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Notice of Hearing into a Complaint about the Conduct of the Honourable Justice Donald McLeod

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Pursuant to sections 51.4(18) and 51.6 if the Courts of Justice Act, R.S.O. 1990, c.43, as amended, the Ontario Judicial Council (the “Council”) conducted a hearing into a complaint about the conduct of the Honourable Justice Donald McLeod.

The Hearing Panel is composed of a judge of the Court of Appeal for Ontario, who is the Chair of the Panel, a judge of the Ontario Court of Justice, a lawyer member and a community member.

The Hearing Panel considered whether the alleged conduct, as summarized below and set out more fully in the Notice of Hearing, occurred and constituted judicial misconduct:

While presiding full-time as a judge of the Ontario Court of Justice, His Honour founded, led and served as Chair of the Steering Committee for the organization called the Federation of Black Canadians (“FBC”), a national, non-profit organization that meets with government representatives to advocate for legal and social reform on behalf of Black Canadians. His Honour failed to uphold the integrity, impartiality and independence of the judiciary when he communicated with and met with politicians on behalf of FBC, inappropriately used the power and prestige of his judicial office to advance the interests of the FBC and lent the prestige of the judicial office to FBC fundraising.

The Panel concluded that Justice McLeod’s conduct was incompatible with judicial office, but that it was not so seriously contrary to the impartiality, integrity and independence of the judiciary that it rose to the level of undermining the public’s confidence in his ability to perform the duties of office or the public’s confidence in the judiciary generally. Accordingly, the Panel dismissed the complaint. The Panel’s Reasons for Decision and Summary are posted on the website under Public Hearings Decisions 2018.

As the complaint has been dismissed, a recommendation of compensation for legal costs is mandatory under the Courts of Justice Act. The Panel noted that the question of compensation under s. 51.7(5) of the Act has been considered by way of written submissions in the past.

In its Reasons for Decision, the Hearing Panel ordered that submissions on compensation would proceed in writing. The Panel requested that Mr. Sandler submit his submissions on compensation and a costs outline by January 15, 2019. Presenting Counsel were to file their response, if any, no later than January 22, 2019.

Mr. Sandler filed submissions and the cost outline on January 4, 2019 requesting that Justice McLeod be compensated in the amount of $81,265.96, including $70,845.00 for legal fees, $1,130.62 for disbursements and HST. The submissions and costs outline are part of the publicly accessible file.

In a letter filed on January 10, 2019, Presenting Counsel submits that the hours and rates claimed by Justice McLeod are reasonable and appropriate. Presenting Counsel indicated that they have no objection to the items or amounts claimed in respect of disbursements.

The Panel noted that where a complaint is dismissed, the Courts of Justice Act requires the Panel to recommend to the Attorney General that the judge be compensated for costs of his legal representation. The Panel has discretion to recommend all or part of the judge’s costs for legal services. The Panel reviewed the outline of costs provided by Mr. Sandler and agreed with Presenting Counsel that the request was reasonable. The Panel recommended to the Attorney General that Justice McLeod be compensated in the amount of $81,265.96 inclusive of HST and disbursements for the legal costs he incurred in this matter.  The decision of the Panel is posted on the Public Hearings Decisions 2019 webpage.

Background:

On December 1, 2018, evidence was presented. Presenting Counsel, Ms. Rothstein, filed an Agreed Statement of Facts that included 33 enclosures. Mr. Sandler, counsel for His Honour filed 17 letters in support of the judge, including letters from lawyers, Crown Attorneys, judges and legal organizations. Mr. Sandler also filed a petition containing over 5,000 names, indicating that the petition was filed to show support for the judge. Mr. Sandler called Justice McLeod to give evidence and one additional witness, Mr. Wendell Nii Laryea Adjetey, a historian of the twentieth-century United States who studies the historical intersections of the United States, Canada, and the African Diaspora.

On December 4, 2018, counsel made submissions on the evidence. The Panel reserved its decision. Updates will be provided on this webpage when the decision has been issued.

The complaint was investigated by a two-person Complaint Subcommittee, consisting of a judge and a community member. The hearing was ordered by a Review Panel that included two judges, a lawyer member and a community member.

Hearings of the Judicial Council are normally held in public and the dates and times of the hearings are posted on the Council’s website. Decisions are posted under the link Public Hearings Decisions.

After concluding its hearing of the matter, pursuant to section 51.6(11) of the Courts of Justice Act, a Hearing Panel may dismiss the complaint, with or without a finding that it is unfounded, or, if it upholds the complaint, it may decide upon any one of the following sanctions singly or in combination:

  • warn the judge; reprimand the judge;
  • order the judge to apologize to the complainant or to any other person;
  • order the judge to take specified measures such as receiving education or treatment, as a condition of continuing to sit as a judge;
  • suspend the judge with pay, for any period; or,
  • suspend the judge without pay, but with benefits, for a period up to thirty days.

The Hearing Panel may also make a recommendation to the Attorney General that the judge be removed from office. This sanction stands alone and cannot be combined with any other sanction. Under section 51.8 of the Courts of Justice Act, a judge may be removed from office only by order of the Lieutenant Governor in Council.

A judge whose conduct is being investigated in proceedings before the Council may be represented by counsel and is given the opportunity to be heard and to produce evidence.

Please note that photographic and audio-visual or recording devices are not permitted in the hearing room.  For information on the use of electronic devices in the hearing room, please review the Council’s Protocol Regarding the Use of Electronic Communication Devices in the OJC Hearing Proceedings.

Presenting Counsel are Ms. Linda Rothstein and Mr. Paul Davis of Paliare Roland Rosenberg Rothstein LLP; telephone 416- 646-4300.

Counsel for Justice McLeod are Mr. Mark Sandler and Ms. Amanda Ross of Cooper, Sandler, Shime & Bergman LLP; telephone 416-585-9191.

For general information, contact: Ms. Marilyn E. King, Registrar; telephone 416-327-5672.