The Honourable J. Gareth Morley’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 12 of the questionnaire completed by the Honourable J. Gareth Morley.

Questionnaire for Judicial Appointment

Part 5 – Language proficiency

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 in Canada's two official languages.

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: 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

If you have answered yes to all four questions above, for both English and French, please answer the additional two questions below:

Without further training, are you able to write decisions in both French and English? *

Without further training, are you able to conduct hearings in both French and English? *

*Please note that the Office of the Commissioner for Federal Judicial Affairs conducts random verifications and assessments of candidates' language proficiency as stated in their questionnaire.

Part 6 – Education

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

University of Toronto, 1988-1990 (Arts and Sciences. Transferred to University of Victoria)

University of Victoria, 1990-1994, Bachelor of Arts (First Class Honours) obtained 1994

University of Toronto, Faculty of Law, 1994-1997, LL.B. obtained 1997

Osgoode Hall Law School, 2014-2018, LL.M. (Specialization in Constitutional Law) obtained 2018

Continuing Education (past 5-10 years):

June 2014, Legislative Drafting and Statutory Interpretation, Department of Justice, Ottawa

Honours and Awards:

2014. Appointed Senior Counsel in Merit Competition in Legal Services Branch

2008. Granted Merit Appointment to Legal Counsel, Level 3

2007. City of Victoria. Mayor's Award

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.

Legal Work History:

January 2016 - present
Senior Counsel, Constitutional Law (first in Constitutional and Administrative Law Group, now Litigation Group)
Legal Services Branch, Ministry of Attorney General. Government of British Columbia
In this role, I provide constitutional opinions to government, primarily in relation to division of powers, judicial independence and the Charter of Rights. I have also represented the Attorney General in constitutional matters at all levels of court.

May 2013 - January 2016
Legislative Counsel, Office of Legislative Counsel
Legal Services Branch, Ministry of Attorney General
My responsibilities included drafting bills, orders-in-council and regulations, advising on whether regulations authorized by underlying statute, providing advice on parliamentary law and practice.

February 2012 - May 2013
Senior Legal Counsel, Civil Litigation Group
Legal Services Branch, Ministry of Attorney General
In this role I represented the Province at all levels of court and in administrative tribunals and commercial arbitration.

September 2007- February 2012
Team Leader, Civil Forfeiture Team, Civil Litigation Group
In this role, I led a team of approximately a dozen lawyers and support staff, providing legal services to the Civil Forfeiture Office.

Aug. 1999 - Sep. 2007
Legal Counsel, Civil Litigation Group
Legal Services Branch, Ministry of Attorney General
Represented the Province at all levels of court, and in front of the Environmental Appeal Board, Forest Appeals Commission, BC Human Rights Tribunal, Employment Standards Tribunal and commercial arbitration. I specialized at different times in contaminated sites litigation and advice, stumpage and forestry litigation and pension and post-retirement benefits litigation but also worked on tort cases involving historic sexual abuse, highway design and constructions and employment standards.

June 1, 1999 - Aug. 26, 1999
Lawyer, Askew Fiorillo & Glavin (Vancouver)
I assisted in litigation in courts, tribunals and before labour arbitrators on behalf of unions and professional associations.

June 1997 - Fall 1998
Articled Student, Sack Goldblatt Mitchell (Toronto)
I worked on litigation and opinion work, involving collective agreements, human rights law, constitutional law, civil actions against government and pension law.

April-September 1996 (full-time), September 1995- May 1997 (part-time)
Student-at-Law, Downtown Legal Services (Toronto)
I represented eligible individuals in summary conviction prosecutions and in civil and administrative proceedings under the supervision of volunteer lawyers and clinic directors.

Non-Legal Work History:

I have been employed as a student-at-law, articled student or lawyer since the summer of 1996. Before that, 1 worked as a cab driver, pizza delivery driver, pedicab operator and telemarketer.

Other Activities and Memberships:

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.  

British Columbia Government Lawyers Association (formerly Legal Services Branch Lawyers Association)

Professional Standards Committee, Legal Services Branch (Co-Chair) 2018-2019

Professional Development Committee, Legal Services Branch (Co-Chair) 2013-2018

Canadian Bar Association, BC Branch, Constitutional and Civil Liberties Subgroup 2017

Pro Bono Activities:

As a practical matter, the pro bono opportunities available to government lawyers are limited by the broad understanding of potential conflict adopted as a matter of policy. I have provided pro bono legal assistance to other parents of internationally adopted children whose birth certificates provided erroneous ages in obtaining declarations of age and dealing with school districts and other officials.

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, Canadian Institute for the Administration of Justice, etc.

January- April 2021 and September-December 2021. Thompson Rivers University, Faculty of Law LAWF 3780, "Canadian Constitution: Framework and Federalism". This is an upper year seminar on topics involving the principles of Canadian constitutional law, other than the rights-conferring provisions, with a focus on the Constitution Act, 1867.

I was co-chair of the Attorney General's Professional Development Committee from 2012 to 2018. In this role, I helped organize and deliver professional development to legal counsel, articling students, paralegals and other law-adjacent professionals working for government. I have continued to make presentations to legal counsel, articling students and paralegals since then.

Community and Civic Activities:

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

I have been President of the BC Government Lawyers Association since September 2019. 1 have served in various executive roles in that organization since 2004 (Vice President, Treasurer, Secretary at different times).

I have been on the editorial collective of Inroads since 2014. Inroads is a now-online, formerly in-print publication devoted to bringing together academics, public policy professionals and journalists across Canada's linguistic, ideological and other boundaries to discuss Canadian and international politics and public policy, arts, economics, law and current affairs.

I have been a member of Ethiopian Canadian Families Association, an organization to connect children of Ethiopian heritage in the Greater Victoria area since it was founded in 2009. It hosts an annual camp event for children of Ethiopian descent, which I participated in when my children were younger.

I have been a parent member of the Greater Victoria Minor Hockey Association since September 2013.

I was President of the Glentana Housing Co-operative in 2007-2008.

Part 12 – 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 500 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 rule of law in Canada has been as part of a collective. I have spent the last twenty-two years working for the Legal Services Branch of the British Columbia Ministry of Attorney General and, in that job, I have contributed my energy, analytical skills and collaborative spirit to its mission.

As the Canadian Bar Association recognized in a resolution of its 2020 Annual General Meeting, public sector lawyers working on behalf of government play a crucial- albeit usually invisible- role in ensuring that government acts in accordance with the law. Government lawyers must translate the principles of the law as pronounced by courts and found in legislation into advice on the legality and risks of concrete executive action. Since only a tiny proportion of the government decisions that affect the rights and interests of the people can ever go to court, trusted government lawyers play a central contribution to the rule of law. In addition, government lawyers are primarily responsible for communicating government’s positions to independent courts and administrative tribunals and for formulating the legislation that creates new law.

I have worked in all three of the functions of a government lawyer: litigation, drafting and advising solicitor. I have also reflected on our experience by writing and teaching. I have organized efforts to promote professional development and professional standards. I have also worked through our Association to ensure lawyers are treated fairly in their employment and have the security to fearlessly give advice to government.

In all these roles, I have inherited and attempted to transmit the values of public sector legal culture, which I believe have had a much-underestimated impact on the rule of law in Canada. These include rigorous legal analysis, cautious risk assessment, creative development of options, and high standards of integrity in order to provide independent and impartial advice and representation to those entrusted with developing executive and legislative policy by the public.

One individual contribution has been to work within my organization to adapt these values to the social and technological reality of the twenty-first century. The principal social development are higher expectations for equality in general, and the development of a post¬ colonial relationship with Indigenous peoples in particular. The principal technological development is the far faster speed of communication and generation of information, which has resulted in an explosion of legal sources and records that can potentially be evidence, a decline in the relevance of vertical bureaucratic hierarchies, and a level of transparency that this culture was not originally adapted for. Few of the complex problems that modern governments have to address lack a legal dimension but few of them can be reduced to that dimension. As a result, government lawyers need to be sensitive both to the importance of a culture of legality to protecting the rights of Canadians and to the other values of policy development and government operations.

Most of the content of my work as Legislative Counsel and as an advising solicitor is confidential. I have been one of two constitutional solicitors to the British Columbia government since the beginning of 2016, during which time the province had - in addition to the usual issues that arise in government - novel constitutional issues as a result of an unusual change of government in the course of a minority parliament, intergovernmental disputes in the areas of energy and the environment, and, more recently, the COVID-19 pandemic.

My contributions as a barrister are easier to talk about. I would say my most significant contributions - always made with colleagues – were to the development of the law of damages for environmental loss (Canadian Forest Products Ltd. v. British Columbia, 2004 SCC 38), of the constitutionality of executive intergovernmental agreements (Reference re Pan-Canadian Securities Regulation, 2018 SCC 48) and of the constitutionality of federal minimum standards in greenhouse gas emission pricing (References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11).

In Canadian Forest Products Ltd. v. British Columbia, I played a significant role in developing a theory for common law damages recoverable by government for loss of environmental amenities that was accepted by the Court in principle, although the majority held the Province could not prove its loss just by pointing to the opportunity cost of foregone resource revenues. The heads of damages were accepted, however, and this remains the leading precedent for the principle that harms to environmental values are actionable at common law. Arguably, our position on the non-deductibility of revenues from an increase of a regulated price for non-damaged resources, while dismissed by the majority, was subsequently adopted in Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57.

In Re Pan-Canadian Securities Regulation, British Columbia’s argument that agreements committing executive governments to introduce legislation cannot “fetter” the legislature was accepted by the Court. This is an important result as inter-governmental agreements are very common in Canadian federalism, but the constitutional basis for them had not been established and was disputed.

Finally, in the Greenhouse Gas References, British Columbia was the only government arguing that the scope of a power that either is or is not a “matter of national concern” under the peace, order and good government clause of section 91 of the Constitution Act, 1867 is determined by the scope of the legislation at issue. In that case, that meant that the issue was whether “minimum national standards of greenhouse gas pricing” were within the peace, order and good government clause, since that was the scope of the power. The majority accepted this point, which I would argue is an important limitation on federal authority. The majority also agreed with British Columbia and Canada that a “matter of national concern” could involve minimum standards and that the heart of whether a matter is one of national concern depends on whether there would be “grave extraprovinical consequences” of leaving the matter solely to each province. Many of the limitations on this test were based in British Columbia’s submissions. While this case of course built on many prior decisions, I think it is fair to say that it is an important contribution to the law of Canadian federalism. British Columbia’s submissions were an important contribution to the analysis.

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

Every individual’s experience is partial and limited, especially in comparison with the vast diversity of contemporary Canada. I am certainly no exception to this, as an upper middle-class male from the historically dominant ethnic group (white English Canadian), who has worked in the legal field since his mid-twenties. I am a bisexual man and have experienced discrimination and even violence as a result but have had a relatively privileged life in general. However, I have had a number of experiences over the course of my life that have made me aware of how diverse this country and its people are and how crucial it is to re-examine one's own biases in order to fairly address their disputes.

My family, especially on my mother’s side, was part of the English Canadian Establishment of their time. However, they taught me the importance of reaching out beyond your immediate experience and fighting for social justice. My grandfather, Andy Brewin, was proud of his work on behalf of what were then unpopular causes. He acted as the lawyer for the Co-operative Committee on Japanese Canadians in their legally unsuccessful challenge to racist deportation orders after the Second World War. He and my grandmother became strong supporters of entrenching human rights in legislation and in the Canadian Constitution-something he lived to see. My mother entered the

legal profession in the early 1970s and told me about the blatant discrimination she and other women faced at that time. While I can hardly deny that I had a privileged childhood and adolescence in upper middle-class circles of Victoria, I was raised to value diversity and social justice.

As a child and adolescent, I experienced bullying because of not conforming to heterosexual gender norms as well as social awkwardness. In the 1970s and 1980s, homophobia was expressed quite openly, including by authority figures, like teachers. As a young person, I became active in movements against apartheid and war, and became exposed to the diversity of people fighting against injustice. At 17,I moved to Toronto and then Vancouver where I became more exposed to the diversity of Canada’s large cities than had been the case when I lived in 1980s Victoria. In addition to being involved in activism, in Toronto I worked in legal aid clinics, getting a broader sense of the legal problems facing people of various class, racial and gender positions.

At the most personal level, my immediate family life, like that of many Canadians, involves diversity of background and ethnicity. I have three children, one of them a young woman highly conscious of social justice issues and two sons of Ethiopian heritage. One of those sons is strongly religious and politically conservative. My life partner is Metis and grew up in a small northern town, while I have lived in southern, urban Canada all my life. I have been humbled to share their experiences and perspectives.

Although I was not in private practice long, my work in legal clinics and in private practice certainly exposed me to a wide variety of clients reflecting modern Canada. In the case of the legal clinic work, I represented or advised people of limited means and usually facing other barriers. My work as a lawyer representing the provincial government has caused me to travel all around British Columbia and interacting with rural and urban people, people of all ideological perspectives and people of a wide variety of ethnicities and religious convictions. Those perspectives were often extremely relevant to the legal issues they had-or believed themselves to have- with the government.

Litigation, including against the government, is increasingly conducted by unrepresented people. I have always found that the best representation for the government, as my client, depends on my ability to understand the perspectives of those who find themselves in conflict with it. It is often- indeed usually- possible to resolve the conflict without going to court and, if not, it leads to a better result to the extent I can understand them. I have generally been able to maintain a respectful and productive relationship with unrepresented litigants - including those with perspectives that cannot be made consistent with government policy or interests. As a result, I have learned a lot about the variety of people who find themselves in our justice system.

It would be foolish to think that my experience has fully equipped me to understand all the perspectives of the people who constitute British Columbia or Canada. I appreciate that this is always a work-in-progress.

3. Describe how judicial decision-making impacts society in a constitutional democracy.

Unelected judges have powers that do not depend on an electoral mandate. While many of their decisions are clearly directed by precedent or binding textual authority, in other cases, they must bring their values and experience to bear in making decisions about which people may profoundly disagree in good faith. Because they are granted unique powers, the role of an unelected judge in a democracy must therefore have special justifications and special constraints. These derive from the nature of the democracy as a constitutional democracy.

The first sense in which a democracy can be a constitutional democracy, pioneered by the United Kingdom, is that the executive is constrained by law and confined to the powers given to it by the law of the land. After the “Glorious Revolution” of 1688, it was accepted that the limits of the legal powers of the executive can only be changed by Parliament and independent courts must determine whether they have been exceeded. Most of the powers of the executive derive from legislation: others derive from historic “prerogatives” or the powers all persons have- but these too can and are constrained by legislation in the public interest. Judges have to hold the executive branch of the state-the branch with the most direct impact on our lives- to the constraints set by the legislature directly accountable to the people.

In the Canadian context judges play this role in holding the executive to its legislatively-granted powers in criminal law, administrative law and civil law.

A fundamental principle of Canada’s criminal law is that behaviour is defined as criminal by Parliament. Enforcement is left to autonomous parts of the (primarily) provincial or local executive, the police and the prosecution services. Judges play a role in making sure police do their jobs within the limits of the law. One way they do this is by deciding that evidence obtained contrary to the Charter rights of suspects is excluded if admitting it would be harmful to the long-term reputation of the justice system. Judges must make sure that anyone charged with an offence either pleads guilty freely or has a fair trial. In trials without a jury, the judge must make sure the evidence demonstrates the person committed the offence beyond a reasonable doubt. In fulfilling these functions independent of the government, the police and the prosecution, judges play a role in maintaining a free society.

A judge also has to ensure that people who have been affected by state action outside the criminal context have been treated in a procedurally fair way. Although the way this principle manifests depends on the context, it comes down to the basic point that government officials must listen to those whose lives they affect and must not be biased. In addition, judges must review the decisions made by the executive under legislation- usually by determining whether those decisions were reasonable. That means making sure that the reasoning given by officials is transparent, internally coherent and does not violate the constraints placed by either the facts before them or the law. Done appropriately, judicial review reinforces democracy because it ensures that those with delegated power act within the powers the elected legislature gives them.

The accountability of the executive can also be enforced through civil actions for damages. With some exceptions, governments are subject to the same legal liabilities as private parties when they violate contracts, harm people accidentally or otherwise do something that would make an individual liable to pay compensation. By ensuring the government meets the same standard as private individuals- unless the legislature or precedent has recognized an exception for public policy reasons-judges keep government within the bounds of a constitutional democracy.

The judicial role of ensuring the executive works within the constraints of law comes to Canada from the United Kingdom. But our form of constitutional democracy added the principle of the written and entrenched constitution, as pioneered by the United States of America. Under our written constitution, judges have the function of deciding when legislation is inconsistent with the values set out in the nation’s written constitutional document or documents.

In 1867, Canadian judges were given the role of holding the federal Parliament and the provincial legislatures to the limits of the powers given to each of them in the historic compromise that created the Canadian federation. In 1982, Canadian judges were given two additional tasks. First, they were asked to give meaning to the rights and freedoms set out in the Charter, including fundamental freedoms, rights of political expression, legal rights especially in the criminal process, equality rights and language rights. Second, they were given the authority to enforce the inherent Aboriginal and treaty rights of Canada’s Indigenous peoples in the face of federal or provincial legislation or executive action that infringes those rights.

In Canada’s major constitutional moments (1867 and 1982), there was a widespread consensus that the functions of protecting federalism, basic rights and freedoms, and Aboriginal and treaty rights could not be entrusted solely to the regular political process. In 1867, elected officials from different regions decided that sovereignty must be divided between a central and provincial governments and gave judges the responsibility to adjudicate the line between the two. In 1982, under the pressure of Indigenous peoples and equality-seeking groups, it was decided that entrenching Charter and Indigenous rights would enhance democracy by giving voice to those whose interests Canadian experience showed would not get proper weight in majoritarian processes. Some of these rights arise from Canada’s status as a liberal democracy and some from its status as a plurinational state.

Judges must act with humility and with due consideration to the reasons the legislature had for acting. They should recognize that the basic decisions of how Canadians govern themselves are, with constraints, left to Canadians to decide through political processes. Judges must pay attention to the text of the Constitution and the principles it embodies, as well as what it leaves to democratic decision making. They are bound to follow precedent and apply neutral legal principles. But judges must also listen to challenges to power, even when it is personally uncomfortable. They must be willing to follow the text, precedent and principle when they point to expanding the circle of Canadian democracy, including when it is controversial or even deeply unpopular. In doing this, they cannot help but start from their own experience and history, but I believe they can go beyond this by analyzing evidence carefully and sensitively and by listening to all sides.

4. Please describe the personal qualities, professional skills and abilities, and life experiences that you believe will equip you for the role of a judge.

Personal Qualities:

I believe I am a fair-minded and empathetic person, committed to understanding other people’s perspectives and concerns. I have good analytic skills and am able to explain complicated issues orally and in writing to multiple audiences. I have always enjoyed the intellectual challenge of law, while not forgetting that it is not just an intellectual enterprise because it is fundamentally about people, their disputes and often about real suffering.

I am good at working respectfully and collaboratively with other people, including in situations of high stress and conflict. I am comfortable with respectful disagreement and debate. I combine a pragmatic willingness to look at multiple options with an insistence on principle when it is at stake.

Professional skills and abilities:

As a government lawyer for 23 years, I have developed knowledge of a wide range of legal areas. I have worked in litigation, providing advice in the face of complex policy initiatives and in drafting legislation. These have helped me develop my ability to communicate legal concepts to both the legally trained and to non-lawyers orally and in writing.

My experience in civil and administrative litigation gave me a strong sense of court procedures, the importance and difficulties of case management, use of documentary evidence, examination and cross-examination of witnesses and oral advocacy. I was able to observe dozens of judges (and other adjudicators) and how they undertook their roles.

My experience drafting legislation gave me a strong sense of the special skills involved in crafting legally effective language that is simultaneously precise and readable. In our legal system, the role of drafting and interpreting legislation are kept carefully separate. However, I found my exposure to this process very helpful in my roles of providing government with advice and representing it in court, and I believe it would be a useful background in a judicial role.

My most recent role has been primarily to provide constitutional advice to government. In many cases, the issues raised are novel or have never been litigated; in other cases, there is a mature and detailed jurisprudence. The issues may be controversial and invoke personal reactions, which have to be kept separate from legal analysis. The role requires both grounding legal opinions in precedent and authoritative sources of law, while at the same time being able to apply principles where there are no clear answers. I believe this experience will be helpful for the role of a judge.

In addition to being a practicing lawyer, I have also written about law, both in treatise form and in law review articles. I have also taught an upper year law course. I think this has helped me develop a broader perspective and it has certainly been interesting.

Life Experience

I grew up in Victoria, British Columbia, part of a close-knit extended family that valued participation in the community, social justice, respect for difference and individuality and respectful-but-passionate debate. Working primarily as a cab driver through university- in Victoria and Toronto- gave me a sense of the much broader diversity of Canadian society than I had grown up with, as did participating in anti-war and other movements.

A legal career can certainly be all-consuming. The main form of “life experience” since I became a lawyer has been raising my children. Addressing a family breakup has been my primary experience of the legal system from the user perspective. In addition to increasing my empathy for the stress inherent in the system, it made me understand how an adversarial system can inadvertently increase conflict- and how helpful a judge or master with emotional intelligence can be.

5. Given the goal of ensuring that Canadians are able to look at the justices appointed to the bench and see their faces and life experiences reflected there, you may, if you choose, provide information about yourself that you feel would assist in this objective.

It is important that the Canadian judiciary reflect the diversity of Canada. Diversity also promotes more informed and more just decision making, While I have the life experience of being part of a sexual minority, as a man of European descent from an economically comfortable background, I acknowledge that appointing me would not increase the racial, class or gender diversity of the bench. I would do my best to listen to those with different life experiences and identities and support increased diversity and inclusion on the bench and in the legal profession.