‘Catching heat’ for social justice work
IComment n a jam-packed hearing room that sometimes sounded like a church, with the audience murmuring “Uh huh” or “That’s right” in response and once bursting into applause, a panel of the Ontario Judicial Council Friday began struggling with the question of what judges can and can’t do in the modern world.
It is akin to wrestling with Jell-O, because, as a former colleague, Ontario Superior Court Judge Jill Copeland, wrote in a letter of support for Donald McLeod, “… often there is not a bright line that demarcates what is appropriate judicial activity outside the courtroom, and what is not.” That may hold particularly true for judges from minority communities — McLeod, born to a single mother in subsidized housing in downtown Toronto and Scarborough, is one of a few black faces on the bench — and who may feel acute responsibilities to them.
As an expert witness, Dr. Wendell Adjetey later testified that for a man like McLeod to have risen so high, the obligation to “pay it back” with community involvement is not a choice. “This is the burden and gift of blackness,” Adjetey said. “If you benefitted ... you must pay it forward” with grace.
For other young black children, especially boys who are disproportionately involved as victims and accused people in the justice system, Adjetey said McLeod is evidence that “they should seize their Canadian citizenship” and strive.
And for accomplished young black men like him (Adjetey is a visiting scholar at Harvard University and next year will become an assistant professor of history at Providence College), Adjetey said to continue “to preach the gospel of the right path, of resilience” to black youth, who “look at that man (McLeod) and yet he’s catching heat? ... That decent, honourable man, a father, a husband, who has committed his life to Crown and country — they see he’s catching flak? There’s no hope for me (they say).”
McLeod is alleged to have committed judicial misconduct for his voluntary unpaid work, three years after he was appointed as a judge, with the Federation of Black Canadians (FBC), a national non-profit organization he founded after the May 2016 shooting of Candice Rochelle Bobb.
Just 35 and pregnant, Bobb was returning from a basketball game when gunmen shot up the car she was in. She was mortally wounded, and her baby, delivered by emergency C-section, later also succumbed.
McLeod told the panel, headed by Ontario Court of Appeal Judge Robert Sharpe, that the Bobb shooting “hit a little closer to home than some of the other shootings that year …” He’d gone to school with Bobb’s aunt, he said.
In the aftermath of that shooting, as community members rallied around various causes, McLeod began making calls, asking “What can we do to stem this tide?”
As he wrote in response to the complaint about him, made by his Associate Chief Justice Faith Finnestad, he had long been involved in what is now usually described as social justice — founding 100 Strong, a nonprofit which mentors young black boys, was an activist defence lawyer and a frequent public speaker — before his appointment.
And as FBC began to take shape, McLeod reviewed the judges’ Code of Conduct, spoke with other judges and “took steps to ensure that anything done by or on behalf of the organization was done through a non-partisan lens.”
He also sought advice from the judges’ “ethics committee,” which through its chair, Judge Peter Tetley, originally replied that provided “you distance yourself from any related fundraising initiatives, ... no ethical considerations” arose. McLeod wrote Tetley again, the same day, with more specific questions, telling him the FBC “will/may at times interface with the government” and acknowledged “this can be seen as lobbying ...”
Again, Tetley assured him his FBC work didn’t raise ethical concerns, but noted the questions “do not easily lend themselves to a definitive or unqualified” answers and warned “your continuing participation” had “the potential for compromise of your judicial independence” and that McLeod should continuously assess it.
The discussion of FBC, and McLeod’s role in it, became a heated topic when some in the black community criticized the organization and the judge for their silence on some controversial issues and McLeod for meeting with prominent Liberals, among them Prime Minister Justin Trudeau and former Ontario premier Kathleen Wynne.
In the result, FBC changed some of the information on its website, and, McLeod testified, he also met with unnamed Conservative, New Democrat and Green Party members.
He wanted to “phase out” his exit from FBC because it was still a fledgling organization, but resigned in June this year after receiving a letter from the council suggesting it might recommend he be suspended with pay.
The panel can dismiss the complaint, but if upheld, it can sanction McLeod with penalties ranging from a reprimand to recommending he be removed from office.
The hearing will continue Tuesday, when lawyers will make their submissions. The panel members left the room at the conclusion of proceedings, and thus didn’t see the rather remarkable scene that followed, an Ontario Court judge from Regent Park being swarmed by friends, colleagues and admirers who hugged him and demanded selfies.