The Honourable Sheilah Martin's questionnaire

Under the new Supreme Court of Canada Judicial Appointments Process and the announcement made by the Prime Minister on July 14, 2017, qualified applicants from Western Canada and Northern Canada could apply for appointment to the Supreme Court by completing a Questionnaire. The Questionnaires were used by the Independent Advisory Board for Supreme Court of Canada Judicial Appointments to review candidates and submit a list of 3 to 5 individuals for consideration by the Prime Minister. Candidates were advised that parts of their Questionnaire could be made available to the public should they be chosen as the Prime Minister’s nominee.

Below are Parts 3, 4, 5, 6, 7, and 10 of the Questionnaire completed by the Honourable Sheilah Martin (view Bio).


Questionnaire for the Supreme Court of Canada Judicial Appointment Process

[...]

PART 3 - STATUTORY QUALIFICATIONS

Bar Membership(s):

Bars, Call dates, Reason for cessation of bar membership (i.e. resigned, appointed to the bench, other) and date of reinstatement (if applicable).

  • Law Society of Alberta, 1989 to 2005
  • Cessation of bar membership because of my appointment to the Court of Queen's Bench of Alberta in 2005
Judicial Experience (if applicable)

(Include all dates of appointment)

  • Justice of the Courts of Appeal for Alberta, Northwest Territories and Nunavut, 2016 to present
  • Deputy Judge for Supreme Court of Yukon, 2009 to present
  • Justice of the Court of Queen's Bench of Alberta, 2005 to 2016
RESIDENCE

(Please confirm the following mandatory requirement statement)

  • The Supreme Court Act requires that all justices shall reside in the National Capital Region or within 40 kilometers thereof. I confirm that I either currently meet this requirement or that if appointed, I will move my residence to the National Capital Region or within 40 kilometers thereof.

PART 4 - LANGUAGE

Please note that in addition to the answers to the questions set out below you may be assessed as to whether you are functionally bilingual

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

  • English: Yes
  • French: Yes

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

  • English: Yes
  • French: Yes

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

  • English: Yes
  • French: Yes

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

  • English: Yes
  • French: Yes

PART 5 - EDUCATION

Name of institutions, years attended, degree/diploma and year obtained:

  • McGill University, 1976 to 1981, Bachelor of Civil Law (1981)
  • McGill University, 1976 to 1981, Bachelor of Common Law (1981)
  • University of Alberta, 1981 to 1982, Master of Laws (1983)
  • University of Toronto, 1986 to 1987, Doctor of Juridical Science (1991)
Continuing Education:
  • French Language
    Obtained my Niveau C in French language training in 2013 through the Public Service Commission of Canada and Language Training Canada. Also attended numerous French immersion sessions organized by the Commissioner of Judicial Affairs.
  • 2014-2015 Study Leave
    During my study leave, I was associated with the National Judicial Institute ("NJI") and worked on various education programs and conferences. I worked with the NJI to plan and deliver two national conferences and two Alberta based conferences. I planned and participated in a one-day program of the joint NJI and Canadian Chapter of the International Association of Women Judges conference. I spoke at and attended another NJI conference and one sponsored by Osgoode Hall (which are further discussed below under "Teaching and Continuing Education").
Academic Awards:
  • 1989 - Social Science and Humanities Research Council of Canada Doctoral Fellowship
  • 1986 - Fraser Beatty Fellowship, University of Toronto
  • 1981 - Province of Alberta Graduate Studies Award
  • 1981 - Faculty of Law Bursary, University of Alberta
  • 1981 - Province of Alberta Graduate Studies Award
  • 1980 - Scholarship for Academic Excellence, McGill University
  • 1979 - Scholarship for Academic Excellence, McGill University
  • 1977 - Scholarship for Academic Excellence, McGill University

PART 6 - 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:
  • 2016 to present - Justice for the Courts of Appeal of Alberta, Northwest Territories and Nunavut
  • 2009 to present - Deputy Judge for the Supreme Court of Yukon
  • 2005 to 2016 - Justice for the Court of Queen's Bench of Alberta
  • 2001 to 2005 - Barrister & Solicitor and Partner, Code Hunter LLP, Calgary, Alberta (civil and constitutional law litigation firm)
  • 2000 - Expert Witness, Entitlement and Quantum of Compensation for the Wrongfully Convicted, Thomas Sophonow Inquiry
  • 1992 to 2005 - Professor of Law, University of Calgary
  • 1996 to 2000 - Barrister & Solicitor, Evans Martin & Wilson, Calgary, Alberta (criminal and constitutional law litigation firm)
  • 1992 to 1996 - Dean, Faculty of Law, University of Calgary
  • 1991 to 1992 - Acting Dean, Faculty of Law, University of Calgary
  • 1986 to 1987 - Visiting Professor, Osgoode Hall Law School, York University, Toronto, Ontario
  • 1984 to 1989 - Summer Sessional Instructor, Federal Department of Justice Common Law/Civil Law Exchange Program, Dalhousie University, Halifax, Nova Scotia, and University of Sherbrooke, Sherbrooke, Québec
  • 1985 to 1986 - Associate Professor, Faculty of Law, University of Calgary
  • 1982 to 1985 - Assistant Professor, Faculty of Law, University of Calgary
  • 1982 to 1983 - Researcher, Canadian Institute of Resources Law, Calgary, Alberta
Non-Legal Work Experience:
  • In 1991, I reviewed research grant applications for the Social Sciences & Humanities Research Council of Canada.
  • To pay for my education I babysat, was a camp-counselor, and worked in the fast food industry and in retail sales. I worked throughout law school and in the summer, I researched and wrote two books for the public on Québec Laws.
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.)

  • Canadian Judicial Council Education Committee Board Member (2015 to present)
  • Canadian Chapter of the International Association of Women Judges
       President (2016 to 2017)
       President (2015 to 2016)
       Treasurer (2013 to 2015)
       Board Member (2011 to 2017)
  • Canadian Bar Association
       Judicial Forum Board Member and Treasurer or Secretary (2014 to 2017)
       Member for a very long time
  • Canadian Institute for the Administration of Justice Board
       Education Committee Member (2015 to present)
       Board Member (2015 to present)
       Member for many years
  • Court of Queen's Bench Education Committee
       Co-Chair (2006 to 2011)
  • Alberta Judicial Advisory Committee for Federal Judicial Appointments
       Chair (2006 to 2011)
  • National Judicial Institute
       Board of Governors (2001 to 2005)
       Advisory Committee on Education Programs for Federally Appointed Canadian Judges (1997 to 2002)
  • Alberta Law Reform Institute Committee on Court of Appeal Reform
       Committee Member (2002 to 2004)
  • Alberta Institute for Law Reform
       Board Member (1998 to 2003)
  • Journal of Women’s Health and the Law
       Member of Editorial Board (2000)
  • Council of Canadian Law Deans
       Board Member (1992 to 1996)
  • Law Society of Alberta
       Honorary Bencher (1992 to 1996)
       Education Committee Member (1992 to 1996)
  • Joint Committee of the Canadian Bar Associations, the Law Society of Alberta and the Faculties of Law at the University of Calgary and the University of Alberta on Gender and Equality in the Legal Profession in Alberta
       Co-Chair (1992 to 1996)
       Board Member (1990 to 1992, 2000 to 2002)
  • Canadian Institute of Resources Law
       Executive Member, Board of Directors (1992 to 1996)
  • Canadian Research Institute for Law and the Family
       Executive Member, Board of Directors (1992 to 1996)
  • Western Judicial Education Centre
       Advisor (1989 to 1994)
Pro Bono Activities:
  • My pro bono activities have been for both legal and non-legal organizations, with legal activities being the majority. For example, almost all of my speaking engagements (which are further explained below) were pro bono as was my involvement in the committees and organizations listed above. I have also volunteered for community organizations, some of which are further described below under "Community and Civic Activities".
  • Additionally, as a lawyer, I provided pro bono legal service to many clients in need, however, such work often did not result in reported decisions. Three pro bono cases went to the Supreme Court of Canada. I acted for the Women's Legal Education and Action Fund in Winnipeg Child and Family Services (Northwest Area) v G(DF), [1997] 3 SCR 925 and R v Shearing, [2002] 3 SCR 33. In R v Mills, [1999] 3 SCR 668, I acted for the Alberta Association of Sexual Assault Centres. I also provided pro bono legal services to a wilderness coalition in a reported environmental law case.
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, National Judicial Institute, Canadian Institute for the Administration of Justice, etc).

In this section and others where requested, I have attempted to "list all" my activities. However, despite best efforts, it has been a long and full life and I apologize if I have forgotten to include any presentations or publications.

A. PROFESSOR OF LAW

I was a law professor for approximately 20 years, predominately at the Faculty of Law, University of Calgary. I also taught at York University and was part of a civil law/common law exchange summer program hosted at Dalhousie University and the University of Sherbrooke. The courses that I taught included Advanced Constitutional Law; Advanced Legal Functions; Business Associations; Contracts; Commercial Transactions, including Banking and Bills of Exchange; Feminist Legal Theory; Gender, Equality and the Charter; Legal Process; Legal Profession & Ethics; Personal Property Security Law; Torts and Loss Compensation; and Trial Evidence & Procedure.

At the University of Calgary, I helped plan the following conferences:

  • Is Reconciliation Possible? (this was an exploration of the Indian Residential Schools), University of Calgary and the Assembly of First Nations, Calgary, Alberta, March 2004
  • Changes in the Practice of Law and the Legal Profession: 20 Years Past/20 Years Future, 20th Anniversary Celebration, Education Program, University of Calgary, Faculty of Law, Calgary, Alberta, November 26, 1997
  • Socialization of Judges to Equality Issues, Banff, Alberta, May, 1986
  • The Charter and the Rights of the Mentally Disabled, University of Calgary, Faculty of Law and the Canadian Mental Health Association, Calgary, Alberta, May 4, 1985

As a professor, I gave presentations on topics such as legal ethics, legal roles and responsibilities regarding indigenous residential school litigation, equality, violence in law, and comparative constitutional rights. A list of presentations prepared for academic conferences and events include:

  • “The Role of Lawyers and Law Societies in Relation to Indian Residential School Litigation”, Is Reconciliation Possible?, University of Calgary and the Assembly of First Nations, Calgary, Alberta, March 2004
  • “The Ethics of Representation”, Wickwire Lecture on Professional Responsibility, Dalhousie Law School, Halifax, Nova Scotia, October 28, 2004
  • "Practical Issues concerning Charter Litigation", Pitblado Lecture, Law Society of Manitoba and the University of Manitoba, Winnipeg, Manitoba, December 10, 2002
  • “Equality Rights: What is Left to be Done?”, Pitblado Lectures, Law Society of Manitoba and the University of Manitoba, Winnipeg, Manitoba, December 9, 2002
  • "Equality Law after Law", University of Manitoba, Winnipeg, Manitoba, December 8, 2002
  • “Studies in Violence”, Canadian Society for Studies in Education, Learned Societies Conference, University of Calgary, Calgary, Alberta, June 15, 1994
  • “Violence in Law”, University of Calgary's Violence Awareness Week, Calgary, Alberta, November 30, 1993
  • "The Charter of Rights of Women and the Law on Sexual Assault", University of Alberta Twenty/Twenty Anniversary Celebration, Edmonton, Alberta, September 19, 1992
  • "Legal Aspects of Reproductive Technologies", Seminar for Faculty of Nursing, University of Calgary, Calgary, Alberta, April 13, 1992
  • "Comparative Constitutional Rights to Publicly Funded Health Care in Canada and the United States", Facing North/South Conference, University of Calgary, Calgary, Alberta, May 2, 1991
  • "L'Exclusion des Femmes en Droit", Les Journées Maximilien-Caron, Université de Montréal, Montréal, Québec, March 8, 1991
  • "Women as Lawmakers", The Women's Law Forum, University of Alberta, Edmonton, Alberta, March 7, 1991
  • "Women in the Legal Profession", Clara Brett Martin Lecture, University of British Columbia, Vancouver, British Columbia, February 8, 1991
  • "The Role of Law in the Subordination of Women", University of Windsor, Faculty of Law, Windsor, Ontario, March 30, 1990
  • "Women and Laws on Human Reproduction", President's Celebration of Excellence, University of Calgary, Calgary, Alberta, January 31, 1990
B. FEDERATION OF LAW SOCIETIES OF CANADA ANNUAL NATIONAL CRIMINAL LAW PROGRAM

I was a member of the faculty of the Federation of Law Societies of Canada, National Criminal Law Program ("NCLP") in 2008, 2012, 2013, 2014, 2016 and 2017. The conferences provide legal education to lawyers and the judiciary in matters of criminal procedure, legal ethics, the Charter, and substantive criminal law topics. As a faculty member, I wrote two papers for each conference which are included in my list of publications below. I also sat on panels discussing these topics and chaired panels and conducted workshops on other topics as well.

Further details of my presentations and panels are listed below:

  • Panel, “When is there a Reasonable Expectation of Privacy?” NCLP, Vancouver, British Columbia, July 2017
  • Panel, “Ask Me Anything About Ethics: A Roundtable Discussion of Difficult Ethical Problems” NCLP, Charlottetown, Prince Edward Island, July 4-8, 2016
  • Chair, “Advocacy Before Juries”, NCLP, Charlottetown, Prince Edward Island, July 4-8, 2016
  • Panel, “The Fault Element for Principals and Parties”, NCLP, Charlottetown, Prince Edward Island, July 4-8, 2016
  • Chair, “When the Witness Goes South: From s. 9 to K.G.B.”, NCLP, Halifax, Nova Scotia, July 7-11, 2014
  • Panel, “Jury Selection and Its Complications”, NCLP, Halifax, Nova Scotia, July 7-11, 2014
  • Panel, “Supreme Court of Canada Report: This Year’s Hits and Misses”, NCLP, Halifax, Nova Scotia, July 7-11, 2014
  • Panel, “Dealing with Vulnerable Witnesses”, NCLP, Ottawa, Ontario, July 8-12, 2013
  • Panel, “Assault, Abduction and Related Crimes”, NCLP, Ottawa, Ontario, July 8-12, 2013
C. NATIONAL JUDICIAL INSTITUTE

I have worked with the National Judicial Institute ("NJI") for several decades. During this time, I have helped develop and plan numerous conferences for the NJI, including the following:

  • Oral Judgments, Québec City, Québec, March 2016
  • Oral Judgments and Short Endorsements, Vancouver, British Columbia, March 2015
  • Good Judgment: Judicial Method and Decision-Making, Québec City, Québec, December 2014
  • Social Context Education in the 2nd International Conference on the Training of the Judiciary, Ottawa, Ontario, November 2004

I have also given presentations and prepared educational documents on topics such as Rape Myths and Stereotypes; Safety and Security of Women; Roles and Responsibilities after the Truth and Reconciliation Report; Balancing Rights in Sexual Assault Trials; Making Credibility Determinations; How to Prepare for Oral Judgments; Equality Analysis under section 15 of the Charter; Good Judgment; Judicial Method and Decision-Making; Sentencing; Culture in Legal Institutions and Courtrooms; Environmental Class Actions; Social Context Education; the Charter; Equality Rights under the Charter; Sections 15 and 1 of the Charter, among many others.

A list of my presentations to the NJI include:

  • A training video for Canadian judges about avoiding myths and stereotypes in sexual assault cases, NJI, Toronto, Ontario, September 5, 2017
  • "Our Role and Responsibilities after the Truth and Reconciliation Report”, Northern Courts Education Seminar, NJI, Yellowknife, Northwest Territories, May 3, 2017
  • “Balancing Rights in Sexual Assault Trials”, Sexual Assault Trials , NJI, Toronto, Ontario, March 30-April 1, 2016
  • “Making Credibility Determinations”, Oral Judgments, NJI, Québec City, Québec, March 9-11, 2016
  • “How to Prepare for an Oral Judgment”, Oral Judgments, NJI, Québec City, Québec, March 9-11, 2016
  • Panel, “Preparing for Oral Judgments”, Supreme Court of Newfoundland and Labrador Education Conference, NJI, St. John’s, Newfoundland and Labrador, November 19-20, 2015
  • “How to do an Equality Analysis under Section 15 of the Charter”, Judging as Canada Changes: Balancing Rights, NJI, St. John’s, Newfoundland and Labrador, April 2015
  • “Mothers and Daughters and Thirty Years of Section 15", Judging as Canada Changes: Balancing Rights, NJI, St. John’s, Newfoundland, and Labrador, April 2015
  • “How to Prepare and Deliver an Oral Judgment”, Oral Judgments and Short Endorsements, NJI, Vancouver, British Columbia, March 4-6, 2015
  • “Judicial Reasoning: More than a Hunch”, Good Judgment: Judicial Method and Decision-Making, NJI, Québec City, Québec, December 3-5, 2014
  • Chair, "Certainty and Uncertainty/Values and Choices: Discretion Revisited", Good Judgment: Judicial Method and Decision-Making, NJI, Québec City, Québec, December 3-5, 2014
  • "Evolution of Good Judgment", Good Judgment: Judicial Method and Decision-Making, NJI, Québec City, Québec, December 3-5, 2014
  • “Sentencing Principles”, Judges and Jails: An In-Depth View of Sentencing, NJI, Kingston, Ontario, October 19-23, 2014
  • “Oral Judgments", Art & Craft of Judging, NJI, Niagara-on-the-Lake, Ontario, August 2014
  • "Delivering Oral Judgments", The Art & Craft of Judging, NJI, St. Johns, Newfoundland and Labrador, August 2011
  • "Culture in Legal Institutions and Courtrooms", Judging Women: Aging, Mental Health and Culture, NJI, Vancouver, British Columbia, May 13, 2011
  • “Class Actions Strut Their Stuff”, Environmental Class Actions, NJI, Toronto, Ontario, April 2011
  • “Planning Social Context Education”, Federal Education Chairs Conference, NJI, Ottawa, Ontario, September 28-30, 2010
  • “The Nuts and Bolts of Social Context Education”, Federal Education Chairs Conference, NJI, Ottawa, Ontario, September 28-30, 2010
  • “Fundamental Breach in Contract”, Civil Law Seminar, NJI, St. John’s, Newfoundland and Labrador, May 7, 2009
  • “The Canadian Charter of Rights and Freedoms”, New Judges Program, NJI, Kananaskis, Alberta, September 27, 2004
  • “The Integration and Sustainability of Social Context issues into Judicial Education Programs”, The 2nd International Conference on the Training of the Judiciary, NJI, Ottawa, Ontario, October 31- November 5, 2004
  • “Applying Charter Rights”, New Judges Program, NJI, Victoria, British Columbia, November 2003
  • "Applying Equality Principles", Training Program, NJI, St. Andrews by-the-Sea, New Brunswick, September 2001
  • “Equality Rights under the Charter”, Early Orientation for New Judges, NJI, Ottawa, Ontario, November 24-28, 1997
  • "An Introduction to Equality Rights Under the Canadian Charter of Rights and Freedoms", The Intensive Study Program, NJI, Cornwall, Ontario, May 11, 1995
  • "Section 15 and Section 1 of the Charter", Criminal Law, Procedure and Evidence, NJI, Calgary, Alberta, March 16, 1995

The NJI has partnered with other groups and educational initiatives in organizing legal conferences that I have also assisted with, including the Canadian Institute for the Administration of Justice ("CIAJ"), Centro de Estudios de Justicia de las Américas ("CEJA"), and the Canadian Chapter of the International Association of Women Judges ("CCIAWJ"). The joint conferences that I assisted with planning include the following:

  • Safety and Security of Women, CCIAWJ & NJI, Toronto, Ontario, June 2017
  • JSCA Class Action Seminar, CEJA & NJI, Santiago, Chile, October 2016
  • Judging as Canada Changes: Balancing Rights, CCIAWJ & NJI, St. John's, Newfoundland and Labrador, April 2015

A list of my presentations for these joint conferences include:

  • “Understanding Women’s Safety in the Context of Human Trafficking”, Safety and Security of Women, CCIAWJ & NJI, Toronto, Ontario, June 7-9, 2017
  • "Certification Requirements for a Class Action", JSCA Class Action Seminar, CEJA & NJI, Santiago, Chile, October 5-7, 2016
  • "Practical Considerations in the Certification Process", JSCA Class Action Seminar, CEJA & NJI, Santiago, Chile, October 5-7, 2016
  • "The Role of Judges and Lawyers - Case Management and Practical Issues", JSCA Class Action Seminar, CEJA & NJI, Santiago, Chile, October 5-7, 2016
  • "The Way Forward", JSCA Class Action Seminar, CEJA & NJI, Santiago, Chile, October 5-7, 2016
  • “Choosing or Losing Equality”, Living at the Margins: Judging Fairly, Judging Responsively, CCIAWJ & NJI, Montréal, Québec, May 9, 2013
  • “The Law of Sexual Assault”, New Judges Seminar, CIAJ & NJI, St. Saveur, Québec, March 1997
D. CANADIAN INSTITUTE FOR THE ADMINISTRATION OF JUSTICE

In addition to being a member of the Board of the CIAJ and member of the Education Committee, over the years I helped plan various of its conferences. I am currently on the organizing committee and a speaker for the October 2017 CIAJ Annual Conference – The Charter Challenge Conundrum: The Clash of Rights and Values and the Canadian Cultural Mosiac, in Montréal, Québec. I also co-chaired CIAJ's conference in Calgary, Alberta in 2012 entitled the "The Courts and Beyond: The Architecture of Justice in Transition" and its conference in Banff, Alberta in 1995 entitled "Public Perception of the Administration of Justice".

I have spoken at many conferences and have participated in the NJI/CIAJ New Judge's Program, in which I have given presentations on Sexual Assault Law and Equality and the Judicial Enterprise, among many other topics.

My presentations for the CIAJ include the following:

  • "Overview of Conference Themes", The Courts and Beyond: The Architecture of Justice in Transition, CIAJ, Calgary, Alberta, October 13-15, 2012
  • “Sexual Assault Law”, New Judges Conference, CIAJ, Montréal, Québec, March 2003
  • "Equality and the Judicial Enterprise", Seminar for New Federally Appointed Judges, CIAJ, Saint-Sauveur, Québec, March 5, 2002
  • "Equality Principles", New Federally Appointed Judges Presentation, CIAJ, Montabello, Québec, March 4-9, 2001
  • "The Law of Equality and What it Means in Judicial Decision Making", New Federally Appointed Judges Conference, CIAJ, Mont Tremblant, Québec, March 2001
  • "Sexual Assault Law", Seminar for New Federally Appointed Judges, CIAJ, Montabello, Québec, March 2000
  • "Sex Equity and Biological Difference and Sex Equality: Some Preliminary Observations", Discrimination in the Law and Administration of Justice, CIAJ, Kananaskis, Alberta, October 13, 1989
E. CANADIAN BAR ASSOCIATION

Most recently, I was a member of the Judicial Forum Board of the Canadian Bar Association ("CBA"). We engaged in educational activities, held meetings and planned conferences. I was very involved in the CBA's Diversity and Equality Initiatives. I produced a manual to train people on equality and chaired the Committee which produced "The Legal Duty to Accommodate Lawyers with Family Responsibilities". I also assisted in organizing the CBA conference on Equality of Women in the Legal Profession in Ottawa, Ontario, in November 1995.

I have spoken at many CBA conferences on topics including Ethics; Human Rights Issues in Employment; the Art of Persuasion; the Role of the Judge; and Equality. I have spoken at CBA subsections in Alberta, the Yukon and the Northwest Territories.

A list of my presentations for the CBA, its regional branches and subsections include:

  • “Equality in the Legal Profession”, Diversity in the Legal Profession Seminar, CBA, Calgary, Alberta, May 8, 2017
  • “Administrative Law; A View from the Bench”, Administrative Law Section, CBA, Calgary, Alberta, January 12, 2017
  • “The Art of Persuasion”, Building a Better Lawyer Conference, CBA, Calgary, Alberta, August 25, 2015
  • “Aggravating Damages”, Labour Law Section, CBA, Calgary, Alberta
  • “Ethics: Problems and Best Practice”, CBA, Calgary, Alberta, 2008, 2009 and 2010
  • “Human Rights Issues in Employment Matters”, CBA, Calgary, Alberta, June 14, 2006
  • “Twenty Years of Equality Rights”, Saskatchewan Bar Association, March 24, 2005
  • “Using the Charter in Your Practice”, Yukon Bench and Bar Association, Whitehorse, Yukon, September 22, 2005
  • “Litigation in Equality Cases”, Constitutional Subsection, CBA, Edmonton, Alberta, March 8, 2004
  • "Equality in the Legal Profession”, Young Lawyers, CBA, Calgary, Alberta, April 25, 2002
  • "Damages for Wrongful Conviction", Mid-Winter Meeting, CBA, Saskatoon, Saskatchewan, January 26, 2001
  • "How Will the Law Regulate New Reproductive Technologies", Mid-Winter Conference, CBA, Manitoba Branch, Winnipeg, Manitoba, February 1999
  • "Recent Developments in New Reproductive Technology", CBA, St. John's, Newfoundland and Labrador, August 24, 1998
  • “Recent Issues in Constitutional Law”, CBA, Calgary, Alberta, December 4, 1997
  • “Learning About Equality as a Matter of Professional Competence”, Law Day Presentation, Manitoba Bar Association, Winnipeg, Alberta, April 17, 1997
  • “Reproductive Technologies”, South Health Law Subsection, CBA, Calgary, Alberta, March 14, 1996
  • “Talking About Equality to Lawyers”, Equality of Women in the Legal Profession, CBA, Ottawa, Ontario, November 25, 1995
  • “Human Rights in the Workplace: The Duty to Accommodate”, Continuing Legal Education Seminar, CBA, Calgary, Alberta, April 7, 1995
  • “Sexual Harassment in the Workplace”, Public Lecture Series, CBA, Calgary, Alberta, March 24, 1994
  • “The Changing Nature of Equality”, CBA, Jasper, Alberta, February 20, 1994
  • “Gender Equality in the Legal Profession”, Mid-Winter Meeting, Alberta Bar Association, Calgary, Alberta, January 28-29, 1994
  • "The Gender and Inequality Task Force: Policies Put Into Practice", Young Lawyers Section, Alberta Bar Association, Calgary, Alberta, April 22, 1993
  • Chair, "Charter Law - Ten Years of Charting the Charter", Mid-Winter Meeting, Alberta Bar Association, Edmonton, Alberta, January 29, 1993
  • "Women in the Legal Profession: The Dynamics of Exclusion", Task Force on Gender Equality, Gender Equality: A Challenge for the Legal Profession, CBA, Toronto, Ontario, October 29-31, 1992
  • "The Right to Die", Calgary Medical Society & CBA, Calgary, Alberta, February 18, 1992
  • "Women in the Legal Profession", Annual Meeting, Alberta Bar Association, Calgary, Alberta, January 30, 1992
  • "Legal Aspects of Bio-Ethics Issues into the 21st Century", Mid-Winter Meeting, CBA, Edmonton, Alberta, February 1, 1991
F. COURT OF QUEEN'S BENCH OF ALBERTA EDUCATION COMMITTEE

I co-chaired this committee for approximately nine years. In conjunction with the NJI, we put on a three-day education conference per year on different topics, which judges from the Northwest Territories often attended. We also organized a one-day conference each year on more skills-based matters, such as case management, and judicial resolution techniques. I have also helped organize joint initiatives between the Alberta Branch of the CBA and the Court of Queen's Bench of Alberta ("ABQB").

I presented at these annual conferences on the following topics:

  • Chair, "Bench and Bar Joint Session: Civility, Communication and Ethics" ABQB & NJI, Calgary, Alberta, January 28, 2016
  • Chair, “Generating Solutions in Family Law: Practical Tips and Best Practice” ABQB & NJI, Red Deer, Alberta, September 25, 2015
  • Chair, "Hearsay", ABQB &NJI, Edmonton, Alberta, January 28, 2015
  • Chair, The GateKeeper's Dilemma: Experts, Credibility and Common Sense", ABQB & NJI, Calgary, Alberta, January 31, 2014
  • Facilitator, "Bench and Bar Discussion: The Practical Use of New Technologies In and Out of the Courtroom", ABQB & NJI, Calgary, Alberta, January 30, 2014
  • Chair, "What We Know About Detection Deception", ABQB & NJI, Calgary, Alberta, January 29, 2014
  • “The Ideals and the Challenges of our Respective Roles”, ABQB & NJI, Edmonton, Alberta, January 31, 2014
  • “A Trial Judge’s Case Management Powers”, ABQB, Red Deer, Alberta, October 31, 2013
  • “The Role of the Judge”, ABQB & CBA, Edmonton, Alberta, January 28, 2013
  • “Best Practices and Guidelines”, ABQB, Red Deer, Alberta, October 12, 2012
  • Chair, “Critical Issues Emerging from the Goudge Inquiry”, ABQB & NJI, Calgary, Alberta, January 26, 2012
  • Chair, “Expert Evidence: The Goudge Inquiry and Pediatric Forensic Pathology”, ABQB & NJI, Calgary, Alberta, January 26, 2012
  • Moderator, “Tort Law Update: Causation, Liability and Loss”, ABQB & NJI, Calgary, Alberta, November 14, 2008
G. OSGOODE HALL LAW SCHOOL CONTINUING EDUCATION

I was on the Advisory Committee for Constitutional Cases (2001 to 2003). During my tenure on this committee, I gave a presentation entitled "Equality Jurisprudence" in Toronto, Ontario on April 6, 2001.

I have also been involved with Osgoode Hall Professional Development, and have given two seminars: “Technology and Crime”, Osgoode Hall Professional Development Seminar, Calgary, Alberta, January 23, 2015 and “The Law of Search and Seizure”, Osgoode Hall Professional Development Seminar, Banff, Alberta, January 23, 2013.

H. CANADIAN INSTITUTE

In 2004, while a lawyer, I was the co-chair of the Canadian Institute's conference on Bill 53. I presented on:

  • “Bill 53: the New Automobile Insurance Legislation and the Cap on Non-Pecuniary Damages”, Canadian Institute, Calgary, Alberta, October 30, 2004
  • “Recent Issues in Personal Injury Cases: Punitive Damages and Lost Years”, Canadian Institute, Calgary, Alberta, December 9, 2002
I. INTERNATIONAL EDUCATION INITIATIVES

Over the years, I have given numerous presentations abroad, including in Chile, China, India, England, Mexico, Australia, Switzerland, South Africa, the United States, and New Zealand. My presentation topics included, among others, Judicial Education; Social Context; Gender Equality and Bias; Tort Liability of Public Officials; Workplace Equality; Violence against Women; and Class Actions.

A list of my educational international presentations includes:

  • “What Canada has done in Relation to Gender Equality”, Conference Sponsored by the Canadian Government for Mexican Judges, Mexico City, Mexico, March 14-15, 2013
  • “Judicial Education on Social Context Issues”, International Organizations for Judicial Training Conference, Sydney, Australia, October 2009
  • “The Tort Liability of Public Officials”, First Canadian Supreme Court and English House of Lords Exchange, London, England, September 28-30, 2005
  • “Access to Justice”, First South Asia Regional Judicial Colloqium on Access to Justice, Mumbai, India, November 14-16, 2003
  • “A Comparison of Equality Rights in Canada and the United States”, Canadian-American Appellate Judges Seminar, Victoria, British Columbia, October 26-29, 2003
  • “Designing Judicial Education Programs with Equality in Mind”, National Association of Women Judges of South Africa, Capetown, South Africa, October 2003
  • “Equality Rights under the Canadian Charter of Rights and Freedoms and the Status of Women in Canada”, 13th Commonwealth Law Conference, Melbourne, Australia, April 2003
  • "Workplace Equality", Association of Legal Administration for Canada and the United States, Calgary, Alberta, September 13, 2002
  • "Maternity Leave in Law Firms", New Zealand Triennial Conference, Rotorua, New Zealand, April 1999
  • "Women and Equality Rights in Canada", Public Lecture, University of Wellington Faculty of Law, Wellington, New Zealand, April, 1999
  • “Violence Against Women in Canada”, Conference on the Canadian-China Judges Training Project, Beijing, China, December 1999
  • “Gender Bias in New Zealand Law”, Plenary Address, New Zealand Triennial Law Conference, Rotorua, New Zealand, 1997
  • "Women, Equality and the Legal Profession" Auckland Women Lawyers Association, Auckland, New Zealand, May 13, 1997
  • "Power Imbalance and Gender Bias in the Law: Gender Equality in the Courts", New Zealand Judiciary Conference, May 1997
  • “Equality, Race, Gender and Class Bias in Judicial Education”, various presentations to judges and other organizations in Capetown, Pretoria and Johannesburg, South Africa, February 24 to March 1, 1996
  • “Entrenched Constitutional Rights to Equality in Canada”, Association of Labour Lawyers, Perth, Australia, November 1996
  • “Legal Education and Fiscal Restraint”, University of Western Australia, Perth, Australia, November 1996
  • "Women in Legal Education", Law School Admission Council Annual Meeting and Educational Conference, St. Petersburg Beach, Florida, May 30, 1996
  • "Gender Bias and Judicial Neutrality", Equality and Justice Conference, Australian Institute of Judicial Administration, Ballarat, Australia, October 18-20, 1995
  • “Meeting Resistance to Claims There is Gender Bias in Law”, Symposium on Gender Bias and the Law: Ideas for Education and Action, University of Chicago School of Law, Chicago, Illinois, December 2-3, 1994
  • "Identifying and Addressing Gender Inequalities", International Centre Colloquium, Civil Societies and the Establishment of Democratic States: A Discussion with Members of the Gorbachev Foundation, Calgary, Alberta, June 9, 1992
  • "The Judicial and Legislative Treatment of Domestic Violence: Case Studies in Gender Bias", Workshop, International Project to Promote Fairness in Judicial Processes, Geneva, Switzerland, February 5, 1992
  • "Comparative Constitutional Rights to Publicly Funded Health Care in Canada and the United States", Stanford Lecture Series, Canadian Institute for Advanced Legal Studies, Palo Alto, California, July 13, 1990
J. WESTERN JUDICIAL EDUCATION CENTRE

In the early 1990s, I was involved as a program coordinator and instructor at a three-day seminar on judicial gender bias. I spoke on "The Social Context of Sexual Assault", at the Judicial Education Program on Gender Equality, June 14, 1991. I also helped build their "train the trainers" program.

K. OTHER EDUCATIONAL INITIATIVES

Over the years, I have been invited by other legal organizations, courts and governments to speak on many topics:

  • “Oral Judgments: When and How”, Court of Queen’s Bench of Manitoba Education Seminar, Winnipeg, Manitoba, October 17-18, 2013
  • "Administrative Remedies", Canadian Association of Human Rights Agencies, Calgary, Alberta, June 15, 2011
  • “Damages, Specific Performance and Personal Property Remedies”, Newfoundland Provincial Court, St. John’s, Newfoundland and Labrador, October 13, 2010
  • “The Meaning of Section 15 Equality Rights”, British Columbia Superior Court Justices, Vancouver, British Columbia, November 9, 2010
  • “Evidence in Action”, University of Calgary, Faculty of Law, Calgary, Alberta, January 2009 and 2010
  • “Remedies in Contract and Tort”, Association of Provincial Court Judges in British Columbia, Victoria, British Columbia, May 30, 2004
  • “Violence Against Women and the Role of Constitutional Rights”, Conference on Violence Against Women, Ontario Crown Counsel and Victim Services Secretariat, Toronto, Ontario, March 2004
  • “An Update on the law of Torts”, Alberta Provincial Court Judges Association, Red Deer, Alberta, January 2004
  • “Tort and Contract Overlap: Issues and Problems”, Alberta Provincial Court Judges Association, Canmore, Alberta
  • "How to Litigate Equality Rights Cases", Court Challenges Program, Winnipeg, Manitoba, December 10, 2002
  • "Exploring Reproductive Technologies", National Association of Women and the Law Conference, Calgary, Alberta, May, 2000
  • “The Disclosure of Private Records in Sexual Assault Cases”, Transforming Women’s Future: Equality Rights in the New Century, Women at the Table: Legal Strategies for Political Change, Vancouver, British Columbia, LEAF, November, 1999
  • "Personhood and Equality", Transforming Women's Future: Equality Rights in the New Century, Women at the Table: Legal Strategies for Political Change, LEAF, Vancouver, British Columbia, November, 1999
  • "Gladue: A Case Analysis of Equality and the Sentencing of Aboriginal Offenders", Alberta Provincial Court Judges Association's Annual Conference, Calgary, Alberta, September 15, 1999
  • "Judging in the Next Millennium", Canadian Association of Provincial Court Judges, Calgary, Alberta, October 8, 1998
  • “Accommodation and Flexible Work Arrangements”, Issues in Equality, Manitoba Department of Justice, Winnipeg, Manitoba, April 18, 1997
  • “Human Rights in the Workplace and the Importance of Diversity Initiatives”, City of Edmonton Diversity Workshop, Edmonton, Alberta, April 1997
  • “Criminalizing Commercial Surrogacy”, Alberta Civil Liberties Research Centre, Calgary, Alberta, February 5, 1997
  • “The Duty to Accommodate in Human Rights Law”, Saskatchewan Employment Equity Practitioners Association, Saskatoon, Saskatchewan, October 23-24, 1996
  • "Gender Equality", Department of Justice Management Committee Meeting-Workshop-Seminar, Cornwall, Ontario, May 22, 1996
  • "Diversity in the Workplace", Edmonton City Council, Edmonton, Alberta, April 25, 1996
  • "Changing Practices in the Legal Profession to Foster Equality”, College of Law Practice Management Annual Induction Ceremony, Toronto, Ontario, April 20, 1996
  • “Employment Equity and Diversity in Relation to Law: Examples of University Practices in Equity”, Public Service Commission of Canada, Calgary, Alberta, November 8, 1995
  • “What Every Lawyer Needs to Know About Equality”, Saskatchewan Legal Education Society, Saskatoon, Saskatchewan, November 17, 1994
  • “A Firm Commitment to Gender Equality Policies - Present, Priceless and Possible”, Saskatchewan Legal Education Society, Regina, Saskatchewan, November 16, 1994
  • “Using International Law in Equality Cases”, International Women Judges Foundation, Toronto, Ontario, April 30, 1994
  • “What Gender Bias Looks Like”, Gender Equality Committee of the National Judicial Council, Vancouver, British Columbia, February 24-26, 1994
  • "The Courage to Create Equality”, LEAF, Regina, Saskatchewan, October 22, 1993, Calgary, Alberta, October 29, 1993, Winnipeg, Manitoba, October 20, 1993
  • “Gender and Equality in the Legal Profession”, Law Society of Alberta, Calgary, Alberta, October 18, 1993
  • "Law and Genetics: Can the Government Ban Germ-Line Research", 1993 Annual General Meeting of the Royal Society of Canada, Ottawa, Ontario, May 29, 1993
  • "Gender Equality In The Courts", Ontario Court of Justice (Provincial Division), Toronto, Ontario, November 16-17, 1992
  • "The Changing Nature of the Family", Annual Family Service Canada Conference, Regina, Saskatchewan, October 22-24, 1992
  • "Issues Affecting Women in the Legal Profession", Regina Chapter Luncheon, National Association of Women and the Law, Regina, Saskatchewan, October 23, 1992
  • "Gender Equality Facilitator Training Session", Ontario Court of Justice (Provincial Division), Toronto, Ontario, February 14-17, 1992
  • "Proving Gender Bias in the Law and the Legal System", A Research Consultation on How to Study Gender Bias in the Law, the Courts and the Legal Profession, Vancouver, British Columbia, November 1-2, 1991
  • "The Many Forms of Gender Bias in the Law", Annual Conference of the Saskatchewan Provincial Court Judges, Saskatoon, Saskatchewan, October 31, 1991
  • "Women, Health Care and the Constitution", Canadian Centre for Constitutional Studies, Women and Constitutional Reform, October 25-26, 1991
  • "Toward a Women Centred View of Legal Controls on Human Reproduction", Human Rights in the Twenty First Century, Banff, Alberta, November 9-12, 1990
  • "The Canadian Law on Freedom of Expression", XIII Congress of the International Academy of Comparative Law, Montréal, Québec, August 1990
  • "Marital Rape", Western Association of Provincial Court Judges, Lake Louise, Alberta, May 17, 1990
  • "Multiculturalism & Access to Justice", Roundtable Discussion, Federal Department of Justice and University of Windsor, 1990
Community and Civic Activities:

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

  • Prostate Cancer Institute
       Board Member (2002 to 2005)
  • Y.M.C.A.
       Board Member (1999 to 2003)
  • Advisory Committee on the Interim Moratorium on New Reproductive and Genetic Technologies
       Chair (1995 to 1997)
       Board Member (1997 to 1999)
  • Canadian Mental Health Association, Calgary
       Board Member (1988 to 1991)
Honours and Awards:
  • 2016 - Canadian Lawyer, Top 25 Most Influential
  • 1997 - Law Society of Alberta Certificate of Merit
  • 1996 - Conferral of Queen's Counsel
  • 1996 - Law Society of Alberta Award for Distinguished Legal Scholarship
  • 1991 - Participant in the Governor General's Study Course of Canada (travelled to Germany)
  • 1990 - Y.W.C.A. Woman of Distinction Award for the Advancement of Women, Calgary, Alberta
  • 1990 - Participant in the President's Celebration of Excellence at The University of Calgary, Calgary, Alberta
  • 1989 - Social Science and Humanities Research Council of Canada Doctoral Fellowship
  • 1988 - Superior Teaching Award Honourable Mention, University of Calgary Students' Union
  • 1985 - Superior Teaching Award, The University of Calgary Students' Union

PART 7 - SKILLS ASSESSMENT

1 - List and forward, in separate e-mails for each document, five decisions, legal documents (factums, etc) or publications that you have written that demonstrate your analytical skills, your ability to resolve complex legal problems and your excellence in legal writing. Provide, below, a synopsis of no more than 300 words for each decision/document/publication and explain your reason for selecting it

Synopsis 1:

"Balancing Individual Rights to Equality and Social Goals", (2001) 80 Canadian Bar Review 299-373

I was invited to participate in a conference organized by the Supreme Court of Canada on September 27-29, 2000 to celebrate its 125th anniversary entitled "Symposium on the 125th Anniversary of the Supreme Court of Canada: Legacy and Challenges".

The goal of the multi-day colloqium was to explore and examine the Court’s jurisprudence in key areas, and in the presence of members of the Court. This article reflects my oral comments and was published subsequently in the Canadian Bar Review. In it, I explained the Court’s approach to the conceptually complex equality rights provisions in the Charter and articulated how it seeks to balance social goals with equality and other Charter rights. I outlined the results of the Court’s equality cases; examined the evolving test for establishing a breach of section 15; questioned whether rights were being balanced at the breach determination stage; explained the flexible standards of review under section 1 of the Charter; and concluded with suggestions for a principled approach to balancing rights.

I hope this example of my academic writing demonstrates my analytical skills, my ability to synthesize difficult cases and concepts, to formulate a clear, careful and cogent critique and to communicate persuasively and tactfully. The article also shows my preference to include more than a critique and to propose possible solutions. In later cases, the Supreme Court referred to my suggestions about how to move forward in support of a shift in direction in Canadian equality jurisprudence.

Synopsis 2:

S(H), Re, 2016 ABQB 121, 610 AR 1 (Alta QB)

This was the first case in Canada in which an individual applied for physician assisted death after the Carter II decision of the Supreme Court, which allowed personal constitutional exemptions if certain preconditions were met.

I chose this decision because it shows how judges are often required to confront the pressing issues of our time. The underlying constitutional principles were articulated by the Supreme Court in Carter I and II. My role was to apply them in the context of one person and on a particular evidentiary record. The applicant came to court on Thursday and sought permission to end her life on the following Monday. Time was of the essence, her decision was personal, permanent and profound, and I was called upon to respond fully and quickly. It was important to show respect for the full humanity of the individual claimant, as well as to grapple with the various important legal principles engaged by the question before the court.

Synopsis 3:

Orphan Wells Association v Grant Thornton Limited, 2017 ABCA 124, 50 Alta LR (6th) 1 (Alta CA)

This decision raises issues concerning the division of legislative power between the federal and provincial governments. The factual context concerns the fate of environmental obligations upon insolvency: specifically, what happens to the end-of-life well obligations when a licensee with the right to exploit oil and gas resources in Alberta declares bankruptcy.

At issue were two pieces of complex legislation: the federal Bankruptcy Act and Alberta’s regulations about the grant and transfer of licenses. All parties conceded that each piece of legislation was within the constitutional competence of the relevant legislative body. The issue was whether these federal and provincial provisions could live together or whether they were in such conflict that the constitutional law doctrine of paramountcy would apply to give priority to the federal law. The majority determined that there was a conflict and the federal law was paramount. I disagreed, concluding that when properly interpreted, these federal and provincial provisions could co-exist. I enclose the full judgment so the context is clear.

This case called for the interpretation and analysis of intricate and detailed legislation and raised important questions about federalism and division of powers. I include this dissent because often decisions of the Court of Appeal are those of the panel as a whole and authorship is shared. However, in this case, the analysis is mine alone. I also offer this judgment in an attempt to illustrate an ability to express a contrary view in a respectful manner.

Synopsis 4:

R v Paxton, 2012 ABQB 96, 531 AR 233 (Alta QB)

I enclose one judgment from the case of R v Paxton. Mr. Paxton faced five criminal charges involving two complainants. One victim was Mr. Paxton’s partner in a moving business. Mr. Paxton dropped this man off at a hospital in a seriously depleted physical state. The other victim was a young employee in the moving business. I gave three main judgments in this long trial, in addition to various interlocutory rulings. The first decision was delivered orally and I found Mr. Paxton guilty of four of the five offences contained in the indictment. The second judgment is the one provided to you. It addresses a defence motion for a stay of proceedings, which alleged over thirty Charter breaches committed by the police and the Crown. The third judgment granted the Crown’s application to have Mr. Paxton declared a dangerous offender.

I chose this decision to illustrate my ability to complete a complex criminal matter. I was required to organize and structure a large amount of evidence and to respond to detailed legal argument. The decision is lengthy because the allegations were numerous and serious and many Charter rights and criminal law concepts were engaged. As a trial judge, I made a conscious decision to answer all defence claims. In this manner, Mr. Paxton would appreciate that he received a full and fair hearing and the individuals alleged to have engaged in misconduct would have the court’s response on the public record. I was also mindful that this was a long and difficult trial for all concerned. I sought to foreclose the possibility of a successful appeal on the basis that I had missed or failed to address a defence argument.

This decision was upheld on appeal and leave to the Supreme Court was denied.

Synopsis 5:

R v Leclerc, 2011 YKSC 13, 2011 CarswellYukon 13 (YT Terr Ct)

This decision concerned the authority of judges to impose fines for offenses under the Yukon Highways Act. The Act provided that if no express fine was prescribed for a particular offense, the person was “liable to a fine of $500”. Did this wording mean there was a mandatory fine of $500 or did the trial judge have the discretion to impose a fine of up to $500? This was the first case which addressed this important question. Using the modern approach to statutory interpretation, I decided that the provision was intended to give trial judges the discretion to affix a proportionate fine in all the circumstances. The words were interpreted according to their plain meaning, but with an understanding of their purpose, rationale and context.

I chose this case, even though it is an imperfect transcription of an oral judgment, in part because it is short and illustrates my ability to get quickly and convincingly to the point when necessary. The decision also illustrates my ability to write clearly, concisely, and cogently. The judgment considered competing lines of authority, Hansard evidence, and the context of the impugned provision in fifteen paragraphs. It also represents one of hundreds of oral judgments I delivered as a trial judge.

2- Describe the five (5) most significant cases or matters that you dealt with while in legal practice or as a judge and how you dealt with them:

1. Work on the Indian Residential School Settlement

When I was a lawyer and academic, I was asked by Grand Chief Phil Fontaine of the Assembly of First Nations to become a member of a team tasked with reformulating an approach to redress the harms caused by the forced attendance of tens of thousands of Indian children at residential schools. At the time, there were numerous class actions brought by private law firms against governments and churches. The federal government had introduced an alternative process to litigation, which was limited to compensating individuals, but only after they had proven their attendance, personal losses and recoverable damages.

I was one of three lawyers on a multi-disciplinary team which included survivors, elders, and Indigenous People from across Canada. The enormity of the harms suffered called for a different approach based on the wider themes of truth and reconciliation. We worked together to formulate a comprehensive settlement: a recognition of the truth of what had occurred; a meaningful apology; redress for inter-generational and cultural harms; personal compensation in an accessible process; community rejuvenation; and the establishment of a Truth and Reconciliation Commission. The month before I was appointed a judge, our discussions with the federal government resulted in the appointment of former Supreme Court Justice Frank Iacobucci to implement these discussions and to include the remaining class actions for resolution. The result was the Indian Residential Settlement Agreement. In addition to helping conceptualize the overall components of the settlement, I worked closely on the compensation scheme for individuals, which was now only one part of a larger and more significant whole. Under our system, attendance based on government records triggered automatic compensation, without making survivors explain or prove their personal victimization. While individual abuse could still be the subject of a personal claim before a special tribunal, ending the need for each survivor to prove individual damage was a key aspect of the settlement: a concession that attendance alone at residential schools caused recognized and compensable personal, familial, community and inter-generational harms.

This was among the most meaningful and challenging work of my career. Even though I had studied equality rights, I was confronted by how privilege had insulated me from being fully aware of what had truly happened in residential schools. By contrast, those affected could not choose to be unaware of a lived experience with such devastating and lasting consequences: families and communities torn apart; missing children; children prohibited from speaking their languages; abuse; isolation; and loneliness. This “education” was intended to teach these children not to value themselves, their families, their culture, customs and heritage. This experience reinforced in me the recognition that everyone has a personal responsibility to learn about the lives of others. As a result, I have become immersed in learning and teaching about the Gladue principles in sentencing, and have read the Royal Commission on Aboriginal Peoples and the Truth and Reconciliation Committee Report.

2. Work Analyzing Compensation for Wrongfully Convicted

I was part of a team of three lawyers who sought compensation for David Milgaard to address the losses he suffered when wrongfully convicted of the rape and murder of Saskatchewan nurse Gail Miller. The Supreme Court concluded that David’s conviction was unsafe after a unique process, in which the Court heard evidence for five days, including the cross-examination of the man eventually convicted for this rape and murder. DNA testing subsequently confirmed that David Milgaard was innocent. As a result, the federal government appointed retired Chief Justice Alan Gold from Québec to negotiate compensation. What was contemplated was an ex gratia payment from the public purse, and there was therefore a pressing need for a principled approach to achieve a just and fair settlement.

I wrote the legal brief that helped support the eventual financial settlement. The brief outlined the complex and long history of what happened to David. I read 23 years of David’s prison records to understand his full experience. I interviewed David and his family to understand the toll that his wrongful prosecution, conviction, and imprisonment had taken on them. At the time, David was Canada’s longest-serving prisoner, even though he was eligible for parole and would likely have been freed after seven years in prison if he had “taken responsibility” for his crime. Instead, David steadfastly refused to admit that he had raped and killed this young woman. Despite a very difficult time in prison, this singular act of moral courage led to the question which animated our analysis of his losses: with this strength of character, who could this young man have been if his life had not been interrupted by his wrongful conviction?

Legally, there was little precedent, authority or even prior experience in Canada on how to approach compensation for the wrongfully convicted. This new question therefore called for the development of first principles for analysis of compensation for those wrongfully convicted. I canvassed existing and potentially applicable legal principles, which included available grounds of liability; the manner in which damages could and should be calculated; whether there should be any limit on such awards; and the role of punitive, aggravated and exemplary damages in such cases. The work required a synthesis of many areas of the law, as well as comparative research into approaches taken by other countries.

Based on my work for David Milgaard, former Supreme Court Justice Peter Cory, who chaired the Inquiry into the Wrongful Conviction of Mr. Thomas Sophonow, asked me to provide a research paper, and give expert evidence about how to compensate the wrongfully convicted. Justice Cory sought a transparent, sound and reliable model of compensation. In his final report, Justice Cory cited the principles articulated in my materials.

Wrongful convictions in the justice system underscore that even well-intentioned people can make mistakes. This realization counsels humility, great care and constant questioning. Working on compensation for the wrongfully convicted required the synthesis of a vast quantity of material and the adaptation and application of principles to a new area of law. There was a need for a solid philosophical, legal, and moral basis for the adopted principles, while recognizing that these life-changing losses could never be compensated by money alone.

3. Judicial Training on Social Context and Equality Education

In 1986, I was one of two organizers of a three-day conference that addressed the Socialization of Judges to Equality Issues. This conference resulted in the publication of the book “Equality and Judicial Neutrality” in 1987. The introduction of constitutionally entrenched rights promised a different form of constitutional analysis under which all substantial law, evidentiary principles, and legal processes would be scrutinized for compliance with Charter rights and values. History showed how even expansive and progressive statements of rights by Parliament may not yield the promised protections if read in an unduly restrictive manner. The goal of the conference was to explore judicial experience and education on a range of equality issues because it was the judiciary that would interpret and apply Canada’s new equality rights. It was an interdisciplinary inquiry focused on the social processes by which judges develop their attitudes, expectations and values.

When my co-organizer and I distributed the initial program for the conference, I received various forms of criticism about this initiative, including unsigned mail telling me to be careful and an underlined version of the Alberta Code of Professional Conduct telling lawyers not to speak ill of the administration of justice. We were also told that “some judges” were thinking of citing us in contempt of court for the suggestion that the law may contain a gender- or race-based bias and that the judiciary may need further education on equality issues.

At this very early stage in social context education, some people saw law as value neutral, requiring only the interpretation of what they perceived to be black letter legal standards. This viewpoint failed to recognize that a judge’s understanding of the life experience of others is essential to impartial and informed decision-making. Over the years, these ideas have changed. Supreme Court jurisprudence, educational programs and the Ethical Principles for Judges require an appreciation of equality and speak to a “heightened judicial objectivity”.

However, at the time we decided to meet criticisms head on and went to see Chief Justice Moore of the Alberta Court of Queen’s Bench, despite the threatened contempt citation. We had a thorough discussion and realized we shared a deep respect for the judicial role and a similarly robust commitment to justice for all. Finding common ground allowed us to talk across and through our differences. Indeed, Chief Justice Moore agreed to provide the opening remarks at the conference. His presence and comments at the conference showed the importance of judicial leadership on this topic. This entire experience taught me that it takes courage to challenge conventional wisdom and build support for necessary change: that speaking the truth without fear reveals that people of goodwill often have more that unites them than divides them.

4. Work as a Trial Judge and Cases Involving Physician Assisted Death

I feel very fortunate to have been a trial judge for twelve years. Judges who sit in trial courts perform many tasks and I have had front line and first-hand experience with the administration of justice in Alberta and the Yukon. I enjoyed the responsibility and discipline of exercising independent judgment to resolve disputes. Regardless of the subject matter, a trial judge operates in real time and on the record.

The physician assisted death case I provided as a writing sample is also an example of my contribution as a trial judge. It captures the emotional cauldron of the trial court and the pressure to provide a timely decision. As the first such case, there were no established procedures or precedents addressing the type of evidence required on the tests to be applied. The applicant filed the notice of application and supporting documentation and requested an expedited hearing. She asked to schedule the hearing in the afternoon because she wanted to attend court and needed time to ready herself for the trip to the courthouse.

There was correspondence between her counsel and the court beforehand about procedural issues, such as notice requirements. In that correspondence, I had asked if there would be any motions in respect of confidentiality. Her lawyer told me that the applicant did not seek anonymity or a closed courtroom. On the afternoon of the hearing, the applicant arrived in her wheelchair with her husband and best friend. There were also others in the court, including other lawyers and the media. This caused the applicant obvious distress. Her lawyer then asked for a publication ban on her name, to refer to her by initials, and for a private hearing. These exceptional applications operate outside the open courts principles. Even though I believed these matters had already been addressed, trial judges often face unexpected applications and are obliged to respond accordingly.

I heard argument from the applicant, and allowed those in the court to speak to address their interest in the matter and their support for the open courts principle. In the end, I granted the applicant’s request for confidentiality for reasons explained in my oral judgment. She wanted to be part of the judicial decision-making process. She arranged to be physically present at the hearing, despite her advanced ALS, to witness an application that went to the core of her life, liberty and security of the person. The open courts principle is an important one, but it was also necessary to consider whether it might in some cases operate to deter individuals from seeking this unique type of court permission. Not only were her private medical records in evidence, she was afraid that if her identity was made public, it would prevent her from obtaining the physician assisted death she requested. She was also concerned that the attendant publicity might create difficulties for herself and her family. During the hearing, the applicant had trouble breathing and required immediate medical care. When the courtroom became a treatment room, her request for a hearing in which the public was excluded took on an additional dimension. Taking into account the unique context, and balancing the societal interests with those of this woman before me, I decided in favour of her privacy and dignity.

After her death, her husband returned to court to ask that the publication ban on her name be lifted as they had not appreciated its full implications. They wanted to name her in an obituary and speak openly about her life, and her decision to end it. I granted that application. All firsts are learning experiences. Afterwards, when assigned to hear other such applications, I asked counsel whether they were requesting anonymity both before and after the person’s death.

Presiding on this and other assisted dying cases deepened my knowledge of life, law, and what it means to be a trial judge. Sitting in that chair and managing those competing interests in an emotionally charged courtroom has helped me be a better appellate judge.

5. The Paxton Trial and Decisions

Finally, I return to the Paxton case in an effort to illustrate courtroom management. The trial began in September and concluded in December. I heard 43 witnesses and received extensive medical documentation. There was a great deal of public interest in this trial. The court was often full, the media attended daily, and I permitted real time reporting of what occurred in court. I granted a request from the accredited media to use instant messaging technology within the courtroom, rather than requiring them to leave court to file their stories. It seemed preferable to allow the light tapping associated with typing rather than the disruption of people coming and going. This is one of the first times instant messaging was permitted as many other trial courts across the country were examining the issue.

This case also demonstrates my ability to work hard and do what is necessary to meet the demands of a long, difficult and multi-faceted case. Trials are intense experiences for all concerned, including the judge, who is ultimately responsible for the fairness of the trial, and sits as the custodian of constitutional rights and the gatekeeper of evidence. Issues arose daily that required attentiveness, a thoughtful approach and an even hand. The schedule was demanding and the pace, workload, amount and nature of the evidence took their toll.

At the end of the trial, the defence alleged that the police and Crown lawyers engaged in misconduct sufficiently serious to warrant a stay of proceedings. In a rare turn of events, trial counsel on the substantive charges in the trial proper became witnesses on the stay application. Tensions ran high and it was especially important to create and maintain a professional atmosphere in the courtroom. Further, the defence asked me to step aside or “recuse” myself on the stay application because it would create a reasonable apprehension of bias for a judge to hear argument and evidence from the same people. I rejected this argument and followed the common practice of the trial judge conducting the stay application. In my oral decision, I explained that there is a strong presumption of impartiality and it is assumed that judges will abide by the terms of their oaths. Further, a reasonably informed member of the public can readily appreciate the roles played by lawyers when acting for the client, and when they testify about their own actions and conversations. A reasonable person would also appreciate that a judge could differentiate between the argument of counsel and their evidence on a separate but related matter. Indeed, that occurs frequently when a self-represented litigant first gives evidence and then presents argument on his or her own behalf.

The trial ended on December 23, and I released my judgement on both criminal liability and the stay application on February 10. Providing a final resolution on all issues required me to manage a large workload, stay organized and on schedule and reach a reasoned conclusion within a limited time-frame as is essential to best practice, especially in a criminal case where the stakes are high for the accused person, the victims and the community.


[...]


PART 10 - THE ROLE OF THE JUDICIARY IN CANADA' S LEGAL SYSTEM

The Government of Canada needs 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?

It is difficult to outline “my most significant contribution to the law and the pursuit of justice in Canada”. To the extent that the term contribution suggests a result obtained, such matters are often best assessed by others. I am more comfortable addressing the question in terms of what I have tried to give. While my commitment to fairness and equal justice for all spans and unites my entire career, my most significant contribution has been to education, richly defined. My guiding desire has been to use what I have learned to help others gain a greater understanding of the law: its purpose, role and promise.

I have dedicated much of my life to various forms and types of education: often on equality and diversity, but also spanning many diverse subject areas. Throughout, I sought to create a conversational climate where differences of opinion can be explored fully, openly and with respect. Whatever the topic, and whatever the role I played, clarity, communication and insight have been persistent pre-occupations.

From my study of common law and civil law at McGill, I knew I wanted to teach, to share my joy of learning. At law school, I wrote two books which outlined general principles of Québec law so people would know their legal rights and responsibilities. I remember walking in Montréal one day and being surprised to see it in the storefront window of a popular book shop. For some reason, I had not been told it had even been published. That moment taught me that it was indeed possible to actually think and write something into existence and that by putting ideas out into the universe, one person’s work can make a difference.

As a law professor, I was always excited about taking the journey of discovery with law students: picking a starting point and building knowledge and skills together, over time, and through layers of complexity. In my view, the primary obligation of a good teacher is to discern the gift possessed by each individual and to nurture it to excellence. The University of Calgary Faculty of Law was also concerned with more than the research and analytical abilities of its students. A conscious decision was made to ensure graduates were taught about social responsibilities and critical perspectives, and given the full range of skills needed to serve a diverse public ethically and effectively.

My additions to legal scholarship were typically based on a desire to comprehend the rudiments of any particular area and its intrinsic problems. This invariably included a historical component: a thorough review of the past is a prelude to understanding the present as history teaches many lessons. It is also important to research deeply and widely to gather current information across disciplines and understand various perspectives, to seek out options, consider the relative merits of each alternative, and formulate an informed, thoughtful, balanced and helpful direction. Often I relied extensively on the original thinking and wisdom of others. My academic writing was the product of careful analysis and hard work, motivated by the desire to understand and help others understand. I was fortunate to have been part of important conversations on some of the defining issues of our times and to have addressed, through law, the foundational questions of how we should live together and what we stand for as a country.

I worked with many different legal organizations in pursuit of knowledge, improved skills and increased fairness. I helped structure the curriculum of law schools, the content of courses, and conferences for students and lawyers. I was on the Canada Council of Law Deans; participated in law reform initiatives; assisted with the education, regulation and improvement of the legal profession; and contributed to training better lawyers, with inter-cultural competence and exemplary skills.

Throughout my career, I have also been involved with judicial education, whether directed towards equality issues, substantive law topics or the acquisition and mastery of judicial skills. I helped ground this essential education in sound pedagogical principles for adult learners.

I was also instrumental in developing models for social context education for judges, based on the three pillars of judicial leadership, academic contribution and community participation. As we were creating something anew, we had no ready template and had to construct a new approach. The efforts of many have resulted in an appreciation that the equality lens is a core part of judicial competence in a diverse Canada, and that an appreciation of context improves judicial reasoning. It ties legal principles to their social moorings, looks to consequences, and requires a consideration of the real-life impact of policies and decisions on individuals who are differentially situated. Social context education asks decision makers, including judges, to take human dignity into account and to eradicate any form of stereotyping.

What I have learned about education has informed my actions and attitudes as a judge. Judges have significant responsibilities to the public and I have come to appreciate that my ability to act or speak with any authority came from doing the work: educating myself, time and again, about the dispute I was called upon to resolve. I often read widely to understand a body of law, and not just the cases given to me by counsel or the parties. Integrity is also in the details.

In summary, what I have tried to contribute is enhancement of skills and knowledge, so the many actors in our justice system are best equipped to serve the public with increased awareness and compassion.

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

My understanding of diversity within Canada derives from personal experience and professional exposure while living, working and travelling throughout this vast country and beyond.

I grew up in Montréal, at a time when many schools were separated into an English side and a French side. The principal of the elementary school I was to attend summarily dismissed my parents’ repeated requests that I be educated in French because, “she is English.” Regardless of whether language spoken at age five qualifies as an immutable characteristic, such was my individual introduction to life-limiting labels. Even as a child, I did not understand why I could not simply be given the chance and this narrowness constrains me every time I attempt to conjugate the plus-que-parfait.

I came from a loving family of modest means and saw the daily stress of trying to make ends meet. From an early age, I understood that it was up to me to work hard to achieve my goals. I never really knew my mother’s parents. My maternal grandfather terminated contact with my mother when she married my father because my father practiced a different religion. Again, I was confounded as to how my father’s Catholic religion explained why my parents, sisters and I were not welcome in my grandparent’s home or lives - forcing me to question prejudice based on faith, as well as all forms of exclusion.

In Montréal, I also studied civil law with many francophone students who explained that Québec was not simply two solitudes, but distinct societies in which greater privilege was reserved for the English-speaking minority. At university, I learned that social distinctions are not simply about difference. Difference is a comparative concept and we are all equally different from each other. The key is to remain attuned to the consequences that may attach to the difference and to appreciate that many differences are more constructed than real. I came to understand the need to look for any unstated norm, and how the “other” can be used not only to divide, but to stratify as well.

On the positive side, at the same time in Montréal, I saw the benefits of bilingualism and the beauty of a bi-juridical legal system. When the civil law and common law provide different answers to the same question, it underscores how law reflects choices, history and culture. It also encourages a comparative analysis across legal traditions, with the goal of strong and responsive laws. In this regard, there is also a modern movement to go beyond a binary understanding of our nation’s history and to incorporate Indigenous perspectives, laws, practices and customs into Canadian jurisprudence. A similar change is underway to recognize northern Canada as intrinsic to our identity as we express our nation as extending from “sea to sea to sea”.

Much of my professional life has involved diversity issues and I believe I have gained some insight into existing and emerging grounds of discrimination. I did my best to help develop substantive equality rights law, through academic writing, litigation, and education initiatives on diversity for law students, lawyers, the judiciary and the public. I have been involved in developing programming for the judiciary on social context elements such as gender, age, literacy, disability, language, race, cultural background, socio-economic status, religion, aboriginal or indigenous origin.

I have worked with many different people and groups to understand their lived experience, hopes and issues. The Charter’s protection of a multicultural society, and its guarantees of broad democratic and individual rights, as well as collective rights in respect of language, equality and Indigenous Peoples, suggests that the chosen arc of Canadian history remains toward community and inclusion.

I worked to increase the number of Indigenous People and other historically disadvantaged groups in law schools and the legal profession. I was part of the Canadian Bar Association’s Equality and Diversity Initiatives to create an inclusive and diverse legal profession. We provided model workplace policies and took measures to ensure that the profession was both open for and hospitable to people of every colour, race, ethnic background, religion, perceived physical or mental ability, religion and gender. A morning in family chambers or criminal duty court as a trial judge shows that our generation of equality seekers have had a demonstrable impact on the profile of participants in the justice system.

I sat as a trial judge for twelve years, with a home base in Calgary, which is Canada’s third ranking multi-cultural city. I saw every form of human problem experienced by members of our community from all over the world and from all walks of life. On circuit, I sat in small rural communities and as a judge in the Yukon, I have had first-hand experience of the distinctive challenges of providing justice in northern communities. I have watched the economy in Alberta boom and shrink and do it again, with dramatic consequences for many people.

I also had the great privilege of living and working in many different cities. I have frequently visited my father’s extended family in Newfoundland. I have travelled for pleasure and business across Canada. Being part of national organizations has also deepened my knowledge of and respect for the diversity of this country and the varied perspectives of its peoples.

I believe I have gained an appreciation of diversity, as well as the complexity of identity: not only how prohibited grounds of discrimination may intersect and interact, but the very limits of categories themselves. People do not live their days within the constraints of legal categories. Individuals have complex and multi-layered identities. For example, prohibitions against gender discrimination are intended to respond to the life circumstances of all women, whatever their personal life circumstances. Only in that way can all people be treated with equal dignity, respect, and consideration and thereby participate fully in society.

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

The role of the judiciary in a constitutional democracy is complex and evolving. The starting point is that, in a constitutional democracy, the judiciary has not only an adjudicative role but also a fundamental role as defender of constitutional rights.

In broad terms, the legislative branch of government decides on policy and enacts laws accordingly; the executive branch administers and implements that policy and law; and the judicial branch interprets and applies the law and ensures it complies with constitutional requirements. All three branches of government are united by the desire to serve the public interest.

Canada’s Constitution establishes the checks and balances under which all three branches operate and interact. Certain key provisions speak to the role of the judiciary.

First, since we are a country governed by the rule of law, the law binds all and is supreme. Governments, as well as private actors are accountable under the law, which should be clear, stable and applied evenly. It falls to the judiciary to ensure that no one is above the law. The role of the judiciary includes fostering respect for the rule of law and increasing public confidence in the justice system.

Second, while the independence of the judiciary is a cornerstone of the rule of law and protected in the Constitution, judicial independence exists for the benefit of the public. The three core characteristics of judicial independence, security of tenure, financial security and administrative independence, ensure that the courts have unfettered ability to decide cases according to law and without being pressured by anyone. However, judicial independence is not an excuse for judicial isolation nor a justification for ignoring legitimate public concerns. It is precisely because of the significant role accorded the judiciary in a constitutional democracy that the judiciary must ensure that judges are well educated about the realities of the lives of the people who appear before them.

Third, the role of the judge is to act as a neutral arbiter between the state and its citizens and between private individuals with the responsibility of making impartial decisions. A judicial “opinion” is not the personal preference of the judge. Judges follow process, principles and precedent; are obliged to base their decisions on the evidence before them; and to provide reasons for their decisions.

Fourth, the Charter conferred express authority on the judiciary to review state action for compliance with the supreme law of the land. This authority is balanced by the government’s ability to justify infringements of Charter rights under section 1 if they are demonstrably justifiable in a free and democratic society or to invoke section 33 to enact legislation notwithstanding a violation of certain Charter rights. In many countries, there is a fundamental disagreement about the legitimacy of courts invalidating legislative or executive action. In 1982, Canada’s elected and accountable governments made a deliberate choice to constitutionally entrench rights and freedoms. Parliament and provincial legislatures expressly gave courts the power to review state action for compliance with the Charter, and granted them wide remedial powers, including the power to declare unconstitutional legislation invalid. This express grant of judicial authority came about through a democratic process. The courts have been assigned the additional roles of upholding and interpreting the Charter, such that when the judiciary administers justice according to law, that now includes the Constitution.

Moving from a system of parliamentary supremacy to one of constitutional supremacy strengthened and expanded the judiciary’s traditional role as the custodian of individual rights and freedoms. The inquiries made by judges in relation to Charter rights are more sweeping in content, scope and effect than those made pre-Charter. Courts are also the trustees of the “living tree” doctrine and have the obligation to ensure that rights develop along with changing social realities. Using these principles, courts are routinely called on to resolve disputes over the meaning of rights and if an infringement or intrusion has been shown, whether the government has justified such intrusion according to law. Where the court determines legislation to be unconstitutional, the legislature usually responds with new legislation designed to accomplish similar objectives, but within constitutional bounds. In this way, Charter jurisprudence has resulted in a more dynamic interaction between the branches of government, which also strengthens Canada’s democratic values and institutions.

While the legitimacy of judicial review has an express constitutional basis, there will still be debate concerning the appropriate limits of judicial authority. That is inevitable in a constitutional democracy since courts are constantly called on to balance and weigh rights. That not infrequently includes determining which right or value prevails where rights are in conflict. More fundamentally, it includes weighing the court’s obligation to protect guaranteed rights against government powers to legislate for the greater good. Just as the other branches of government must respect the judicial role, the judiciary must respect that state actors and other branches of governments have important roles to play in promoting and protecting the public interest. Controversy will likely continue, both generally and in individual cases, over when the judiciary should defer to government and the appropriate margin of appreciation for legislative choices. While the courts must do their best to ensure that the appropriate balance is struck, not every issue is justiciable and courts may well, depending on the circumstances, decline to second-guess certain legislative choices.

In Canada, there remains an ongoing dialogue between the public, its government and the courts. This synergy is dynamic, requires a conscious balancing of interests and responds to change. The goal is a good faith and intellectually rigorous engagement of all branches of government that produces laws which best serve the public, and in which they will have faith and confidence.

4. Who is the audience for Supreme Court of Canada decisions?

Many audiences are of critical importance to the Supreme Court: the parties and any intervenors; the public and the press (who I include together because the media is really enforcing the public’s right to know); lawyers and judges; other branches of government; legal academics; and interested observers in other countries. I will speak briefly to each to provide the full picture.

Courts must always speak directly to the parties, who have a personal interest in the outcome of the dispute because their liberty, rights, property, reputation, business and/or family are at stake. Parties merit special attention because they have also shouldered the emotional and financial burdens of moving their cases through the court system. In addition to the parties, provincial Attorneys General may appear on constitutional matters and the Court may allow intervenors to participate if they might contribute a useful perspective not otherwise before the Court. When the parties and intervenors understand the reasoning and result, and see that their arguments have been heard and treated seriously, they have confidence that they received a fair hearing before informed and impartial decision-makers.

Lawyers and judges are not only bound by Supreme Court decisions, they look to them for certainty and guidance. Lawyers require predictable and coherent legal principles so they may provide helpful advice to their clients. Judges seek articulated norms and workable standards to be applied in individual cases.

Even when state action is not directly impugned, the federal, provincial and territorial governments remain keenly interested in how the Supreme Court interprets and applies legislation. This is true generally but has special significance in administrative law, criminal law, environmental law, municipal law, immigration law, taxation law and intellectual property law.

Academics and interested observers, in Canada and other countries, are also key parts of the audience for Supreme Court decisions. There is cross-pollination between academia and the courts; and the Supreme Court, too, relies upon academic writings and commentary. Many other countries look to Canadian jurisprudence on a wide variety of topics. My teaching in the course of international development work has taught me that countries across the world, whether common law jurisdictions or not, are eager to learn from decisions of the Canadian Supreme Court, particularly in matters of human rights and equality.

In Canada, a constitutional democracy built on the rule of law, the members of the public receive the wisdom from the Supreme Court decisions and incorporate it into the national conversation. Through its decisions, the Supreme Court speaks to the people on matters that lie at the heart of what it means to live in a constitutional democracy, at one end of the spectrum, to matters that lie at the heart of their day-to-day lives, at the other end.

Of course, the public is always an important audience for every court. This is because the legitimacy of judicial decision-making rests in large measure on people believing that our legal system delivers justice. Judges seek to encourage public confidence in the legal system and foster respect for the rule of law at all times. Judicial decisions provide a powerful opportunity to build public confidence and respect because they are direct acts of communication. Decisions give courts the opportunity to demonstrate the existence of a fair and reliable process during which the judge has listened to and grappled with the arguments advanced. Reasons for decision are thus more than an important part of the judiciary’s accountability for the authority it exercises. As well, they promote transparency and accountability, and reduce the risk of error. In the age of information and internet research, the public enjoys ready access to judicial decisions. With on-line media reports on a case, there is frequently an express link to the full judgment of the court. This results in both a broader audience and a more informed public.

Public respect for the administration of justice takes on increased significance for Supreme Court decisions given the nature of the cases it hears and the finality of its decisions. Most cases heard by the Court have met the leave standard and raise issues of public and national importance. The public, including any victim and/or interested communities, may also have a pressing interest in criminal matters proceeding as of right. Public interest will be high whenever the federal government poses a reference question directly to the Court because this power is used rarely and is reserved for cases that involve fundamental Canadian rights, values, and institutions.

The Supreme Court thus often hears cases on private and public law which have already generated conflicting views and on which reasonable people may disagree. Leave to appeal is often granted because appellate courts are divided among themselves, or between each other on important issues. The cases before the Supreme Court often call for a choice between conflicting rights, values, principles and directions. When the correct conclusion on a matter of public importance is contested socially and legally, the public has a legitimate interest in knowing why a particular conclusion was reached and why a certain principle or position prevailed. The decisions should be clear and convincing. Experience and research suggests that people are capable of respecting decisions, even ones they disagree with strongly, when the decision-making process is respectable, rational and legitimate.

The audience for any decision of the Supreme Court may vary slightly depending on the issues, area of law, and the parties and intervenors involved. What is constant is that many people are watching with great interest. There is also no competition between the above listed audiences. For example, decisions that provide a full explanation to the parties will also inform the wider public. In the end, the decisions of the Supreme Court must demand public respect. It is the way judges ensure public respect for, belief in and a commitment to the rule of law.

5. To what extent does the role of a Supreme Court of Canada Justice allow for the reconciliation of the need to provide guidance on legal questions of importance to the legal system as a whole with the specific facts of a case which might appear to lead to an unjust result for a party?

This question presents two ideas. First, it recognizes the unquestioned need for the Supreme Court to provide guidance on legal questions of importance to the legal system as a whole. Second, it recognizes that decisions should be seen as just. I accept both these ideas as true, even self-evident. On the latter point, I would suggest that the decisions do not merely need to appear just, they should in fact produce a just result. At its most basic, this question also seems to assume that these two ideas may be in conflict, or at least in tension. While I will address the ways in which the Supreme Court may reconcile these two ideas, I do not accept that guidance and justice are contradictory ideas. There is no dichotomy: no either/or proposition. Both can, and should, co-exist.

Most often, legal issues of public importance come to the Supreme Court because of a concern about governing principles: which ones to apply; which require refinement; and which require fundamental change. The Court is invariably asked to reach a result on the particular case before them. A remedy once requested, is typically granted or withheld. Sometimes the Court’s remedy does not dispose of the case: for example, when a matter is returned for a new trial or a rehearing. The Court may also postpone the remedy. This occurs when the Court suspends a declaration of constitutional invalidity for a time to permit legislatures to respond to its decision. In yet other cases, the Court says its ruling would apply prospectively, giving society notice of changed standards but without applying them in an instant case. In these ways, the Court may reduce any appearance of injustice arising from a determination on the merits of a particular case.

A primary function of the Court is to establish clear legal principles which promote stability and predictability, but which also contain sufficient flexibility to deliver individual justice. Guidance for similar cases across the country comes from the Court’s articulating principles of general application. Such principles are intended to govern a myriad of future factual situations, both foreseen and unpredicted. Hence, the imperative need for care and caution in shaping the principles with a view to the many ways in which they may actually play out in real life. This focus is designed to ensure that the Court crafts rules or approaches which minimize the apparent tension between a new or clearer system rule and applying that rule to resolve the case before it.

When the Court makes a determination on the merits, it should be a just one. If the Court truly believes the law would lead to an unjust result, the principle of law in question may very well need to be re-considered. My days in the academy taught me that if a theory does not work in practice, then it is not a very good theory. Similarly, if a chosen legal principle produces an unjust result, it is not a very good principle. The thought that one is imposing an unjust outcome on a party ought to give a judge at any level of court pause.

There are many ways the Supreme Court may reconcile its need to provide guidance with just results in individual cases. If the immediate testing of the rule in its first application would result in a truly unjust result for a party, it is a sound reason to reconsider whether the chosen principle is correct or defined with sufficient purpose and precision. Probing questions may help get to the root of any problem. For example: is this the right principle? Does the principle need to be restated: is it too wide or too narrow? Has too great an emphasis been placed on the rule itself, without understanding its rationale, history, purpose and effect? Does this case call for the creation of an exception to an established principle, or provide the springboard for a new way of approaching this area of the law?

The Court has already demonstrated that it does not see guidance and justice as incompatible. In some areas, like hearsay evidence, the Court has shifted from categorical rules, with rigid exceptions, to principled and purposive approaches. The underlying rationales behind rules become the framework for decision making, so that a technical application of the rules does not yield unjust outcomes. In other subject areas, it has chosen a list of the factors which should be considered, rather than prescribing an inflexible standard that is more likely to produce an unyielding result. The Court may also provide guidance on how such factors may be weighed in future cases while accepting that in future cases, justice may require that one factor be given ascendancy over another.

Two final observations about this question. First, cases that come before the Supreme Court are among the most complex our legal system faces and resolving them means reconciling competing values. There will be cases where difficult choices must be made. Often, there will be more than one right answer. A party’s disappointment at a loss in a close, difficult case does not mean the result is unjust. Any “appearance” of injustice can be mitigated or reduced by clear, cogent and convincing reasons. Second, in the final analysis, the law and justice are not disconnected. It is sometimes said that the law is not about justice. But if the courts do not strive to ensure that the application of the law produces just results, we risk a loss of public confidence in the justice system and ultimately the rule of law. That public confidence is key to the preservation of all our democratic institutions including the courts.

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