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 Cynthia Petersen.
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:
Without further training, are you able to discuss legal matters with your colleagues in:
Without further training, are you able to converse with counsel in court in:
Without further training, are you able to understand oral submission in court in:
Part 6 – Education
Name of Institutions, Years Attended, Degree/Diploma and Year Obtained:
Harvard University, Faculty of Law, 1989-1990, LL.M.
Queens University, Faculty of Law, 1986-1989, LL.B.
Queens University, Faculty of Arts and Sciences, 1983-1986, B.A. (Political Science)
I am not sure what type of education information this question is seeking. I am not enrolled in any formal course of study at a University or College, but I do attend continuing professional development and continuing legal education seminars on a regular basis. For example, this past year I attended the following seminars:
November 23, 2016
“Cultural Competency and your ADR Practice”, sponsored by the Ontario Bar Association’s Alternative Dispute Resolution Section
June 28, 2016 “Fair Play: LGBT Inclusion in Sport”, sponsored by the Law Society of Upper Canada
June 10, 2016
“Neuroscience and Behavioural Economics for Legal Practitioners”, sponsored by the Law Society of Upper Canada
April 18, 2016
“Managing Personality Disorders in Mediation”, sponsored by the Ontario Bar Association’s Alternative Dispute Resolution Section
I have not kept a list of all the workshops and seminars that I have attended over the years, but there were several each year for the past two decades.
Honours and Awards:
I will begin by listing my academic awards, then I will list professional honours that I have received since entering private practice.
LL.M. – I was the recipient of a Harvard Law School Fellowship and an Ontario Law Foundation Graduate Studies Bursary (1989-1990)
LL.B. – In each year of my legal studies, I received a Senator Frank Carrel Merit Scholarship in recognition of my high academic standing, (1986-1989)
I also received faculty awards for achieving the highest grade in the following courses during my law school studies:
- Aboriginal Peoples and the Law
- Administrative Law
- Civil Procedure
- Criminal Law
- Immigration aw
- Public Law
B.A – In each year of my undergraduate studies, I received a Senator Frank Carrel Merit Scholarship in recognition of my high academic standing. (1983-1986)
I was also the valedictorian of my high school graduating class (based on academic standing) and I won an academic award for English Literature in my graduating year (1982) at Howard S. Billings High School in Chateauguay, Quebec.
PROFESSIONAL RECOGNITION, HONOURS AND AWARDS
2014 – Leadership Award
Egale Canada Human Rights Trust
2013 – Wall of Distinction inductee
Howard S. Billings High School, Chateauguay (Quebec)
2011 Law Society Medal
Law Society of Upper Canada
2011 – Inductee
Canada’s Queer Hall of Fame
2010 – Hope and Freedom Award
Metropolitan Community Church of Toronto
2006 Certificate of Appreciation
Gay and Lesbian Awareness, Alberta
2006 Certificate of Appreciation
Rainbow Health Network, Ontario
2000 – “Hero” award
Canadian Bar Association’s Sexual Orientation and Gender Identity Conference
I was recently profiled in Julie Soloway and Emma Costante, Leading the Way: Canadian Women in the Law (Toronto: LexisNexis, 2015) (“Cynthia Petersen: Constitutional Litigator and Human Rights Advocate” at pp. 137-139).
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:
Goldblatt Partners LLP (formerly Sack Goldblatt Mitchell LLP)
Partner from January 2000 to present and associate lawyer from July 1995 to December 1999
Chair of the firm’s Associates Committee
Member of the firm’s Executive (Steering) Committee
Member of several other partnership sub-committees over the years, including Partnership Admissions
Primary areas of practice: constitutional litigation, labour law, administrative law, human rights, professional regulation
Discrimination and Harassment Counsel (DHC), Law Society of Upper Canada
November 2002 to present
The DHC is appointed by convocation for 1- to 3-year terms. I have been re-appointed six consecutive times.
In this role, I provide confidential information and assistance to individuals who have discrimination or harassment complaints about Ontario licensees (lawyers or paralegals) or about students in the licensing process. I advise complainants of their options and avenues of recourse. I also provide alternative dispute resolution services in relation to these complaints.
Professor, University of Ottawa, Faculty of Law
July 1990 to June 1998 (on leave from July 1995 to June 1998)
I was initially hired as an Assistant Professor, then obtained tenure and was promoted to Associate Professor before taking a leave of absence to practice law in July 1995. I eventually resigning my faculty position in 1998 to continue pursuing private practice.
During my five active years at the Faculty of Law, I taught Droit de la famille (Family Law in the French common law section) and Property Law, Advanced Constitutional Law, Lesbian and Gay Legal Issues and Legal Writing (in the English common law section). I also supervised independent research projects by LL.M. and LL.B. students in both French and English.
I was appointed by the Dean of Law to chair the faculty’s Admissions Committee and Education Equity Committee.
Legal Research Associate, Metro Action Committee on Violence against Women and Children (METRAC)
Summer position, 1988
I conducted research on sentencing patterns in sexual assault trials in Ontario
Ministry of the Attorney General, Crown Law Office, Kingston (Ontario)
Summer position, 1987
I represented the Crown in interim release (bail) hearings and in some provincial offence hearings in which the accused pleaded guilty. I also assisted a senior Crown Attorney in a Coroner’s inquest (with a jury).
Non-Legal Work Experience:
Faculty of Arts (Women’s Studies Department), University of Ottawa, Lecturer
I taught an undergraduate course entitled “Lesbian Theory and Feminism” for four consecutive years (1991-1994)
Prior to enrolling in law school, I held a variety of summer jobs as an administrative assistant for various companies in Montreal, Quebec. The clerical work that I performed required fluency in both French and English.
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.
I am a founding and active member of the Law Societies Equity Network (LSEN). The LSEN consists of law society representatives from across the country who have equity portfolios. It is a vehicle for law societies to collaborate on initiatives to promote diversity and equity in the legal profession. It began meeting informally in 2003 and was formally founded as a sub-group of the Federation of Law Societies of Canada in 2009. I was elected and served as vice-chair of the LSEN in 2013-2014.
I am also a member of the Advocates Society, l’Association des juristes d’expression francaise de l’Ontario, and the Canadian Association of Labour Lawyers. I have not held any executive positions in these organizations.
I am currently a member of three sections of the Ontario Bar Association: (l) Constitutional, Civil Liberties and Human Rights Law, (2) Labour and Employment Law, and (3) Sexual Orientation and Gender Identity Law. I have not held any executive positions in these organizations, but I have been a speaker at OBA events on several occasions.
Pro Bono Activities:
A substantial part of my law practice has always consisted of pro bono work.
I have done pro bono litigation work for several non-profit organizations. I represented Dying with Dignity Canada as an intervener in Carter v. Canada before the Supreme Court of Canada (2015). I represented Egale Canada Inc. in nine appeals before the Supreme Court of Canada (1994-2014), three appeals before the Ontario Court of Appeal (1998-2014), an appeal before the British Columbia Court of Appeal (2005) and a Reference to the Saskatchewan Court of Appeal (2011), as well as in two cases before the Ontario Superior Court of Justice (2002-2010). I represented Maggie’s and POWER (two sex-worker advocacy organizations) as joint interveners in Bedford v. Canada in the Ontario Court of Appeal (2012), All of this work was performed on a pro bono basis, but a few of the cases received partial funding from the federal Court Challenges Program. (This is not an exhaustive list.)
I have also done pro bono legal work (1995-present) for a variety of impecunious individual clients, including a wrongful dismissal claim for a young francophone refugee and several human rights applications (mostly employment-related cases involving allegations of discrimination based on race, gender identity or sexual orientation). All of these cases settled, but I litigated two other pro bono cases for individual clients, one before the Health Services Review and Appeal Board and the other before the Federal Court.
Throughout my career, I have provided pro bono summary advice to many LGBT individuals on human rights, employment and family law matters. I have also provided pro bono advice and assistance to members of the Cambodian-Canadian community in the Greater Toronto Area on routine immigration, family law and criminal matters, as well as pro bono advice to the Board of the Khmer Buddhist Temple of Ontario on matters relating to municipal law.
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.)
NATIONAL JUDICIAL INSTITUTE
I delivered three presentations for the NJI in the late 1990s. I cannot recall the exact dates.
Two of the workshops were on the topic of LGBT Perspectives and were in the nature of anti-homophobia “sensitivity” training for judges. I believe that one of the workshops was delivered in Ottawa and the other in Toronto. Both were co-taught with another lawyer.
I recall also speaking on a panel at an NJI conference in Quebec City. The conference was about family law and I spoke about the unique legal issues and challenges faced by same-sex couples and same-sex parents.
LAW FACULTY COURSES
I co-designed and co-taught (with Michael Hines) a seminar course entitled “Advanced Topics in Labour and Employment Law” at the University of Toronto Law School in the winter session of 2015.
See also my full-time employment at the University of Ottawa (Faculty of Law) from 1990 to 1995, cited above (at the beginning of Part 7 of this Questionnaire).
OTHER LEGAL EDUCATIONAL ACTIVITIES
I have delivered dozens of lectures in law school classes (across Ontario and in Winnipeg and Montreal) and have conducted dozens of workshops on legal topics in various settings over the years. I do not keep track of these presentations and therefore cannot provide complete lists of them. I have re-constructed (from memory and from my records) the following partial lists:
LAW FACULTY LECTURES (partial list)
March 21, 2016 – “Sexual Harassment in the Legal Profession”, presentation to students at Queen’s University Law School
March 7, 2016 – “Harassment and Discrimination in the Legal Profession” in Professor Joanna Birenbaum’s class on Gender, Equality and the Law at Osgood Hall Law School in Toronto
March 2, 2016 – “Sexual Orientation, Gender Identity and the Workplace” in Professor Michael Hines’s class on Advanced Employment and Labour Law at the University of Toronto Law School
February 26, 2016 – “Lawyer Self Care” in Professor Faisal Bahba’s class at Osgood Hall Law School (a small seminar course for upper year students who are considering working in a small firm or as a solo practitioner)
January 22, 2016 I lectured in three 1st year classes about “Professional Responsibilities of Lawyers” at the University of Ottawa Law School
September 4, 2015 – I delivered two orientation workshops to first year students at Queens University Law School on the topic of “Harassment Prevention in Legal Education”
March 13, 2014 I delivered the Thomas Feeney Memorial Lecture at the University of Ottawa Law School re: “Preventing and Responding to Discrimination and Harassment in the Legal Profession – Progress and Challenges”
January 31, 2014 – I participated in a panel discussion on Access to Justice, sponsored by Pro Bono Students Canada, at Queens University Law School
January 28, 2014 – I presented to the Women in the Law and OUTLaw student groups at Windsor Law School on the topic of “Litigation as a Tool for Achieving Social Change”
January 28, 2014 I lectured about “Public Interest Litigation” in a class on Access to Justice at Windsor Law School
November 13, 2013 – I participated on a panel discussion about “Public Interest Litigation” at Pro Bono Students’ Canada’s annual conference at the University of Toronto Law School
January 29, 2013 – I lectured about “Law and Social Change – The Evolution ofLGBT rights in Canada” in a class on Access to Justice at Windsor Law School
January 29, 2013 – I presented on the topic of “Careers in Law and Social Justice” to students in the Women and the Law Group at Windsor Law School
September 6, 2011 – I delivered a Keynote speech to the incoming class of 1st year students at University of Toronto Law School (during Orientation Week)
LAW SOCIETY SPONSORED EVENTS (partial list)
May 06, 2015 – I participated in a panel discussion about “Mental Wellness in the Legal Profession”, a Continuing Legal Education session sponsored by the Law Society of Upper Canada (LSUC)
March 5, 2015 – I presented on the topic of” Women in the Legal Profession” at the LSUC’s International Women’s Day event in Toronto
December 10, 2014 – I moderated a panel discussion marking the 40th anniversary of the Law Society’s Rules of Professional Conduct prohibiting discrimination.
June 201 1 – I delivered a Keynote address at the LSUC’s annual Pride celebration event in Toronto
June 16, 2010 – I participated in a panel discussion on “Reconciling Conflicting Rights” at the LSUC’s annual Pride celebration event in Toronto.
ONTARIO BAR ASSOCIATION (OBA) SPONSORED EVENTS (partial list)
November 29, 2016 I participated in a panel discussion on “Dealing with Discrimination in the Workplace: Strategies for Responding to Challenges Faced by Racialized Licensees” at the 2nd Annual Diversity Conference sponsored by the OBA and the Roundtable of Diversity Associations (Toronto)
May 28, 2015 I participated in a panel discussion about the Law Society’s model policy on LGBT inclusion in law firms at an event sponsored by the Sexual Orientation and Gender Identity Conference of the OBA (Toronto)
May 07, 2014 – I co-presented a workshop on the topic of “What Small Law Firms Need to Know about Discrimination and Harassment” at the OBA Equality Committee’s seminar on “Human Rights – It’s Not Just About Big Firms” (Toronto)
June 25, 2013 I co-conducted a diversity training workshop for sole practitioners and small law firms as part of an OBA seminar on human rights (Ottawa)
June I l, 2012 – I co-conducted a diversity training workshop for sole practitioners and small law firms as part of an OBA seminar on human rights (Toronto)
April 18, 2012 – I co-presented a workshop on “Promoting Equity and Diversity in the Legal Profession” at an event sponsored by the OBA (in Ottawa)
December 4, 2009 I presented on the topic of “Promoting Diversity and Equity in the Legal Profession” at the OBA’s annual council meeting (Toronto)
ONTARIO COURT OF APPEAL CLERKS’ SPEAKERS SERIES
January 20, 2016 and February 2015 (approximate date) – I presented (twice) on the topic of “Constitutional Litigation and the Role of Interveners”
RESPECTFUL WORKPLACE TRAINING IN LAW FIRMS
I am frequently invited to deliver workshops to lawyers and staff in law firms on such topics as Preventing Workplace Harassment and Workplace Violence, Accommodating Disability and Religious Observance in the Workplace, and Promoting Diversity and Equity in the Legal Profession. These workshops have been attended by as few as eight or as many as sixty participants.
INTERNAL LAW SOCIETY TRAINING
I have been delivering periodic training to security staff and to managers at the Law Society of Upper Canada for over a decade, on the topics of accommodation under the Human Rights Code and harassment prevention in the workplace. I have co-presented some of these workshops and have delivered others on my own. I would estimate that I have delivered this training on approximately 20 occasions over the 10 years. I have not kept a complete list of the precise dates, but the most recent training of this sort was delivered on August 10, 2016, July 14, 2016 and July 14, 2015.
On March 28, 2013, I co-presented a Cultural Competence workshop to auditors and reviewers at the Law Society of Upper Canada.
I recently delivered training on the topic of “Managing and Overcoming Unconscious Bias” to managers at the Law Society (on July 14, 2016), to the Human Resources and Corporate Resources and Training Staff at the Law Society (on October 20, 2016) and to the Law Society’s Senior Executive Management Team (on November 8, 2016).
FIRE FIGHTER EDUCATIONAL SEMINARS
Over the past decade, I have delivered dozens of seminars to fire fighter associations across the province on topics relating to occupational health and safety, discrimination in the workplace, accommodation of family status, workplace violence, privacy and social media and the workplace, and sexual harassment.
OTHER CLIENT TRAINING SEMINARS
Over the years, I have delivered numerous training seminars to various clients (e.g. University Faculty Associations, Teachers’ Federations, CUPE Locals, etc.) on labour law and human rights topics, such as the union’s duty to represent its members, the union’s role in accommodating workers’ disabilities, issues pertaining to workplace harassment investigations, etc.
TRAINING UNDER THE ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT (AODA)
The AODA, which was enacted in 2005, requires that organizations with at least one employee in Ontario provide mandatory training to their employees, volunteers and executive officers on various topics, including how to interact with persons with various types of disabilities in a manner that is accessible and respectful. I have provided this training to numerous clients over the years.
TRAINING ON TRANS-INCLUSIVITY
May 6, 2016 – I presented on the topic “Creating a Welcoming and Inclusive Environment for Trans Students and Employees” at Humber College, Lakeshore Campus, in Toronto
December 7, 2015 – I presented a workshop on “Working with Trans Students in a Post-Secondary Environment” at Humber College, North Campus, in Toronto
October 14, 2015 – I presented a workshop on “Gender Diversity and Human Resources” at Humber College, North Campus, in Toronto
March 26, 2015 – I presented on the topic of “Trans-Inclusivity in the Post-Secondary Educational Environment” at Humber College, North Campus, in Toronto
2012 (approximate date) I presented a workshop on “Trans-inclusivity” to the Executive of a union local after one of the union’s steward coordinators transitioned in the workplace.
Community and Civic Activities:
List all organizations of which you are a member and any offices held with dates.
I am not a member of any specific community organizations, but I am actively involved in the Cambodian-Canadian community in the Greater Toronto Area. Over the past 15 years, I have provided settlement support to many Cambodian immigrants, including assistance with such matters as applying for a social insurance number, OHIP coverage, a passport, or a birth certificate for a newborn child. I have assisted them with filing income taxes, applying for child tax benefits and daycare subsidies, studying for the Canadian citizenship test or the driver’s licensing test, obtaining auto insurance and making insurance claims, etc.
I have been very active in Ontario’s LGBT communities for several decades. At different times, I have been a member of Egale Canada Human Rights Trust and of the Coalition for Lesbian and Gay Rights in Ontario. I was the Co-ordinator of the Pink Triangle Services Bureau in Ottawa in the early 1990s, but I have not held any other offices in any other LGBT community organizations.
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 believe that my most significant contribution to the law and the pursuit of justice in Canada has been in respect of the work I have done to advance LGBT equality in this country – though I do not, by any means, take exclusive credit for the litigation successes and/or evolution of the law in this area, since many lawyers and LGBT activists were involved in collective efforts over many decades. Some of the early battles were fought by LGBT activists and their allies long before I even enrolled in law school. For example, the first same-sex marriage case was litigated in the mid-1970s (Re North and Matheson (1974), 52 DLR (3d) 280 (Man Co Ct)). I owe a debt of gratitude to those who constructed a legal foundation upon which I was able to build.
My contributions to the struggle for LGBT equality have been extensive. I will focus here on the legal contributions I that have made since my call to the bar in 1994.
In my private practice, I have represented numerous individual lesbians, gays and bisexuals in a wide variety of cases in which their human rights and/or constitutional rights were at stake. These cases included discriminatory termination of employment based on sexual orientation, denial of spousal death benefits under auto insurance legislation, denial of a dependant’s right to sue in tort for wrongful death of a same-sex partner, and denial of tax advantages associated with spousal recognition under the federal Income Tax Act.
I have also represented unions in numerous cases involving the rights of their lesbian and gay members, including cases involving same-sex spousal pension benefits, access to employee insurance benefits coverage for fertility drugs required in order for a gay male employee to conceive a child with a surrogate, and several cases involving allegations of workplace discrimination and/or harassment based on sexual orientation.
As the list of reported cases in Part 8 of this document reveals, I was counsel to Egale Canada Inc., this country’s only national LGBT rights organization, in numerous precedent-setting cases argued at all levels of court across the country, including several interventions before the Supreme Court of Canada. These cases involved a variety of issues, ranging from spousal recognition (under federal old age security legislation and provincial family legislation), to freedom of expression (in the context of Canada Customs’ seizures of publications destined for a gay bookstore and of a school board’s censorship of children’s books depicting families with same-sex parents), to the suppression of anti-gay hate propaganda and a challenge to the asserted right of evangelical religious organizations to discriminate against employees in same-sex relationships.
Most of the LGBT cases that I argued were successful. Even those that were not successful usually advanced the law in a way that benefited LGBT community members (such as the Supreme Court decision in Egan v. Canada, in which the claimants lost under s.1 of the Charter but established two important legal principles, namely that “sexual orientation” constitutes an analogous ground under s. 15 of the Charter and that denial of government spousal benefits to same-sex partners constitutes a breach of s. 15 rights).
I have described earlier in this document the work that I did in advancing equal marriage rights for same-sex couples. I have also attached the factum that I filed in the Reference re: Same-Sex Marriage case before the Supreme Court of Canada (as one of my writing samples).
I have also been very active in advocating for the rights of trans-identified persons throughout my career.
I have argued grievances filed by union clients on behalf of transgender employees who have been subjected to discrimination and harassment in the workplace. I have also represented individual transgender clients in human rights cases alleging discrimination in employment or access to services. (These cases were all resolved through settlement negotiations to the satisfaction of my clients.)
I have litigated important test cases involving trans-equality rights. For example, in 2001, I argued an appeal before the Health Services Appeal and Review Board on behalf of a transsexual woman who was denied OHIP funding for her gender-confirmation surgery because she was married to another woman and the Clark Institute (now the Centre for Addiction and Mental Health), which was required to pre-approve such surgeries in order for them to be funded, had a policy (at that time) of denying approval to patients who were in same-sex relationships(i.e., the same sex as their own felt gender identity). In 2005, I represented Egale as an intervener before the British Columbia Court of Appeal in a case involving a trans woman who was denied the opportunity to volunteer at a women’s rape crisis shelter based on her gender identity. I also represented Michelle Josef in an Ontario court proceeding that challenged the delisting of sex-reassignment surgery from the list of medically insured practices under OHIP (a copy of my factum in that case has been provided as one of my writing samples).
Throughout the more than two decades that I have been in practice, I have been at the forefront of the LGBT rights movement. This is reflected not only in the litigation work that I have done, but also the public presentations I have delivered and the training I have provided (listed elsewhere in this questionnaire), as well as my publications on LGBT rights topics (also listed elsewhere in this questionnaire). For many years (up until approximately 10 years ago), I also had a strong presence in the mainstream media as an LGBT rights advocate, contributing to public discourse on LGBT issues by multiple appearances on television and radio programs (in both French and English).
2. How has your experience provided you with insight into the variety and diversity of Canadians and their unique perspectives?
I have had both personal and professional experiences that have afforded me insights into the varying perspectives of diverse communities.
A large part of my practice focuses on human rights issues. Complainants in human rights cases are typically members of marginalized communities that are vulnerable to human rights abuses. I am therefore regularly required to understand and to represent (before grievance arbitrators and tribunals) the perspectives of persons from religious, ethnic, socio-economic, racial and cultural backgrounds that are different from my own. I take very seriously the responsibility of giving voice to victims of discrimination and harassment in the justice system. I endeavour to do so in a manner that accurately represents their point of view, which requires me to understand, appreciate and be able to articulate their experiences and unique perspectives.
My work as Discrimination and Harassment Counsel (DHC) for the Law Society also requires insight into the experiences and perspectives of persons from a variety of communities. I offer alternative dispute resolution services to assist parties in resolving discrimination and harassment complaints against licensees, Complainants can be members of the bar or members of the public. They are often from religious minorities, racialized or colonized (Indigenous) communities, or they are persons with a disability. My work as DHC requires patience, empathy, strong listening skills, an ability to overcome language barriers (many complainants are not fluent in either English or French), as well as an awareness of and sensitivity to gender, race, ethnicity, disability, religion, gender identity and sexual orientation issues.
Through this work and through other personal experiences (described below), I have learned that culture can determine the importance that people place on roles and social hierarchies, the individualistic or collectivist frameworks within which they evaluate rights, their views of the propriety of displays of emotion or affection, and their conception of privacy. People from different cultural backgrounds may attribute different meanings to body language and even to words and facts, thus when they interact cross-culturally — particularly in an adversarial setting the potential for mis-attribution is rife and the risk of mis-communication is high. As a mediator/conciliator in these situations, I have developed a keen ability to identify, recognize and reconcile cultural differences in inter-personal interactions, communications and approaches to conflict resolution.
In order to enhance my ability to perform this work, I have received formal training to improve my cultural competence. Since my early adulthood, I have participated in numerous workshops to broaden my understanding of different faiths and cultures, to learn to identify cultural cues and to unlearn unconscious biases acquired through socialization. I continue to attend such workshops whenever I have the opportunity to do so. (I also deliver workshops on cultural competence and on overcoming unconscious bias.)
Growing up in a bilingual home in Quebec during the so-called “language wars” of the 1960s and 1970s gave me an early appreciation for both the benefits of and the tensions created by multiculturalism.
I was raised in Chateauguay, a small town in the suburbs of Montreal with a relatively homogenous population. I did not have much exposure to people from different cultural, ethnic, racial or religious backgrounds because of the lack of diversity in the town. But it was situated next to the Kahnawake Mohawk Territory, so I went to school and played sports with Indigenous children. Through my acquaintance and friendship with Mohawk families, I became aware of some of the distinct traditions and values of Indigenous people, as well as the challenges and injustices faced by First Nations communities. I have endeavoured to educate myself further (as an adult) about the histories of First Nations and other Indigenous communities through reading and listening, whenever the opportunity presents itself, to the stories and perspectives of Indigenous persons.
I have had the privilege of traveling extensively around the world, often for lengthy periods of time (2-4 months) and frequently alone. I have spent a significant amount of time in Southeast Asia, particularly in Cambodia. My time in Cambodia and my involvement in the Cambodian-Canadian community have given me a greater appreciation of the challenges faced by new Canadians, of the effects of inter-generational trauma (arising from genocide perpetrated by the Khmer Rouge), and of the need for patience, openness, and perspecuity in all cross-cultural communications. I have learned to situate myself culturally, to examine and de-construct my own culturally-based assumptions, and to recognize the way that culture and socio-economic background influence perspectives and impact interpersonal interactions.
3. Describe the appropriate role of a judge in a constitutional democracy.
The role of a judge is multi-faceted. At first instance, it includes conducting fair trials in accordance with principles of natural justice and rules of evidence, deciding credibility issues, making findings of fact based on the applicable standard of proof, applying common law principles, interpreting and applying legislation, ascertaining appropriate remedies where civil liability is found to exist and/or imposing a just sentence where criminal guilt is established.
Judges are called upon to apply settled legal principles to novel issues, to distinguish factual situations in which different principles should apply and to follow binding precedents in accordance with stare decisis in order to ensure consistency and predictability in the law.
Appellate court judges have a distinct role in reviewing the decisions of trial judges to identify possible errors and provide guidance with respect to the correct interpretation and application of the law.
These judicial functions do not, however, answer the specific question about the role of a judge in the particular context of a constitutional democracy. It is a daunting task to attempt to answer that question in less than 1,000 words, so please forgive the necessary oversimplification of complex concepts that follows.
A functioning constitutional democracy is premised on two fundamental principles, namely the independence of the judiciary and the Rule of Law, including the supremacy of the Constitution as the highest law of the land. In a constitutional democracy, the provisions of the Constitution occupy a pre-eminent place relative to other legislative enactments. Laws that are inconsistent with the Constitution are, to the extent of their inconsistent, invalid and of no force or effect.
Under our Constitution, federal and provincial legislatures have the power to draft, debate, enact, amend and/or repeal legislation. They do so in accordance with the will of the public, as determined by the collective wisdom of the elected politicians who represent the population. The executive branches of government (federal and provincial) have the power to develop and implement government policy within the parameters of the laws enacted by the legislatures. In a constitutional democracy, one of the key functions of the judiciary is to ensure that both of these legislative and executive powers are exercised in accordance with the provisions of the Constitution.
In Canada, in addition to vesting the executive and legislative branches of government with their powers, the Constitution serves three primary purposes :
- it delineates the respective legislative authority of the federal and provincial levels of government;
- it recognizes and affirms Aboriginal rights; and
- it guarantees certain individual rights and freedoms that cannot be violated by the state, subject only to reasonable limits prescribed by law that are demonstrably justifiable in a free and democratic society.
In short, the Constitution empowers the state to enact and implement laws that govern the life of its citizens, while simultaneously imposing important limits on the exercise of those powers. Judges are entrusted with the responsibility of enforcing the constitutional limits.
While not every case before the courts involves such lofty issues, when called upon to do so, the judiciary serves as a check on the proper exercise of the state’s powers, Judges are, for example, responsible for ensuring that Parliament and provincial legislatures enact laws within their respective jurisdictional competence (in accordance with ss.91 and 92 of the Constitution Act, 1867). They are responsible for protecting individual rights and freedoms from unjustified infringement by state actors (in accordance with the Charter of Rights and Freedoms) and for ensuring that Aboriginal land and treaty rights are honoured and respected (in accordance with s.35 of the Constitution Act, 1982).
Judges are also responsible for ensuring that appropriate declarations flow from findings of constitutional invalidity (e.g. striking out words from legislative provisions in order to correct a constitutional deficiency). They have a responsibility to ensure that meaningful individual remedies are issued, when appropriate, to uphold constitutionally guaranteed rights (e.g. the issuance of a constitutional exemption or an order excluding evidence obtained in contravention of Charter rights and freedoms).
In discharging these responsibilities, judges must at times breathe life into historical Constitutional provisions in order to ensure their contemporary relevance, in accordance with the “living tree” doctrine. In interpreting the Constitution, they must strike a balance between the need for consistency, predictability and stability on the one hand, and the need for flexibility and adaptability on the other. They must also strike a balance between the protection of individual rights from unjustifiable state encroachment and the exercise of appropriate deference to legislatures, in circumstances where deference is warranted.
Since the enactment of the Charter in 1982, some Canadian courts and judges have been criticized in certain quarters of our society as being too “interventionist”. One example that comes to mind from my own litigation experience is the negative media attention directed at the Supreme Court of Canada in the wake of its decision in Vriend v. Alberta, in which the court concluded that the provincial legislature’s failure to include “sexual orientation” as a prohibited ground of discrimination in the Individual Rights Protection Act constituted an unjustifiable infringement of Charter equality rights, The Supreme Court corrected the constitutional infirmity by reading those words into the legislation. Some vocal critics asserted that the Court was thereby usurping the role of the legislature and acting in an anti-democratic manner.
In my opinion, that criticism was premised on a lack of understanding about the proper function of the judiciary in a constitutional democracy, The Constitution effectively confers legitimacy on the exercise of legislative and executive state powers. That legitimacy is preserved and enhanced (not undermined) by an independent judiciary that enforces constitutional limitations on state powers.
4. Who is the audience for the decisions rendered by the court(s) to which you are applying?
I will answer this question first with respect to the Superior Court of Justice, then with respect to the Court of Appeal (as I am applying for an appointment to either of these courts).
SUPERIOR COURT OF JUSTICE
Decisions rendered by the Superior Court of Justice have varying audiences depending on the nature of the issues in dispute, Moreover, the decisions typically have multiple (primary and secondary) audiences.
In matters of private law, where the litigation centres primarily on factual disputes, the main audience of the court’s decision typically consists of the parties to the dispute. Where credibility findings are made in respect of third party witnesses, those witnesses also have an interest in at least a portion of the court’s decision, namely that which relates to the assessment of their credibility, so they may form part of the anticipated secondary audience.
Court decisions in private law matters may also have a broader audience, particularly where there are legal (as well as factual) issues in dispute. For example, a court decision that develops the common law to recognize new rights and obligations (such as a right to privacy or a duty of honesty in contractual performance) will not only impact the parties to the litigation, but will also inform the future conduct of employers, service providers, and others who look to court decisions for guidance in order to avoid incurring liability.
In matters of criminal law, the main audience of the court’s decision typically consists of the accused and the victim (and/or victim’s family), though in many cases the public at large will also have a substantial interest in either the outcome and/or reasoning of the court, and may therefore also be part of the primary audience. The public would always form part of the secondary audience in any criminal case, since the criminal law is enacted and enforced to serve the public interest. One of the underlying principles of criminal sentencing is general deterrence, so the court must always consider the public as part of its audience in delivering sentences.
In other (non-criminal) matters of public law, the main audience of the court’s decision extends beyond the parties to include interveners, the public at large and potentially also state actors (particularly where constitutional issues are raised). A decision, for example, on a division of powers issue, will have far reaching implications for both federal and provincial levels of government, as well as any individuals directly involved. In Aboriginal rights cases, the court’s decision may have implications for the entire country, reaching beyond the provincial boundaries of Ontario (even if it is not binding in other provinces), In such cases, the audience of the court’s decision will extend beyond the First Nations and Indigenous persons whose land rights, Treaty rights or inherent Aboriginal rights are at issue.
In matters before the Divisional Court, the main audience of the court’s decision consists not only of the parties to the dispute, but also includes the government official or administrative tribunal whose decision is under review/appeal, and potentially also other administrative decision-makers, who frequently seek guidance from the Court on the proper interpretation and application of enabling legislation.
In every case, the court’s secondary audience includes the counsel representing the parties (or the Crown, in criminal matters) and potentially also other lawyers who practice in the same area of the law. Lawyers learn from court decisions not only about litigation strategy, but also about developments in the law, which enable them to provide sound advice to their clients. Being able to predict litigation outcomes based on familiarity with applicable jurisprudence is a central function of lawyers, who are called upon to provide advice to their clients about prospects of success in litigation and about the merits of proposed terms of settlement.
In every case, the court’s secondary audience also includes law students, legal scholars and academics, who research, study, learn and teach the law based on jurisprudence.
COURT OF APPEAL
Decisions of the Court of Appeal also have multiple audiences, depending on the nature of the issues in dispute. The parties before the Court, whose rights and interests are at stake, obviously form part of the primary audience for the Court’s decisions. All the other persons noted above (i.e., counsel for the parties, members of the public, victims of crime, law students, legal scholars, law professors) are also potentially part of the Court’s primary or secondary audiences, depending on the nature of the issues in dispute.
In addition to those audiences, Court of Appeal decisions also have, as part of their primary audience, lower courts and tribunals, which are bound by stare decisis to follow the Court’s rulings in order to ensure predictability in the law. The judge whose decision is under appeal is a key member of that audience, since her or his findings at first instance and reasons for judgement are being examined by the Court of Appeal for errors. However, her or his colleagues on the lower court also derive important guidance from appellate court decisions in the course of their deliberations and they must therefore also be considered part of the Court of Appeal’s audience.
In some cases, Court of Appeal decisions (on significant matters of public interest, such as Aboriginal rights and Charter rights) may also be read and relied upon by courts in other provincial jurisdictions, not as binding precedent, but potentially as a persuasive source of reasoning. Those courts may therefore form part of the secondary audience for some Court of Appeal decisions.
5. Please describe the personal qualities, professional skills and abilities, and life experience that you believe will equip you for the role of a judge.
I believe that humility is one of the most important qualities of any person who occupies judicial office. While not lacking in self-confidence, I am generally a humble individual. I do not typically boast about my legal prowess, career achievements, or personal characteristics, but at the risk of appearing immodest, I have highlighted below (and elsewhere in this Questionnaire) my strengths, aptitudes and accomplishments, in the hope of persuading you of my suitability for a judicial appointment. I believe that I have the requisite intellectual abilities, professional skills, temperament, integrity and personal character to equip me for the role of a judge.
Although I would be honoured and pleased to serve on the Ontario Superior Court of Justice, I am also applying for an appointment to the Ontario Court of Appeal. I recognize that it is unusual for a lawyer to be appointed to a Court of Appeal directly from practice, but I believe that I am uniquely qualified for the position, given my bilingualism, my experience in roles that require independence and impartiality, and my combined academic and practice work experience, including extensive appellate litigation. Moreover, my experience on the Canadian Judicial Council’s Committee of Inquiry has given me insights into the unique process of deliberating with a panel of judges, which would serve me well on the Court of Appeal (or Divisional Court).
I have argued many appellate cases (before the Supreme Court of Canada and three provincial Courts of Appeal). I understand and appreciate the role of appeals in our justice system and the unique responsibilities of appellate judges. An appeal is not intended to afford a dissatisfied litigant with a second forum in which to have their issues re-litigated, Appeals involve an evaluation of lower court rulings either to confirm the correctness of the reasons for judgment or to identify errors of law or fact. One of the primary purposes of appeals is to serve as an opportunity for appellate judges to clarify legal principles, in order to contribute to stability and predictability in the law – while at the same time delivering justice to the parties in the immediate matter before the Court.
Consequently, one of the requirements of appellate court judges is to be able to write lucid decisions that provide clear guidance on the law and its proper application. My advanced legal studies and my work experience as a law professor helped me to develop strong analytical and writing skills from the outset of my career. I have often been commended throughout my career for my logical and critical reasoning abilities, my grasp of complex legal concepts, and my ability to express my thoughts clearly, eloquently and succinctly, both orally and in writing.
I have acquired an in-depth familiarity with the rules of evidence through my busy litigation practice. I also have expansive knowledge of substantive law. Although my private practice has focused primarily on constitutional law, administrative law and labour law, I have had some exposure to the criminal justice system and to other areas of law (as set out above). To the extent that there are shortcomings and gaps in my legal knowledge, I am confident that I possess transferable skills that I could use to grasp new concepts, assimilate new information and adjudicate issues in previously unfamiliar areas of the law. I note that when I entered private practice in 1995, I joined an established union-side labour law firm, even though I had no background whatsoever in labour law. I had not studied it in law school and had not taught it as an academic, yet I embraced it as a new undertaking and became one of the province’s leading labour law practitioners. As my career demonstrates, I am not daunted by learning new areas of the law.
My legal knowledge, intellectual and analytical abilities, and strong writing skills are not the only qualifications that would equip me for the role of a judge. In my positions as Discrimination and Harassment Counsel for the Law Society, as counsel to the Certified General Accountants of Ontario Tribunals, and as a mediator and investigator in private practice, I have demonstrated that I am capable of exercising impartiality and sound judgement, which are fundamental to the judicial role. In conducting investigations, I have been required to hone my listening skills, engage in credibility assessments of witnesses, make dispassionate findings of fact based on evidence, and reach conclusions about allegations by applying established standards of conduct, as interpreted by binding jurisprudence. I have earned a reputation as an investigator who is thorough, fair, open-minded and impartial, whose findings are well-supported, whose conclusions are well-reasoned, whose decisions are well-articulated and whose reports are consequently unassailable.
When conducting conciliation discussions and mediation meetings, I am required not only to be neutral and impartial in fulfilling my duties, but also to be perceived always as neutral and impartial. Among other things, this requires that I be considerate of conflicting perspectives and points of view, open-minded, fair and balanced in my problem-solving approach.
While I am certainly capable of making mistakes (as we all are), I have consistently demonstrated sound judgement and common sense throughout my career, qualities which are essential in the judicial role.
Judges are required, at times, to make unpopular decisions, to rule in accordance with legal principles even when the outcome runs contrary to public opinion. It requires personal fortitude and integrity to assume and fulfil this responsibility, which I believe I have. Moreover, I have a strong reputation among my professional colleagues, including adjudicators, judges and opposing counsel, as someone who is not only intelligent, knowledgeable, skilled and articulate, but also consistently professional, courteous, tactful and respectful. Both my clients and my colleagues would, I believe, say that I am patient yet firm; assertive, while never being bombastic or rude; meticulous and rigorous, yet not inflexible. Most importantly, I have earned a solid reputation as a highly ethical and scrupulous individual with tremendous integrity.
6. Given the goal of ensuring that Canadians are able to look at the justices appointed to the bench and see their faces and life experience reflected there, you may, if you choose, provide information about yourself that you feel would assist in this objective.
I am proudly and openly bisexual.
I have been actively involved in LGBT communities for about three decades. I co-founded the first lesbian and gay law student group at Queen’s University Law School in the late 1980s. I was an active member of the Gay and Lesbian Law Students group at Harvard Law School (while I was enrolled in the LL.M. program in 1989-1990). I developed and taught the first law school course on Lesbian and Gay Legal Issues at the University of Ottawa Law School in the early 1990s. (I believe that course may have been the first of its kind in the country.) Also in the early 1990s, I co-ordinated the Ottawa Pink Triangle Services speakers bureau, which responded to requests from community organizations and schools for speakers to give presentations on LGBT issues. In the late 1990s, I delivered LGBT rights and anti-homophobia workshops to judges for the National Judicial Institute. Many of my publications have focused on topics relating to LGBT issues. My litigation practice has included a high volume of cases involving LGBT rights, most of which have been argued on a pro bono basis. I have also been involved at the grass-roots level in numerous LGBT organizations, either volunteering my time, providing financial support and/or participating in fundraising and other community events (for such organizations as Rainbow Railroad, the Foundation for Equal Families, Egale Canada Human Rights Trust, the Coalition for Lesbian and Gay Rights in Ontario, etc.).
In July 2011, I was inducted into the Canadian Queer Hall of Fame, in recognition of the work I have done to promote the equality of LGBTs in Canada (https://www.qhalloffame.ca/index.php/inductees). As my list of other professional honours and awards demonstrates, I am regarded as a prominent and well-respected figure within Canada’s LGBT communities.