The Honourable Mahmud Jamal’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 Mahmud Jamal.
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
Part 6 – Education
Name of Institutions, Years Attended, Degree/Diploma and Year Obtained:
Yale Law School, Yale University, 1993-1994, LL.M. (1994) (Fulbright Scholarship) (emphasis in comparative law, constitutional law, legal history, and antitrust)
Faculty of Law, McGill University, 1989-1993, LL.B. and B.C.L. (1993) (National Program in common law and Quebec civil law)
Trinity College, University of Toronto, 1985-1989, B.A. (1989) (Economics Specialist program)
London School of Economics and Political Science, University of London, 1984-1985
Ross Sheppard High School, Edmonton, Alberta, 1981-1984, International Baccalaureate Diploma (1984)
I have participated in many continuing education programs during my career. Most of the programs that I have spoken at are listed below under "Teaching and Continuing Education". When speaking at a program, I usually attend some of the other sessions. In addition, I have attended the following more substantial skills-development programs (amongst others):
"The Winning Brief”, LawProse Inc., Dallas, Texas (10-week webinar on legal writing taught by Bryan A. Garner), May-August 2016
American Bar Association, Section of Antitrust, International Cartel Workshop, Tokyo, Japan, February 3-6, 2016
"Advanced Legal Writing and Editing", LawProse Inc., Dallas, Texas (one-day course taught by Bryan A. Garner), March 31, 2010
Osgoode Hall’s Intensive Trial Advocacy Course, Toronto, July 1999
Ontario Centre for Advocacy Training, Written Advocacy course (two-day course), Fall 1997
Honours and Awards:
Professional Recognition and Awards:
Lexpert Zenith Award (Platinum) for pro bono litigation involving freedom of religion, 2010
Lexpert’s Top 40 Lawyers under 40 in Canada, 2004
Canadian Who’s Who, 2006-present
Benchmark Canada — Local Litigation Star — Ontario; Leading litigator in class actions, commercial litigation, competition litigation, constitutional litigation, tax litigation, 2012-present
Best Lawyers in Canada — Leading lawyer in administrative and public law litigation, corporate and commercial litigation, 2009-present
Chambers Canada — Leading lawyer in Dispute Resolution (Ontario), 2016-present
Chambers’ & Partners’ Chambers Global: The World’s Leading Lawyers for Business — Leading lawyer in Dispute Resolution (Ontario), 2015-present
Canadian Legal Lexpert Directory — Leading lawyer in public law litigation, class actions litigation, corporate and commercial litigation, 2005-present
Euromoney’s Guide to the World’s Leading Litigation and Product Liability Lawyers, 2016
Legal 500, listed for Dispute Resolution, 2015
Lexpert’s Guide to Canada’s Leading Litigation Lawyers
Lexpert’s Guide to the Leading US/Canada Cross-Border Litigation Lawyers in Canada — Leading lawyer in class actions and competition litigation, 2012-present
Martindale-Hubbell, ranked AV — Preeminent (peer rating reflecting the highest level of professional excellence and ethical standards
Fulbright Scholarship, Foundation for Educational Exchange Between Canada and the United States, 1993-1994
Yale Law School Scholarship, Yale University, 1993-1994
Social Sciences and Humanities Research Council of Canada Graduate Fellowship, 1993-1994
Philip F. Vineberg Travelling Fellowship (shared), Faculty of Law, McGill University, 1993-1994
Thomas Shearer Stewart Travelling Fellowship (shared), Faculty of Law, McGill University, 1993-1994
Dean Ira A. MacKay Prize (highest standing in torts throughout the program), Faculty of Law, McGill University, 1992-1993
Rosa B. Gualtieri Prize, Faculty of Law, McGill University, 1991-1992
Louise McKinney Scholarship (top 2% of Faculty of Law, McGill University), Government of Alberta, 1991-1992
Fern Gertrude Kennedy Prize in Jurisprudence, Faculty of Law, McGill University, 1991-1992
McCarthy Tétrault (Eugène Lafleur) Scholarship (shared), Faculty of Law, McGill University, 1991-1992
Students’ Society of McGill University Award of Distinction, McGill University, 1990-1991
James McGill Award (top 5% of Faculty of Law), Faculty of Law, McGill University, 1991-1992
Dean’s Honour List (top 10% of Faculty of Law), Faculty of Law, McGill University, 1991-1992
Dean’s Honour List (top 10% of Faculty of Law), Faculty of Law, McGill University, 1990-1991
Young Bar Association Prize (highest standing in National Civil Procedure), Faculty of Law, McGill University, 1990-1991
Aga Khan Foundation Scholarship, 1990-1993
Alberta Heritage Foundation Scholarship, Government of Alberta, 1984
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:
Litigation Partner, Osler, Hoskin & Harcourt LLP, 2001 to present
—elected member, Osler’s national Executive Committee (responsible for the firm’s governance and its overall strategic direction) (March 2015-present); member, Osler Vancouver office Evaluation Committee (2014-2015); Chair and Member, Osler’s Pro Bono Committee (2007-present); Co-Chair, Osler Partner Compensation Committee (2011); Member, Osler Partner Compensation Committee (2007)
Litigation Associate, Osler, Hoskin & Harcourt LLP, Toronto, 1996-2001
Law Clerk, Honourable Mr. Justice Charles D. Gonthier, Supreme Court of Canada, 1994-1995
Law Clerk, Honourable Mr. Justice Melvin L. Rothman, Quebec Court of Appeal, 1991-1992 (part-time during law school)
Summer Associate, Davis Polk & Wardwell, New York, summer 1994
Research Assistant, Professor Mirjan Damaška, Sterling Professor of Law, Yale Law School, 1993-1994 (research in comparative law)
Summer Associate, Osler, Hoskin & Harcourt, Toronto, summer 1993
Research Assistant, Professor H. Patrick Glenn, Peter M. Laing Professor of Law, Faculty of Law, McGill University, 1991-1993 (research in comparative law)
Summer Associate, Ogilvy Renault, Montreal, summers 1991 and 1992
Summer Associate, Hicks Morley Hamilton Stewart Storie, Toronto, summer 1990
Summer Student, Government of Alberta and Ackroyd Piasta & Lennie, Edmonton, Alberta, summer 1989 (worked on the reorganization of entities incorporated by Alberta Métis Settlements in preparation for constitutional entrenchment of lands under the Alberta Métis Settlements Act)
Non-Legal Work Experience:
English Tutor, Official Languages Monitor Program, Université du Québec à Montréal, 1990-1992 (part-time during law school)
Teaching Assistant, Department of Economics, University of Toronto, 1987-1988 (macroeconomic theory)
Research Assistant, Professor Samuel Hollander, University Professor, University of Toronto, 1986-1988 (research on history of economic thought and proof-read Professor Hollander’s book, Classical Economics (1987))
Salesclerk, Classic Bookshop, West Edmonton Mall, Edmonton, Alberta, summers 1983, 1984, and 1985
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.
Bar Associations, Judicial-Related, and Other Legal Committees:
Canadian Bar Association, 1996-present
American Bar Association, 2002-present
Advocates’ Society, 1997-present; Advocates’ Society Task Force on Interventions in the Supreme Court of Canada, 2016-present
Canadian Civil Liberties Association, Vice-President and Member of Board of Directors, 2006-present; Treasurer, 2015-present
Osgoode Society for Canadian Legal History, Member of Board of Directors, 2015-present; pro bono legal counsel to the Board, 2005-2015
Advocacy Advisor, Supreme Court Advocacy Institute, 2014-present
Canadian Bar Association, Member, Ad Hoc Committee on Solicitor-Client Privilege in the Legal Profession, 2014
Conference to Commemorate the Federal Court of Canada’s 40th Anniversary, Member of Organizing Committee, National Judicial Institute, 2010-2011
Canadian Bar Association Committee Regarding Proposed Amendments to the Income Tax Act Targeting Solicitor-Client Privilege, Member, fall 2010
Ontario Bar Association, Constitutional, Civil Liberties and Human Rights section, Member of the Executive, 2005-2008
Member of the Selection Committee, Mundell Medal for Excellence in Legal Writing, chaired by the Chief Justice of Ontario (Chief Justices McMurtry and Winkler) (appointed to the Committee by the Attorney General of Ontario), 2005-2008
Canadian Business Law Journal, Trustee, 2012-present
National Journal of Constitutional Law, member of editorial board, 2013-present
Editor-in-Chief, Public Law, Canadian Institute, 2016-present
Editor, Class Actions, Canadian Institute, 2016-present
Global Competition Litigation Review, co-editor for Canada, 2008-2014
Yale Journal of International Law, Member of the Editorial Board, 1994-1995
McGill Law Journal, Case Comments Editor and Member of the Editorial Board, 1990-1992
Moot court competitions:
Laskin Moot Court Competition (bilingual competition), grader of factums (in English and French) and judge, 1999, 2000, 2001 and 2003; co-author of the problem, 1999; member, problem consultative committee, 2016-present
Philip C. Jessup Moot Court Competition in public international law—member of winning team in Canada, 2nd place memorial, 6th place oralist, 1993; member of final four teams in global competition, Washington, D.C., 1993
Pro Bono Activities:
Chair and Member, Osler’s Pro Bono Committee, 2007-present (oversee all pro bono contributions across the firm’s offices in Canada and New York)
Advocacy Advisor, Supreme Court Advocacy Institute, 2014-present (participate in mock appeals of cases pending before the Supreme Court of Canada)
Osgoode Society for Canadian Legal History, legal counsel to the Board (2005-2015)
Pro bono counsel to Canadian Bar Association, Canadian Civil Liberties Association, Federation of Law Societies of Canada, Kids Help Phone, Congress of Aboriginal Peoples, and various individuals
Reported cases argued pro bono:
1. Information and Privacy Commissioner of Alberta v. Board of Governors of the University of Calgary, S.C.C. No. 36373 [reserved, April 2016] [whether regulators can demand access to privileged information] [counsel to Federation of Law Societies of Canada]
2. Karine Lizotte, in her capacity as assistant syndic of the Chambre de l’assurance de dommages v. Aviva Insurance Company of Canada, S.C.C. No. 36373 [reserved, March 2016] [whether insurance regulators can demand documents protected by litigation privilege in Quebec] [counsel to Canadian Bar Association]
3. Attorney General of Canada v. Chambre des notaires du Québec, 2016 SCC 20 [scope of solicitor-client privilege and constitutionality of s. 232(1) of the Income Tax Act] [counsel to Canadian Bar Association]
4. Minister of National Revenue v. Duncan Thompson, 2016 SCC 21 [scope of solicitor-client privilege under the Income Tax Act where lawyers under investigation] [counsel to Canadian Bar Association]
5. Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7 [constitutionality of federal anti-money laundering and terrorist financing legislation encroaching on solicitor-client privilege] [counsel to Canadian Civil Liberties Association]
6. R. v. MacKenzie, 2013 SCC 50 [constitutionality of sniffer-dog search at highway traffic stop] [counsel to Canadian Civil Liberties Association]
7. R. v. Chehil, 2013 SCC 49 [constitutionality of sniffer-dog search at airport] [counsel to Canadian Civil Liberties Association]
8. Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 [whether court’s verbatim adoption of counsel’s written submissions grounds for new trial] [counsel to Canadian Bar Association]
9. A.B. v. Bragg Communications Inc., 2012 SCC 46 [constitutionality of court order permitting cyberbullied youth to litigate anonymously] [counsel to Kids Help Phone]
10. Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2 [constitutionality of rules restricting media activities in courthouses in Quebec] [counsel to Canadian Civil Liberties Association]
11. Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3 [constitutionality of broadcasting ban of evidence tendered in court in Quebec] [counsel to Canadian Civil Liberties Association]
12. Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23 [constitutionality of provincial freedom of information legislation restricting access to privileged information] [counsel to Canadian Bar Association]
13. Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 [whether requirement of photos on drivers’ licenses for Hutterites infringes freedom of religion under the Charter] [counsel to Canadian Civil Liberties Association]
14. Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC [whether Privacy Commissioner can compel production of solicitor-client privileged information] [counsel to Canadian Bar Association]
15. R. v. Bryan, 2007 SCC 12 [constitutionality of Canada Elections Act ban on disseminating election results while polls still open] [counsel to Canadian Civil Liberties Association]
16. Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 [test for removing counsel for inadvertent disclosure of privileged information when executing an Anton Piller order] [counsel to Canadian Bar Association]
17. Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 [whether prohibition against Sikh schoolboy carrying a kirpan at school infringes freedom of religion] [counsel to Canadian Civil Liberties Association]
18. Ardoch Algonquin First Nation v. Canada (Attorney General), 2003 FCA 473 [whether federal employment program for off-reserve and non-status Aboriginal peoples infringed s. 15 of the Charter] [counsel to Congress of Aboriginal Peoples]
19. Canada (Attorney General) v. Misquadis, 2003 FCA 370 [Crown’s motion to strike out intervener’s memorandum of argument in appeal involving equality rights of Aboriginal peoples] [counsel to Congress of Aboriginal Peoples]
20. Slobodan Lemez, M.D. v. College of Physicians and Surgeons of Ontario, Health Professions Appeal and Review Board, 2002-2003 [counsel to a Bosnian-trained medical doctor who came to Canada as a refugee in 1993, passed Canadian licensing exams for medical practice, but was denied a certificate of registration authorizing independent practice in Ontario]
21. Ramlall v. International Medical Graduate Program (Ontario),  O.J. No. 4872 (Div. Ct.) [counsel to a foreign-trained medical doctor in judicial review of retrospective rule-making by medical licensing body]
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).
Co-Director, LL.M. Program in Administrative Law, Osgoode Hall Law School, 2007-present
Instructor, Administrative Law Remedies (intensive course), LL.M. Program in Administrative Law, Osgoode Hall Law School, 2007-present (course taught every other year)
Instructor, Comparative Constitutional Law (full-semester seminar course), Faculty of Law, McGill University, January to May, 2000
Instructor and Grader, Public Law, Bar Admission Course, Law Society of Upper Canada, 2000, 2001, 2002, and 2003
Past guest instructor at McGill Faculty of Law, University of Toronto Law School, Osgoode Hall Law School, UBC Law School, University of Ottawa Law School (Common Law), and Ryerson University
Continuing Education Presentations:
Presentations to the following organizations (complete list of presentations appears below):
- Access Privacy
- Advocates’ Society
- American Bar Association
- Association of Canadian Studies
- Association of Corporate Counsel
- British Columbia Continuing Legal Education Society
- British Columbia Information and Privacy Commissioner
- Canadian Association of Law Librarians
- Canadian Bankers Association
- Canadian Bar Association
- Canadian Bar Association, Prince Edward Island Branch Canadian Institute
- Congress of Aboriginal Peoples
- Department of Justice (Canada)
- Faculty of Law, McGill University
- Federation of Asian Canadian Lawyers
- Investment Advisors’ Industry Association
- Law Society of Upper Canada
- National Judicial Institute
- Ontario Bar Association
- Ontario Crown Lawyers’ Conference
- Osgoode Hall Law School
- Osgoode Hall Continuing Legal Education
- Pacific Business and Law Institute
- Ryerson University
- Society of Trusts and Estate Practitioners
- University of British Columbia Law School
- University of Ottawa, Faculty of Law (Common Law)
- University of Toronto Faculty of Law
1. "Ethical Issues in Class Actions", Class Actions for Litigators, Law Society of Upper Canada, November 15, 2016 [upcoming]
2. Commentator, "The Court Jurisdiction and Proceedings Transfer Act: A Decade of Progress", conference by invitation at the University Club, Toronto, October 21, 2016
3. "Suing for Statutory Breach: Whither Wakelam?", Canadian Class Actions Conference", B.C. Continuing Legal Education Society, Vancouver, February 26, 2016
4. "The Costs Rule for Class Actions in Ontario", Canadian Class Actions Conference, B.C. Continuing Legal Education Society, Vancouver, February 26, 2016
5. "The Marcotte Decision: Where Do We Go From Here?", Canadian Institute, 21st Annual Conference on Regulatory Compliance for Financial Institutions, Toronto, December 11, 2015
6. "The Best Defence is a Good Offence: Options for Defeating Class Actions at an Early Stage", Osler’s Class Actions Forum, Toronto, October 1, 2015
7. "Recent Privacy Developments from the Supreme Court of Canada", Access Privacy, Toronto, June 17, 2015
8. "The Supreme Court and Freedom of Religion", Federation of Asian Canadian Lawyers’ Conference — Multiculturalism and the Charter, Toronto, September 27, 2014
9. "Implications of the Supreme Court’s Decision in Spencer", B.C. Information and Privacy Commissioner, Victoria (by videoconference), July 17, 2014
10. "Implications of the Supreme Court of Canada’s Decision in Spencer", Access Privacy, Toronto, June 25, 2014
11. "Cross-Border Issues in Solicitor-Client Privilege", Association of Corporate Counsel, Toronto, June 19, 2014
12. Panelist, Ontario Crown Lawyers’ Conference, Toronto, June 2, 2014
13. "Constitutional Issues in Banking Litigation", University of British Columbia Law School, Vancouver, March 6, 2014
14. "Critical Update on Solicitor-Client Privilege Issues and How They Impact You", Ontario Bar Association, Professionalism Issues for Business Lawyers, Toronto, October 21, 2013
15. "Constitutional Law and Banking", Canadian Bankers Association, Toronto, September 19, 2013
16. Panelist, Legal Ethics, Ontario Crown Lawyers’ Conference, June 19, 2013
17. "Risk Management for Litigators", Canadian Bar Association, Skilled Lawyer Series, Canada-wide (webcast), June 4, 2013
18. "Ethical and Professional Issues In Litigation For and Against the Crown", 9th Annual Osgoode Crown Liability Conference, Toronto, February 27, 2013
19. "Some Recent Developments in Solicitor-Client Privilege in Canada", Advocates’ Society Spring Symposium, Toronto, May 5, 2012
20. "Charter Damages: A Primer", Law Society of Upper Canada, Toronto, March 27, 2012
21. "Discovery Questioning: Strategy and Techniques", Canadian Bar Association, Skilled Lawyer Series, Canada-wide (webcast), February 15, 2012
22. “Reference Re Securities Act: Comment on Lee and Schneiderman”, University of Toronto Law School Conference on the Securities Reference decision, Toronto, January 30, 2012
23. "Recent Developments in the Division of Powers", Osgoode Hall Law School, class on The State and the Citizen (invited by Dean Lorne Sossin), Toronto, November 23, 2011
24. ’"Secret Evidence’ and s. 38 of the Canada Evidence Act: Ensuring the Constitution is Not a Suicide Pact", National Judicial Institute, Federal Court of Appeal and Federal Court, Conference to Commemorate 40th Anniversary of the Federal Court of Canada, Ottawa, October 27 and 28, 2011
25. "The Supreme Court and the Securities Reference", Investment Advisors’ Industry Association, Toronto, September 8, 2011
26. Debate with Professor Adam Dodek on Solicitor-Client Privilege, Canadian Bar Association Annual Meeting, Halifax, Nova Scotia, August 14, 2011
27. "The Supreme Court of Canada and Solicitor-Client Privilege", Canadian Bar Association, Prince Edward Island Branch, Charlottetown, Prince Edward Island, June 17, 2011
28. "Current Issues in the Law of Privilege", Society of Trusts and Estate Practitioners’ National Conference, Toronto, June 3, 2011
29. "Developments in the Open Court Principle: Canadian Broadcasting Corp. v. Canada (Attorney General)", Osgoode Hall’s 2010 Constitutional Cases — The 14th Annual Analysis of the Constitutional Decisions of the SCC, Toronto, April 15, 2011
30. "The Law of Solicitor-Client Privilege in Canada", American Bar Association, Spring Meeting of International Law, Washington, D.C., April 6, 2011
31. "Excelling at Motion Argument", Canadian Bar Association, Skilled Lawyer Series, Canada-wide (webcast), March 1, 2011
32. "Class Actions and Arbitration Agreements", University of Toronto Law School, Toronto, March 2, 2011
33. Moderator, "Social Media, Defamation, and the Crown", Osgoode Hall’s 7th Annual Conference on Crown Liability, Toronto, February 18, 2011
34. "Constitutional Aspects of National Class Actions", University of Toronto Law School (invited by Professors Jacob Ziegel and Garry Watson), Toronto, February 2, 2011
35. "An Introduction to Civil Litigation", Ryerson University, Toronto, December 3, 2010
36. Moderator, panel on Good Faith in Contract Law, 40th Annual Workshop on Consumer and Commercial Law, University of Toronto Law School, Toronto, October 15, 2010
37. "Canada: The Constitution and the Charter", Canadian Association of Law Librarians’ Conference, Joint Study Institute, Montreal, June 21, 2010
38. "Arbitration Clauses and Class Actions", University of Toronto Law School (invited by Professors Jacob Ziegel and Garry Watson), Toronto, October 28, 2009
39. Moderator, "Revisiting the s. 1 Oakes Test: Time for a Change?", Ontario Bar Association, 8th Annual Charter Conference, Toronto, September 18, 2009
40. "Recent Developments in Freedom of Religion", Ontario Bar Association, 8th Annual Charter Conference, Toronto, September 18, 2009
41. "The Future of Law", Meredith Memorial Lectures, Faculty of Law, McGill University, Montreal, February 12, 2009
42. “The Supreme Court of Canada and Freedom of Religion: Some Lessons from Multani”, Federation of Asian Canadian Lawyers, Asian Heritage month, Toronto, November 8, 2008
43. Moderator, panel on Discrimination and Equality Rights, Ontario Bar Association, 7th Annual Charter Conference, Toronto, September 26, 2008
44. "Non-Charter Constitutional Law Developments, 2007-2008", Ontario Bar Association, 7th Annual Charter Conference, Toronto, September 26, 2008
45. "The Supreme Court of Canada and Freedom of Religion: Some Lessons from Multani", Department of Justice (Canada), Negotiating Multiculturalism: Its Impact on the Charter and Human Rights, Toronto, May 9, 2008
46. "Class Actions and Arbitration Clauses", University of Toronto Law School (invited by Professors Jacob Ziegel and Garry Watson), Toronto, March 5, 2008
47. "Recovering Unlawful Taxes After Kingstreet Investments", 4th Crown Liability Conference, Osgoode Hall Law School, Toronto, November 15, 2007
48. "Everything Else: Non-Charter Constitutional Developments, 2006-2007", Ontario Bar Association Charter Conference, Toronto, September 28, 2007
49. Moderator, Panel on the Supreme Court’s Decision in Hislop, Ontario Bar Association, Toronto, June 4, 2007
50. "The Supreme Court and Freedom of Religion: Some Lessons from Multani", Law Society of Upper Canada, Forum on Multiculturalism and the Charter: 25 Years and Beyond, Toronto, May 24, 2007
51. "Understanding and Managing Regulatory Investigations", Osgoode Hall Law School, Toronto, April 23, 2007
52. "The Supreme Court of Canada and Solicitor-Client Privilege: What Every Practitioner Needs to Know" (updated), Canadian Bar Association, Canada-wide (webcast), February 28, 2007
53. "Litigating Aboriginal Law Cases: Advance Costs Orders, Evidentiary Issues and Procedural Hurdles", Aboriginal Law and Consultation, Canadian Institute, Toronto, February 14, 2007
54. Moderator, "Dealing with the Media When Suing or Defending the Government", Osgoode Hall’s Third Conference on Crown Liability, Toronto, November 30, 2006
55. "Recovering Unlawful Taxes and Other Suits Against Government for Unjust Enrichment: Recent Guidance from the Supreme Court of Canada", Osgoode Hall’s Third Conference on Crown Liability, Toronto, November 30, 2006
56. "The Supreme Court of Canada on Solicitor-Client Privilege: What Every Practitioner Needs to Know", Canadian Bar Association, Canada-wide (webcast), November 29, 2006
57. "Class Actions and Arbitrations", 36th Annual Workshop on Consumer and Commercial Law, University of Toronto Law School, Banff, Alberta, October 28, 2006
58. "Pragmatic Practices for Protecting Privilege," Association of Corporate Counsel, San Diego, California, October 23, 2006
59. "Freedom of Religion in the Supreme Court: Some Lessons from Multani", Ontario Bar Association, 5th Annual Chatter Conference, September 29, 2006
60. "Class Actions and Arbitration", Canadian Institute, 7th Annual Litigating Class Actions conference, Toronto, September 26, 2006
61. "Class Actions in Ontario: Some Recent Developments", Canadian Institute, 7th Annual Litigating Class Actions conference, Toronto, September 26, 2006
62. "Class Actions and Aboriginal Litigation", Law Society of Upper Canada, National Aboriginal Day 2006 Celebration, Toronto, June 7, 2006
63. "The Constitution in Regulatory Investigations and Proceedings", Ontario Bar Association, Toronto, May 5, 2006
64. "Treaty Interpretation After R. v. Marshall; R. v. Bernard", Osgoode Hall’s 2005 Constitutional Cases, Toronto, April 28, 2006
65. "In-House Counsel and Solicitor-Client Privilege: A Canadian Perspective", American Bar Association International, Spring Meeting, New York, New York, April 7, 2006
66. "In-House Counsel and Solicitor-Client Privilege", Ontario Bar Association Corporate Counsel Section, Toronto, December 7, 2005
67. "How to Sue Government in Unjust Enrichment: Recent Guidance from the Supreme Court of Canada", Osgoode Hall, Crown Liability Conference, Toronto, November 15, 2005
68. "Is PIPEDA Constitutional?", 35th Annual Workshop on Consumer and Commercial Law, University of Toronto Law School, Toronto, October 22, 2005
69. "Recent Developments in Section 1 of the Charter: N.A.P.E. and Orbanski; Elias", Ontario Bar Association, 4th Annual Charter Conference, Toronto, September 30, 2005
70. "Treaty Interpretation After Bernard and Marshall", Pacific Business and Law Institute, Canadian Aboriginal Law: The Shifting Paradigm, Ottawa, September 21, 2005
71. "How to Sue Government: Recent Developments in Damages for Bad Faith Decision-Making and Restitution", Osgoode Hall, Crown Liability Conference, Toronto, April 21, 2005
72. "Legislative Facts in Charter Litigation: Where Are We Now?", 3rd Annual Charter Conference, Ontario Bar Association, Toronto, October 15, 2004
73. "Recent Developments in Section 7 of the Charter", Canadian Institute, National Forum on Constitutional Litigation in Civil Matters, Toronto, June 18, 2004
74. "In-House Counsel and Solicitor-Client Privilege", Canadian Corporate Counsel Association, Toronto, May 5, 2004
75. "Administrative Tribunals and the Constitution: The Supreme Court’s Decision in Nova Scotia (Workers’ Compensation Board) v. Martin", Ontario Bar Association, The Constitution in Your Administrative Law Practice, Toronto, March 2, 2004
76. "Constitutional Remedies: Some Recent Developments", Ontario Bar Association, 2nd Annual Charter Conference, Toronto, October 9, 2003
77. "Constitutional Issues in Canadian Competition Litigation", Canadian Bar Association, Annual Fall Conference on Competition Law, Ottawa, September 3, 2003
78. "Recent Developments in the Division of Powers", Canadian Institute, National Forum on Constitutional Litigation in Civil Matters, Toronto, June 2, 2003
79. "The Constitutionalization of Solicitor-Client Privilege" (co-author), Osgoode Hall, Constitutional Cases Conference, April 4, 2003
80. "The Supreme Court’s New Functional-Structural Approach to Remedial Jurisdiction Under the Charter", Ontario Bar Association, First Annual Charter Conference, Toronto, October 10, 2002
81. "Legislative Facts", Association of Canadian Studies, 20th Anniversary of the Charter, Ottawa, April 2002
82. “Class Actions and Aboriginal Litigation”, Congress of Aboriginal Peoples conference, Ottawa, March 2002
83. Panelist, "Arbitration on a Global Scale", American Bar Association, Annual Meeting, Toronto, August 1998
Community and Civic Activities:
List all organizations of which you are a member and any offices held with dates.
See above, under "Other Professional Experience," for community-related legal committees
Yale Alumni Schools Committee, 2015-present (interview Toronto-area students applying for undergraduate admission to Yale University)
Soccer coach, Lawrence Park Athletic Association, 2007-2011
Soccer coach, North Toronto Soccer Association, 2007-2010
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 represented a wide range of clients—many pro bono—and have often fought to secure fundamental rights and freedoms before the courts. In doing so, I have tried to contribute to our collective understanding of complex areas of the law, including the evolving legal landscape of the Charter.
It is a privilege to be an advocate for any client—to be called in aid of another. But lawyers can derive special meaning by doing pro bono work, by helping clients secure access to justice or change the law for the better. Such work can allow lawyers to transcend quotidian concerns and join in something larger than themselves. That has certainly been true for me.
I was first attracted to pro bono work during law school, in the early 1990s. At the time, I was an upper-year student in law school, and my client was an immigrant student teacher from Africa, whom I represented before the McGill Senate Committee on Student Grievances. She was a mature student, seeking to re-qualify as a teacher in Canada, but she had become entangled in the university’s bureaucracy during her student practicum at a local school. She had experienced elements of racial discrimination, but did not want that to be the focus of her case. In the course of the proceedings, after my somewhat formalistic legal arguments, factual issues arose that only my client could answer. Through the course of questioning by the panel, it gradually emerged that she had been the victim of discrimination. As the room fell silent, it was obvious that she had won her case. This case didn’t create new law or establish a precedent; it was purely factual. But it was meaningful because it allowed my client to continue to serve in her chosen profession in her new home, Canada.
I subsequently joined a law firm with a strong tradition of supporting pro bono practice, and which had litigated numerous pro bono cases before the Supreme Court. These included the very first Charter case decided by the Court, Law Society of Upper Canada v. Skapinker (1984), which considered whether non-citizens could be prohibited from being called to the Ontario bar, and Schachter (1992), which found that the federal government’s decision to deny natural parents the same benefits as adoptive parents was discriminatory. In this environment, I started doing pro bono work early in my career, and have continued ever since. In my first such case (1998), I represented a foreign-trained medical doctor to judicially review retrospective rule-making by a medical licensing body that had hampered him from re-qualifying in Canada. I later went on to represent other physicians pro bono, including a foreign-trained doctor from Bosnia who had come to Canada as a refugee, passed his Canadian licensing exams, but was still unable to re-qualify, even after my best efforts (2002-2003). I expect that I saw in these and other clients something of my own family’s experiences: the challenges of contributing to and integrating into a new land, the hope of pursuing one’s calling, and the dream of a better life for one’s children.
I came to view pro bono appeal cases as an opportunity to assist clients, to help shape the law, and perhaps to change societal attitudes. Over time, I represented clients that advanced the equality rights of Aboriginal peoples, the civil liberties of all Canadians, and the rights of children.
I represented the Congress of Aboriginal Peoples, as an intervener before the Federal Court of Appeal in a challenge to a federal Aboriginal employment program, which the Court found to have discriminated against urban and off-reserve Aboriginal peoples contrary to s. 15(1) of the Charter (2003).
I have also represented the Canadian Civil Liberties Association as an intervener in several cases before the Supreme Court, initially in cases dealing with the freedom of religion—the Multani case (2006), where the Court found that a school board’s decision to prohibit a Sikh schoolboy from wearing a kirpan at school, in accordance with the tenets of his faith, unjustifiably infringed his right to freedom of religion; and the Hutterian Brethren case (2009), where a 4-3 majority of the Court held that Alberta’s decision to no longer accommodate non-photo drivers’ licences for Hutterites was a justifiable infringement of their freedom of religion. I also represented the CCLA before the Supreme Court in cases dealing with the open courts principle (2011), the use of sniffer-dogs at airports and highway-traffic stops (2013), and the protection of solicitor-client privilege (2015). More generally, for past ten years I have served on the CCLA’s board of directors, helping the organization shape legal strategy on some of its key interventions before the Supreme Court.
I have also had the opportunity to represent Kids Help Phone, a national counselling service for young people, as an intervener when the Supreme Court allowed a young victim of cyberbullying to litigate against her abuser anonymously in order to prevent further victimization (2012).
I have also been fortunate to have represented the Canadian Bar Association and the Federation of Law Societies in several appeals before the Supreme Court dealing with the protection of solicitor-client privilege, litigation privilege, and other issues affecting the legal profession. The Court has rightly emphasized that solicitor-client privilege is a foundation of the justice system and promotes access to justice. All lawyers know this, and see it in their practices every day. It has therefore been particularly meaningful for me to be entrusted to speak on behalf of Canadian lawyers and legal regulators, as the Supreme Court charted the future direction of the law.
Each of these cases helped shape the law and contributed to the fair administration of justice in Canada.
Today, as the chair of our firm’s national pro bono program, I see lawyers every day across our firm’s offices in Vancouver, Calgary, Toronto, Ottawa, Montreal, and New York, contribute their time and their passion to their communities. While there is always more to be done, it makes me very proud to be a lawyer.
2. How has your experience provided you with insight into the variety and diversity of Canadians and their unique perspectives?
My personal history and professional life have exposed me to a broad range of Canadians in all walks of life. I have studied, lived, and worked in three provinces, and visited many regions of Canada, either to argue in court or to speak on legal topics. My experiences have taught me about the challenges and aspirations of immigrants, visible minorities, and some of the Indigenous peoples in Canada; about Quebec’s distinctiveness within Confederation and the huge benefits of being able to work with both the common law and Quebec civil law and in both official languages; and finally, about the diversity but essential unity of Canada, its peoples, and the Canadian legal profession.
I was born in Nairobi, Kenya in 1967 into an Indian Muslim family of Ismailis. In the late 1960s, my family emigrated to a small village in northern England. Since I attended Anglican schools, I was raised by day as a Christian, reciting the Lord’s Prayer and absorbing the values of the Church of England, and by night as a Muslim, memorizing Arabic prayers from the Quran and living as part of the English Ismaili diaspora. In 1981, my family uprooted once again, in search of a better life, and came to Canada. We settled in Edmonton, Alberta, where I completed high school. There, I was fortunate to have had exceptional instruction in French—which would later prove instrumental in my legal career. I was the first member of my family to attend university, first spending a year at the London School of Economics, before obtaining an undergraduate degree in economics from the University of Toronto. I then moved to Montreal, and completed the National Program in common law and Quebec civil law at McGill. Finally, I pursued a graduate law degree at Yale Law School, where I was fortunate to study with the great constitutional jurist, Justice Aharon Barak (later President) of the Supreme Court of Israel.
My wife also came to Canada as a teenager, in her case as a refugee from Iran, via the Philippines, after fleeing the religious persecution of Iran’s Bahá’í community during the Iranian Revolution. Her family was also welcomed by Canada, settling in Innisfail, Alberta. I have since become a Bahá’í, attracted by the faith’s message of the spiritual unity of humankind, and we are raising our two children in Toronto’s multi-ethnic Bahá’í community.
These personal experiences have unavoidably exposed me to some of the challenges, interests, and aspirations of immigrants and visible and religious minorities as they seek to integrate their families into Canada. These experiences of the diversity of Canadians have been broadened and deepened over the course of more than 20 years of professional life.
My professional life has provided me with several opportunities to work with some of the Indigenous peoples in Canada. In the summer before law school, I worked for the Government of Alberta and an Edmonton law firm on a project to assist Alberta’s Métis settlements begin to transition to self-government under the Métis Settlements Act. I had the opportunity to drive across Alberta to meet with each of the various Métis community councils to research the different corporate structures used as part of their internal community governance. Later, as a lawyer, I represented the Congress of Aboriginal Peoples, as an intervener before the Federal Court of Appeal, to help secure the equality rights of these Indigenous peoples, through a successful challenge to a federal Aboriginal employment program that had discriminated against urban and off-reserve Aboriginal peoples contrary to s. 15(1) of the Charter. But I have also represented resource interests in Aboriginal litigation—in treaty rights, Aboriginal title, and duty to consult cases—before the New Brunswick Court of Queen’s Bench, New Brunswick Court of Appeal, Supreme Court of Newfoundland and Labrador (Trial Division), and Supreme Court of Canada. These cases have allowed me to study and gain a deeper understanding of the history, customs, and traditions of some of the Indigenous peoples in Canada, particularly in Atlantic Canada.
[Text is provided in language of submission. Translation in italic is available below.]
[J’ai aussi vécu auprès des Québécois et apprivoisé la culture distinctive du Québec et de sa tradition juridique. Je compte l’occasion d’avoir étudié la common law et le droit civil québécois à l’Université McGill à la fin des années 1980 et au début des années 1990 comme l’une des circonstances les plus chanceuses de ma vie. J’ai considérablement amélioré mon français juridique par l’apprentissage du droit québécois, en travaillant pendant deux étés au cabinet d’avocats Ogilvy Renault à Montréal, et en occupant le poste d’auxiliaire juridique auprès de M. le juge Melvin Rothman à la Cour d’appel du Québec. Après la faculté de droit, j’ai occupé le poste d’auxiliaire juridique auprès d’un autre juriste québécois de premier plan, M. le juge Charles Gonthier de la Cour suprême du Canada. À cette occasion, j ’avais été certifié à titre d’auxiliaire juridique bilingue. Ces expériences ont jeté les bases de ma vie professionnelle, me permettant de pratiquer en français, de plaider devant les tribunaux québécois, tant en première instance qu’en appel, et de plaider dix appels provenant de la province du Québec devant la Cour suprême du Canada, comme avocat pour une partie ou pour une intervenante. Ces opportunités ont inculqué en moi une plus grande sensibilité aux intérêts des Québécois, et une croyance dans la force et l’unité du Canada, non pas en dépit de nos différences, mais bien grâce à celles-ci.]
I also lived with Quebecers and learned about the distinctive culture of Quebec and its legal tradition. The opportunity to study common law and Quebec civil law at McGill University in the late 1980s and early 1990s was one of the luckiest circumstances in my life. I improved my legal French considerably by learning Quebec law, working for two summers at the law firm of Ogilvy Renault in Montreal, and clerking for Mr. Justice Melvin Rothman at the Quebec Court of Appeal. After law school, I clerked for another leading Quebec jurist, Mr. Justice Charles Gonthier of the Supreme Court of Canada. At that time, I was certified as a bilingual law clerk. These experiences laid the foundation for my professional life, allowing me to practise in French, to plead before the Quebec courts at both the trial and appellate levels, and to argue ten appeals from the province of Quebec before the Supreme Court of Canada, either as counsel for a party or for an intervener. These opportunities have instilled in me a greater sensitivity to the interests of Quebecers and a belief in the strength and unity of Canada, not in spite of our differences, but because of them.
Finally, I have been fortunate to have enjoyed a national legal practice, one that has allowed me to appear before the courts of almost every province in the country. This was made possible first by the Supreme Court’s acceptance of interprovincial law firms in Black v. Law Society of Alberta (1989), and later by the Interjurisdictional Practice Protocol (1994) and National Mobility Agreement (2002) concluded by the Federation of Law Societies. The gradual erosion of interprovincial barriers to legal practice has allowed me—and many others—to work closely with lawyers and judges across Canada, deepening my conviction in the diversity but essential unity of the country, its peoples, and the legal profession.
3. Describe the appropriate role of a judge in a constitutional democracy.
In answering this question, I do not start from a blank slate. Canada has a rich tradition of legal and political theory, articulated in decisions of the Supreme Court of Canada itself, that elucidates the appropriate role of a judge in a constitutional democracy.
Our constitutional democracy is based on Parliamentary government, involving representative institutions elected by the people at both the federal and provincial levels. As the Supreme Court has noted, in our system, "it is the elected representatives of the people who enact legislation." But ours is not, and never has been, a system of "simple majority rule." As McLachlin C.J. has noted, in a constitutional democracy such as ours, "all government power must be exercised in accordance with the Constitution."
In this context, the judge’s task is to adjudicate disputes fairly and impartially according to law, and in particular, to adjudicate disputes about the scope and limits of government power when these issues come before the courts. In essence, a judge is—to quote Justice Binnie —"a constitutionally mandated referee."
Judges did not acquire this role as the country’s constitutionally mandated referees with the enactment of the Charter in 1982. Our courts have in fact been adjudicating constitutional cases about the limits of governmental power since the country’s founding in 1867—in cases dealing with the division of powers between Parliament and the provinces, the constitutional prerogatives of the Crown, and in judicial reviews of governmental action. The Charter did, of course, place important new limits on government power and Parliamentary sovereignty, and therefore imposed correspondingly new responsibilities on the courts to oversee those limits. But throughout the judicial role has remained essentially the same.
In exercising this referee role, a judge is not—and must not be seen to be—limiting or hampering the freedom of duly elected legislatures to do their important work. As Cory J. has underscored, "it is not the courts which limit the legislatures. Rather, it is the Constitution, which must be interpreted by the courts, that limits the legislatures." Lest there be any doubt about the legitimacy of constitutional review by the courts, it must be remembered that the courts did not arrogate to themselves this important role and responsibility. It was, rather, entrusted to them by the people, through their elected representatives, and ultimately by the Constitution.
In exercising their mandates, judges do not have agendas, political or otherwise. Judges do not select areas for law reform based on their personal views. Rather, they wait for cases to come before the courts, and then discharge their duty to adjudicate in accordance with the law. To quote Cory J. again: "Citizens must have the right to challenge laws which they consider to be beyond the powers of the legislatures. When such a challenge is properly made, the courts must, pursuant to their constitutional duty, rule on the challenge."
But in ruling on such disputes, courts must remain mindful of their relatively modest role in the process of law reform. As Chief Justice McLachlin has cautioned, "in a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility of law reform." While courts must not shirk their constitutional responsibilities to uphold the rights guaranteed in the Charter and to apply the Constitution as a "living tree" to the evolving social, political, and economic fabric of the country—and, in doing so, may develop the law significantly—they do so in the limited context of a single case, often with limited information about the social and policy consequences of their decisions. For this reason, courts should develop the law cautiously and incrementally, properly leaving major revisions to the legislature where possible. To quote Chief Justice McLachlin again: rather than being a "judicial cowboy riding amok through the carefully planted legislative garden [. . . ] [t]he judge is more like a gardener, shaping and nurturing plants so that they grow as intended, occasionally pulling out a weed that offends the plan on which the garden is based."
Such appropriate judicial modesty arises from the separation of powers between the legislative, executive, and judicial branches of government. Each branch must respect the distinct and complementary institutional capacities of the others—a failure to do so can leave each branch being unable to fulfill its proper role.
Lastly, in order for the judge’s role as a constitutionally mandated referee to be effective, there must be judicial independence. This includes both individual independence (involving qualities attaching to the individual judge) and institutional independence (requiring that the courts be, and appear to be, independent of the other branches of government). Judicial independence, in the words of LeBel J., "serves to maintain public confidence in the court system and the rule of law," and prevents "interference by the executive and legislative branches in the exercise of judicial powers." It is, in short, a foundation of our constitutional democracy.
4. Who is the audience for decisions rendered by the court(s) to which you are applying?
A judgment of the Ontario Court of Appeal has many audiences, all of which must be considered as reasons are prepared. The Court’s cases can be conveniently divided into "error correcting" appeals, which involve the application of settled law to the facts and often impact only the particular parties before the Court; and "jurisprudential appeals", where the law may need to be developed and which may have broader jurisprudential impact. Since very few cases reach the Supreme Court of Canada, for the vast majority of cases the Ontario Court of Appeal is effectively the final court of appeal.
Chronologically, a Justice writes first for the other Justices—colleagues who must be persuaded if the reasons are to form a majority. Justice William Brennan famously said that the most important rule at the U.S. Supreme Court is the "rule of five", because without five justices there can be no majority. A similar rule applies at any appellate court, including the Ontario Court of Appeal. One’s colleagues must be persuaded if reasons are to carry a majority.
Next, the Court’s audience includes the parties, whose dispute provided the occasion and the setting for the questions raised by the case. An appeal to the Ontario Court of Appeal is often the culmination of years of litigation, conducted at great expense. The Court must be—and I think always is—mindful of, and respectful to, the litigants. The parties must be persuaded, to the extent reasonably possible, that they have been heard and their arguments understood.
The Court’s audience also necessarily includes the myriad participants in the justice system—legal actors, such as trial and other appeal courts, administrative tribunals, lawyers, and self-represented litigants, but also non-legal actors, such as police officers, victims’ advocates, and mental health professionals, to name but a few. All are entitled to expect clear and principled guidance on what the law is and how it is to be applied.
Especially in public law cases, the Court’s audience includes governments—federal, provincial, and municipal—who need to understand the contours of the state’s authority as they discharge their important mandates to formulate public policies, draft legislation, and apply the law. They need direction as to the division between federal and provincial powers, and guidance on the scope and limits of the fundamental rights and freedoms guaranteed in the Charter. Through its decisions, the Court’s role also includes a constructive and mutually respectful dialogue with the executive and legislative branches of government. Such dialogue helps to improve our constitutional democracy and promotes the rule of law.
More generally, the Court’s audience always includes members of the public, who have a legitimate expectation of understanding how their province’s highest court is grappling with some of the most pressing legal issues of the day. The Court’s decisions must be reasonably intelligible and accessible to them, in order to maintain public trust and confidence in our justice system.
Another important audience of the Court’s output is the legal academy. Through constructive commentary, legal academics can and often do help the Court improve the law. The Court’s rulings can also serve as pedagogy, providing instruction to law students as a primary source for learning the law.
But the Court also writes for future generations of the Court itself. Because our system of law is built on precedent, decisions today will often control—or at least strongly guide—decisions tomorrow. While there is perhaps a liberating truth in Justice Barak’s observation that "judges write on ice", there is usually a reasonable time period before the thaw.
This list of audiences, which is not hierarchical, largely covers the scope of readers within the province. But the Court’s decisions are also closely scrutinized in other provinces and often even abroad. The Ontario Court of Appeal is widely respected and cited by courts across the country and around the world, in part because Canada is extolled as a shining example of how a modern democracy can accommodate a peaceful pluralism.
In speaking simultaneously to this multitude of audiences, the Court’s decisions must strive to be clear yet concise. While this is no doubt a challenging task, it is one that the Court has in the past accomplished.
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 have spent much of my professional lifetime in appellate courts. Before being called to the Ontario bar, I clerked for a justice of the Quebec Court of Appeal, and later for a justice of the Supreme Court of Canada. Since that time, over the past 21 years the most significant part of my litigation practice has been before appeal courts across Canada—including the Ontario Court of Appeal, Ontario Divisional Court, British Columbia Court of Appeal, Alberta Court of Appeal, Quebec Court of Appeal, New Brunswick Court of Appeal, Federal Court of Appeal, and the Supreme Court of Canada. These experiences have allowed me to get to know many appellate judges across Canada and given me visibility into their work and how they serve the public.
In terms of personal qualities, all of the appellate judges I have known have been persons of integrity and had deep respect and consideration for others. I hope that my partners, professional colleagues, and members of the bench and bar would view me that way. My partners have shown trust in me in electing me to the firm’s national Executive Committee, a body that runs our firm of more than 400 lawyers in six cities, and in previously allowing me to serve terms on our national compensation committee (including as co-chair). I have also been honoured that national legal organizations, such as the Canadian Bar Association and the Federation of Law Societies of Canada, have allowed me to speak on their behalves in numerous appeals before the Supreme Court of Canada.
Many of the appellate judges I have known have also had varied personal and professional experiences that have allowed them to develop a sense of empathy for others and to appreciate a diversity of perspectives, particularly those of minority and socially and economically disadvantaged groups. As noted above in response to question 2, my life experiences have exposed me to a wide range of Canadians and to many different perspectives. While I have spent my career at a large law firm, I have always interacted with many other people from varied social and economic groups, both in my pro bono work and in the other capacities in which I have served legal and non-legal organizations. I have tried to never forget where I came from or my responsibilities to the broader community.
I also hope that I have an open mind—I would certainly not bring any political or other agenda to the judicial role. I would strive to decide cases fairly and impartially according to law. I have also tried to do this as a lawyer. My goal in arguing any case is to present it in a way that will attract the judicial mind, and to do that I try to put myself in the shoes of how an impartial adjudicator would approach the case—to see my client’s facts and circumstances as others may see them.
Perhaps most importantly, I have learned that it is often more important to listen than to speak. A lawyer learns this early on in legal practice: it is essential to listen to clients, to hear what they have to say. I cannot communicate my clients’ perspectives effectively unless I do this. I have also learned to listen to opposing counsel, both before the case gets to court (with a view to settling the case), and in court (so as to better respond). And, of course, a lawyer must learn to listen to the court, despite the adrenalin-fueled excitement during the flow of legal argument, in order to more effectively address the court’s concerns. A capacity to listen is essential for any judge.
In terms of professional skills and abilities, my appellate practice has allowed me to develop skills and interests that would be useful on the bench. I love the law and I love writing. I greatly enjoy working through complex problems and striving to bring clarity and order to them. I also believe that I have a strong work ethic and am prepared for the heavy workload of an appellate judge.
As noted above, I can work professionally in French, have practised a substantial amount before trial and appeal courts in Quebec, and have argued numerous Quebec appeals before the Supreme Court of Canada, many of which have involved issues of Quebec civil law. While most of the work of the Ontario Court of Appeal is obviously in English, and does not often involve issues of Quebec civil law, these skills would, I believe, continue be assets as an appellate judge. A willingness to approach legal issues from a comparative perspective is generally beneficial.
It probably goes without saying that I also care deeply about the rule of law and the role of a judge in a constitutional democracy. Chief Justice Dickson famously wrote that the Charter safeguards minorities from the threat of the "tyranny of the majority," observing that "[a] truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct." I have always believed in these promises, and see our courts as having an exceptionally important role to play in helping make them a reality.
Lastly, in terms of life experiences, I have set out above some of the biographical details that illustrate some of the perspectives that I would bring to the judicial role. Like many Canadians, both my family and my wife’s came to Canada as immigrants with nothing, an experience that gives me an understanding of some of the struggles that newcomers to Canada experience, particularly as visible or religious minorities. I am, and always will be, extremely grateful for the many opportunities that Canada has given me and continues to give my children. While I continue to enjoy my practice at the bar, I now hope to contribute to the law and to Canadian society in other ways.
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.
Addressed in response to question 2 above.
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