued that the courts have the institutional competence to subject government's positions and proposals to significant scrutiny to determine if the good faith test is met under s. 2(d). I argued that such an approach would preserve the Charter-protected balance between employers and employees that is at the heart of s. 2(d). I relied upon Supreme Court of Canada jurisprudence that the purpose animating freedom of association is approximate equality of bargaining power between employers and employees: Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1. By adopting the dissenting judgment in the BC Court of Appeal, the Supreme Court of Canada accepted my submissions.
I have also made a significant contribution to equality law by advancing discrimination and duty to accommodate jurisprudence regarding employees with disabilities. In one case I represented a nurse, who had been terminated for an addiction, before his professional disciplinary body and in arbitration. Relying on expert evidence, I successfully argued that the nurse's addiction was a disability that needed to be accommodated to the point of undue hardship. This early case helped establish the developing law that although an employer is entitled to the benefit of the employment contract (i.e., a functioning and productive employee), when a disability is the underlying cause of what would otherwise be culpable behaviour, accommodation to the point of undue hardship is required: Health Employers' Association of British Columbia (Castlegar & District Hospital Society) v. B.C. Nurses' Union (Bergen grievance),  BCCAAA No. 9 (Dalton Larson).
I have continued to work in this area, including accommodating those with learning disabilities. For example in Moore v. British Columbia (Education), 2012 SCC 61, a human rights case, the Federation intervened at all levels of court including the Supreme Court of Canada. Our analysis (I was co-counsel with Robyn Trask), which I had earlier developed in a Continuing Legal Education of B.C. article, was adopted by the Supreme Court of Canada. In the article, I argued that the law regarding the duty to accommodate students with special needs undermined substantive equality in three ways: 1) by introducing a new requirement into the s. 15 Charter analysis that the benefits claimed must be “provided by law”; 2) by characterizing the service sought narrowly, as special education, instead of as a right to a meaningful education thereby reversing the legal burden; and 3) by resurrecting the comparator group analysis, allowing the courts to deny the claim rather than challenge the way in which educational institutions should be transformed to be inclusive and accessible for all students.
My earlier academic research focused on women, immigrants, workers of colour and individuals with disabilities who are often employed in non-standard employment (e.g., short- or fixed-term, part-time, temporary or casual work). My Ph.D. dissertation explored how to better support these vulnerable employees. I concluded that access to collective bargaining would improve their working lives. My research revealed structural barriers embedded in the Wagner Act model of collective bargaining. The 1935 Wagner Act in the United States has long been the model on which collective bargaining legislation in Canada, both federally and provincially, is based. These structural barriers entrench a hierarchy between continuously employed, full-time employees, typically in larger workplaces, and low-wage, precariously employed individuals, often employed in smaller workplaces. I concluded that a form of sectoral, broader-based, bargaining would make collective bargaining more accessible to these employees. Although of academic interest at the time of my dissertation, there was a lack of social consensus that the Wagner Act model of collective bargaining should be restructured to be available to these employees.
Almost twenty years after my dissertation, Ontario's Changing Workplaces Review, led by two special advisors, has a mandate to, inter alia, engage with Ontario citizens to consider what changes may need to be adopted in labour and employment laws to protect vulnerable workers. The Interim Report, which was released in July 2016, sets out options for alternative models of sectoral bargaining to expand access to these employees. Several individuals involved in the review requested a copy of my Ph.D. dissertation and at least one of the experts cited it, as well as my article on sectoral certification: Sara Slinn, Collective Bargaining (Toronto: Ontario Ministry of Labour, 2015). My research has also been referred to at two recent conferences I attended where Ontario's Changing Workplaces Review has been discussed: Canadian Association of Labour Lawyers' 2016 Conference, Ivory Tower Dispatches Volume II: Applications from Current Academic Research; and Lancaster House's 2016 Bargaining in the Broader Public Sector Conference, Fair or Foul: Which ways are the economic winds blowing in BC?
2. How has your experience provided you with insight into the variety and diversity of Canadians and their unique perspectives?
As a woman who works outside the home, and as a mother, I have firsthand knowledge of the difficulties in balancing a demanding career with family life. This, combined with my work in equality law, has reinforced my view that we need substantive equality to infuse all aspects of the legal system. In addition, my Métis ancestry has enhanced my understanding of issues facing Aboriginal communities and the need for society to actively engage in ongoing reconciliation.
My academic research also broadened my horizons, especially regarding the growing inequality in our society. This was exemplified in my research in the divide between full-time, well paid employees and low-wage, precariously employed individuals. This divide has only increased in the intervening years and is a reality, I expect, that judges regularly encounter in their courtrooms.
Between 1992 and 1995, while studying in Boston, I served on the board of directors of Respond. Respond is New England's first domestic violence prevention agency. Its office is located in Somerville, Massachusetts. Respond provides a shelter for women and children in danger, a crisis hotline, support services, training, and education in Boston and its surrounding communities. This experience was instrumental in my becoming aware of the power imbalances and patterns of control in domestic relationships and how difficult it is for those who are abused to leave. These issues are compounded when children are involved and the abused woman has limited resources, often the outcome of marital breakdown. This experience encouraged me to consider the ways in which domestic violence and discrimination against women and children violate the principles of security, equality and dignity that we strive to protect. I have recently become more knowledgeable about how some women and children are particularly vulnerable such as those from Indigenous communities. I also recognize that men may also be abused.
In the context of my labour and human rights practice, I have worked with employees with a myriad of issues including discrimination based on race, gender, colour, sexual orientation, religion, gender-identity, and all forms of disability. In my early to mid-career I was counsel on many duty to accommodate cases which required me to grapple with these issues. My work on the Moore case was particularly meaningful as I have a family member with dyslexia.
I have also been involved in many harassment cases although I have resolved most of them without the need of an arbitration or human rights hearing. Through this area of practice, I have developed a better understanding of how underlying issues (e.g., poverty, stress, mental health issues, marital breakdown, etc.) can cause or exacerbate difficult relationships in the workplace. I also developed my mediation skills in this area.
I was also counsel on Palmer and Palmer v. BCTF and others, 2008 BCHRT 322, where two members of the Fundamentalist Latter Day Saints alleged that the Federation and two of its staff members created discriminatory publications. The publications were aimed at putting pressure on the provincial government to investigate the “persistent and serious” allegations of child abuse, the trafficking of young girls, the casting out of young men to maintain a gender imbalance, and teaching a narrowly focused curriculum to the children being raised in Bountiful, B.C. The complaint was dismissed on the ground that it would have no reasonable prospect of success. The case addressed free speech, discrimination and the intersection between equality and religious rights.
I started my career working in large firms (Mackimmie Matthews in Calgary, Baker McKenzie in Toronto, and Alexander Holburn Beaudin and Lang in Vancouver), where I was exposed to a broad range of issues including an emphasis on management-side labour law. After graduate school I moved to a boutique firm specializing in union/employee side labour law and human rights. Having represented both employers and unions furthered my development as a lawyer. Consequently, I endeavour to spend as much time thinking about the anticipated arguments of opposing counsel as I do considering the arguments I will present on behalf of my client. Later in my career I was again exposed to the management side of labour relations when I became General Counsel for the Federation in 2008. In this position, I provide employer-side advice to the Executive Director and the Director of Human Resources regarding the unionized employees of the Federation. My experience on both sides of labour relations enabled me to see problems from various angles and perspectives and enhanced my ability to be open to competing points of view.
My focus on the protection of workers, human rights and discrimination have contributed to my ability to appreciate all kinds of diversity and the difficulties individuals confront in the workplace and in life generally. From this experience, I have a deeper knowledge of issues that arise, or come to the surface, in the workplace. For example, stress, anxiety, depression, and addictions affect many employees and require both in depth knowledge of the legal issues and sensitivity to those who are struggling. Moreover, I have become aware that disabilities are prevalent and varied. This awareness has made me want to play my part in creating a more inclusive society where all members can fully participate in the social, economic, political and cultural aspects of our communities.
3. Describe the appropriate role of a judge in a constitutional democracy.
Our system of government is divided into three branches: the legislative, the executive and the judiciary. Although not absolute (e.g. the authority of the province over the administration of justice in the province: s. 92(4) of the Constitution Act, 1867), the core elements of judicial function are independent from the other two branches of government. Judicial independence is the cornerstone of our democracy and is required in all decision-making functions. Independence is also required from the court in its institutional capacity. As set out in Reference Re Remuneration of Judges of the Provincial Court (PEI),  3 S.C.R. 3, three elements ensure judicial independence: security of tenure, financial security and administrative independence. Judicial independence exists to protect the public by allowing judges to render decisions free of outside influence and without concern about an unpopular decision affecting a judge's pay or tenure. It exists for the benefit of those judged, not for the benefit of judges: Ell v. Alberta,  1 S.C.R. 857.
In our constitutional democracy, the Constitution of Canada is supreme: s. 52(1) of the Constitution Act, 1982. Since the courts are the final arbiters of constitutional compliance, judges are the guardians of constitutional rights. In addition to adjudicating questions regarding the division of power between the federal government and the provinces, with the enactment of the Charter of Rights and Freedoms in 1982, judges must ensure that government legislation and conduct do not run afoul of the Charter. It is the role of judges to determine when governments have abrogated mobility, language, democratic, legal and equality rights, as well as the fundamental freedoms. To do this, trial judges should be knowledgeable of the jurisprudence from the Supreme Court of Canada and their respective courts of appeal.
There is a tension between the concept of democratic governance and the constitutional protection of rights and freedoms. There is a fine balance between ensuring that governments are not abrogating Charter rights and allowing legislatures to do their jobs. Section 1 of the Charter allows limits on fundamental rights and freedoms, but only if they are “prescribed by law” and “demonstrably justified in a free and democratic society.” Judges must delineate this balance: they cannot usurp the role of the legislature's policy making function but they must be prepared to find against the state when it improperly exercises its authority. This will often be a difficult task.
While judges must be independent and impartial in their adjudicative functions, they come from different backgrounds, bring varied experiences to the court, and hear cases through their own lens. It is important that judges are aware of their own biases and perceptions, and critically assess them. Judges should strive to understand the social context within which disputes are situated before they attempt to fairly and impartially apply the law to the facts. Judges should also be alive to social, cultural and economic changes because the law is not static. In this regard, it is helpful if judges are open to social context education to assist them in appreciating and approaching disputes with sensitivity to sexual orientation, gender and gender-identity, race, minority, regional, religious, cultural and other differences. The importance of an equality based analysis is in fact emphasized by the Canadian Judicial Council in its “Ethical Principles for Judges”. Chief Justice McLachlin has emphasized the need for a contextual analysis in “Judging: the Challenges of Diversity”, Judicial Studies Committee Inaugural Annual Lecture, June 7, 2012, Edinburgh, Scotland. She stressed that judges must understand not just the legal problems before them but the social reality out of which disputes arise.
Judges must conduct trials and issue decisions in an efficient, cost-effective and timely manner. The need for timely justice in criminal matters has recently been emphasized by the Supreme Court of Canada in R. V. Jordan, 2016 SCC 27 when it imposed a 30-month presumptive ceiling from charge to the end of the trial. Civil cases must be decided in the context of the Supreme Court Rules. Rule 1-3 sets out that the object of the Rules is to “secure the just, speedy and inexpensive determination of every proceeding on its merits.” The Rules state that proceedings should be conducted in ways that are proportionate to the amount involved, the importance of the matter and the complexity of issues.
Judges must be able to communicate the evidentiary basis and their legal reasoning in reaching a decision. To facilitate transparency, judges' reasons should be sufficiently detailed so the lawyers, other participants in the legal system, the public and especially the litigants understand how they reached their decision. This means having the ability to synthesize complex legal issues, explain difficult legal concepts and focus on the most pertinent factors. Judges should be receptive to competing points of view. They should listen to both or all sides of the dispute and endeavour to understand each parties' perspective, with empathy and openness, prior to rendering their decision.
It is the role of trial judges to properly sort through complicated evidence and create a record that is understandable to those involved and upon which an appellate court can rely if the case is appealed. The decision should be based on the evidence before the judge and the legal principles. The result should be both fair and consistent with the relevant law.
Judges should always act ethically and avoid conflicts of interest. They must be competent, tolerant, and respect all litigants who appear before them. They should not attempt, after their decision is rendered, to publicly defend it, regardless of the scrutiny it may attract. Lastly, judges must remain above the political fray and always remain neutral. Judges must avoid making public statements or taking positions on controversial issues or issues that may be the subject matter of cases before them. They should always conduct themselves in an exemplary manner, particularly when appearing in public. The behaviour of judges reflects on the judicial system as a whole.
4. Who is the audience for decisions rendered by the court(s) to which you are applying?
I am applying to be a judge in the Supreme Court of British Columbia. The court is the superior trial court in the province. The judges primarily hear trials on a wide range of disputes including civil law cases (e.g., contracts, torts, family, wills and estates, and public law issues such as Aboriginal cases and judicial review of administrative tribunals) and criminal law cases.
The audience for civil law cases will generally be the two or more private parties involved. For example, a family law case will be of paramount importance to the two former partners but will often raise issues of where the children of the union will reside. Although it may be only the two former spouses before the court, the children's interests will be paramount. Such cases will likely raise division of property issues including pensions, interests in a family business, and the matrimonial home. The additional factor in family disputes is that one or both parties may be unrepresented because they cannot afford a lawyer, adding challenges in ensuring a fair hearing. Tort cases will also involve private parties but may have implications for others such as caregivers in personal injury cases.
The audience for criminal law cases is primarily the accused person and the state. The court must provide due process and fairness for the accused person and ensure that Charter rights are not violated (e.g., the right not to be arbitrarily detained and the right to be tried within a reasonable time). The state and the police have an interest in ensuring a safe and secure society. Those affected by a crime will also have an interest in the outcome of the case, as will their family members and friends. Victim services may have an interest in the verdicts reached and the sentences imposed. Since Aboriginal people are overrepresented in the criminal justice system, and in the numbers of those incarcerated, judges will be speaking to these communities in their judgments and should be knowledgeable of and sensitive to their distinct issues.
The audience for treaty cases generally will be Indigenous peoples, those who occupy their land, or their claimed land, and corporations and government who may seek to engage in resource extraction or make other uses of these lands. Indigenous people may challenge the use of land or may be seeking their fair share of the proceeds. The public will generally have an interest in these cases since their resolution can have broad implications for anyone living on or near Aboriginal land, or claimed land, and those concerned about the environment.
The audience for cases arising in the context of a judicial review from a tribunal will be between the two parties involved. The tribunal will often participate to ensure its institutional interests are represented. Broader societal issues may be at stake, for example if there are constitutional issues raised, in which case the state may also be involved.
The audience for appeals from the Provincial Court will be similar to the respective audiences in criminal and family law cases. With respect to the civil cases, the audience will generally be the immediate parties since the Provincial Court does not hear cases worth more than $25,000.
Charter issues can arise in any of these areas but are most likely to arise in criminal law cases where ss. 7 to 14 issues are prevalent. Charter issues may also arise in judicial reviews, especially s. 15 equality rights and s. 2 freedoms. In these cases, broader societal interests will likely be at stake.
Lastly, the audience to the court's decisions is always broader than the parties to the litigation. Although the decisions must communicate to the immediate parties the reasons for the judge's conclusion, the decision must provide to the appellate courts the reasoning of the trial judge to ensure a basis for appellate review. The audience is still broader: a trial judge's decision will be read by practising lawyers and relied upon or distinguished in future cases; it will be read by other judges on the court who may be deciding similar cases; it may be reported in the media if a case is of broader public interest or is controversial; and it may be studied in law schools.
5. Please describe the personal qualities, professional skills and abilities, and life experience that you believe will equip you for the role of a judge.
I believe my legal experience and academic background, as well as my personal qualities, demonstrate that I have the intellectual ability, the work ethic and the integrity to become a valued member of the judiciary.
As a woman, and as a mother, I have firsthand experience of the difficulties in balancing a demanding career with family life. This has reinforced my view that equality considerations should infuse all aspects of the legal system. In addition, my Métis ancestry has enhanced my understanding of issues facing Aboriginal communities and the need for society to actively engage in ongoing reconciliation.
I have been a lawyer since 1992 and have practiced law for over twenty years. In 1992 I went to Boston to study in a Ph.D. program at Northeastern University in law and public policy. I studied with a prominent labour academic, Professor Karl Klare, whose work has been cited by the Supreme Court of Canada: Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27. In 1995, I began practice with a boutique labour law firm. Over the next three years I continued to work on my dissertation while practicing full-time. Being able to complete a Ph.D. while working full-time demonstrates that I can handle a stressful and intense workload.
While in graduate school I taught two law courses. In the intervening years, I have continued teaching and speaking primarily through the Canadian Bar Association (the “CBA”), Continuing Legal Education of B.C., Lancaster House, the Canadian Association of Labour Lawyers, and the Canadian Association for the Practical Study of Law in Education. A few years ago I was a panelist at the CBA's Labour Section Annual Dinner on the topic of Ethical Questions for Labour Lawyers. I was also a panelist on the topic Ethical and Professional Issues at the Canadian Association of Labour Lawyers' Conference. Although I have spoken on many other topics over the years, being asked to speak to the labour bar on these topics demonstrates that the community has confidence in my leadership regarding ethical and professional issues. Despite this, I have sought input on many occasions from my colleagues as well as Law Society Benchers and Practice Advisors when ethical issues arise.
I believe my extensive teaching and speaking engagements, the co-chairing of conferences, and my regular attendance at professional development seminars also demonstrate my commitment to lifelong learning. This is crucial given constantly evolving social norms and subsequent jurisprudential developments.
I believe that one of my greatest strengths is my ability to reason and to write. A large part of my practice is writing opinions and legal submissions. I have also written legal and academic papers over the course of my career. I particularly enjoy analyzing complex legal issues and trying to synthesize various court and tribunal decisions. I used these skills in drafting two leave applications and three facta to the Supreme Court of Canada. In the first Supreme Court of Canada case (2012) I acted as co-counsel in the capacity of an intervener. In the next two cases (2014 and 2016) I acted as co-counsel for the appellant. In the latter two cases the Court did not reserve its judgment; it ruled from the Bench in our favour. I have been advised that this means that our facta were well written and persuasive.
I believe that I have solid credentials that will make me well suited to become a judge. I have extensive litigation experience through my arbitration experience, acting as counsel before various administrative tribunals (where I have acted for both complainants and respondents), and as counsel before all levels of court. As a member at the BC Labour Relations Board I acted as an independent and impartial adjudicator. In recent years, I have added a number of solicitor duties to my practice.
Throughout my career, I have managed to be an involved parent to my daughter, and helped to raise a stepson. I have also juggled being a part-time caregiver first to my mother (2008-2010) and later to my father (2010-2012) when they were ill and dying. Despite these numerous and varied demands on my time, I have always worked full-time. Moreover, I believe my record shows that despite these external demands my work has not suffered.
I believe my background has prepared me for adjudication and will allow me to bring an impartial and balanced approach to legal issues before the Court. I am open to competing points of view and will approach issues with empathy and an open mind. Moreover, I believe my references will confirm that while I can be assertive if necessary, I find compromises where possible. In this regard, I have a lengthy history of settling cases and successfully engaging in mediation on behalf of my clients. I would be comfortable playing a mediative role on the court including conducting settlement and judicial case conferences.
I believe my references will also confirm that I maintain composure in difficult circumstances and that I have steadfastly avoided any involvement in the politics of the organization in which I am employed. I believe my ability to provide legal advice without becoming embroiled in the politics of the organization demonstrates that I have the ability to remain dispassionate in the fact of controversy and that I have the temperament to be a valued member of the judiciary.
Lastly, I have demonstrated integrity through my insistence on advocating the legal and ethical course of conduct even when my advice is unpopular. I have given advice which goes directly against my clients wishes because I provide what is, in my opinion, the correct legal and ethical course of conduct. I have always taken my role as an officer of the court extremely seriously.
In closing, I believe I have the academic background and legal experience, as well as the work ethic, the temperament and the integrity to serve as a B.C. Supreme Court Judge. Since my daughter is becoming an independent young woman, now is a good time to take on this new challenge and contribute to our justice system.
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 mother who has managed to balance a career with raising a daughter, helping to raise a stepson (who has just finished his undergraduate degree), and being a part-time caregiver to my parents in the years before they passed away. I separated from my husband when my daughter was nine and have been a single parent since that time. Although her father has an ongoing relationship with her, my daughter has always lived full-time with me and I am her primary caregiver. My personal references will confirm that I have maintained a good relationship with my former spouse. We occasionally get together with the kids for family dinners and we continue to celebrate Christmas and birthdays together.
Despite a demanding career, I have always made it a priority to spend time with my daughter. We hike and camp every summer; we ski and snowshoe every winter. My daughter and I also love to travel and have been to the U.S., Mexico, Jamaica, England, Wales, Scotland, France, Holland, Belgium, Germany, Finland, Estonia and Russia. The trip to Finland in 2015 was to see my daughter participate in “World Gymnaestrada”, a team gymnastics event held every four years with participants from all over the world. My daughter and I have also travelled within Canada (many parts of BC, Alberta and Saskatchewan, as well as time spent in Quebec City, Montreal, Toronto and Ottawa). Last summer we spent almost a month in rural Quebec which my daughter loved because she is in French immersion.
My father was born into a Métis community in St. Louis, Saskatchewan. Although both his parents worked outside the home his family lived in poverty since both his parents were employed in low-wage jobs. My father faced discrimination throughout his childhood and he was sometimes referred to as a “half-breed”. In addition, both his parents died when he was a teenager and, because there were no relatives nearby (they had moved to BC), he and his brother were split up and sent to live with two different families. Despite this hardship, my father became the first person in his family to attend university. My father was proud of his Métis background and taught me to respect people from all races and cultures. Because of my father, and his success, l did not suffer discrimination or economic disadvantage growing up.
I do not suggest that I speak for the Métis community. However, listening to my father's stories has given me a much deeper understanding of the challenges facing Indigenous communities and has contributed to my being more sensitive to those who suffer some form of disadvantage. He also was a great role model in demonstrating how education can lift individuals out of poverty and difficult circumstances.
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