On June 2, 2021, the Hearing Panel released its reasons In the Matter of a Hearing Concerning a Complaint about the Conduct of the Honourable Justice Donald McLeod. The Hearing Panel concluded that two aspects of Justice McLeod’s conduct were incompatible with judicial office but not so seriously contrary to the impartiality, integrity and independence of the judiciary that, whether considered individually or cumulatively, they rose to the level of undermining the public’s confidence in his ability to perform the duties of his office or the administration of justice generally. The Hearing Panel therefore dismissed the complaint. The reasons of the Hearing Panel may be found here: https://www.ontariocourts.ca/ocj/files/ojc/decisions/2021-mcleod-decision.docx. (For full content, please download the decision to Word or Pages.)
Given that the complaint was dismissed, a recommendation that Justice McLeod be compensated for his costs for legal services is mandatory in accordance with s. 51.7(5) of the Courts of Justice Act. The Hearing Panel requested that Justice McLeod’s counsel provide submissions on compensation and a costs outline 14 days following the release of the reasons. Presenting Counsel is permitted to file any response within 14 days thereafter.
Consistent with the direction of the Hearing Panel, this website will be updated to reflect the amount of compensation requested and the amount ultimately recommended. The submissions, costs outline and the Hearing Panel’s written recommendation to the Attorney General will be part of the publicly accessible file via the Council’s website.
The Hearing Panel considered whether the alleged conduct, as summarized below and set out more fully in the Notice of Hearing, occurred and, if it did, whether it constituted judicial misconduct:
On December 20, 2018, a Hearing Panel of the Council dismissed a complaint against His Honour regarding his involvement in, and leadership of, an organization called the 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. At the hearing, His Honour committed perjury and/or mislead the Hearing Panel regarding his involvement in FBC’s advocacy efforts in a deportation matter. He also misled the Hearing Panel about his disengagement from FBC after concerns were raised about his involvement.
Following the decision of the Hearing Panel, His Honour resumed a leadership role in the FBC and attended political events on its behalf. He engaged in behavior that was or could be perceived to be impermissible advocacy and lobbying by a sitting judge.
His Honour engaged in behavior that was or could be perceived as providing legal advice and/or furthering the advocacy of the FBC by counselling two individuals not to speak publicly about an alleged racist incident that occurred at the National Black Canadians Summit in February 2019.
The complaint was investigated by a two-person Complaint Subcommittee of the Council, consisting of a judge and a community member. Pursuant to section 51.4 of the Courts of Justice Act, the Subcommittee made an interim recommendation to the Regional Senior Justice that His Honour be suspended with pay pending the final disposition of the complaint. The interim recommendation was accepted, and His Honour was suspended with pay pending the final disposition of the complaint.
The complaint was ordered to a hearing by a Review Panel of the Council, consisting of two judges, a lawyer member and a community member.
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.
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.
Presenting Counsel are Mr. Guy J. Pratte, Ms. Nadia Effendi and Ms. Christine Muir, of Borden Ladner Gervais LLP. Presenting Counsel are independent. Their duty is not to seek a particular disposition but is rather to ensure that the complaint against the judge is evaluated fairly and dispassionately so as to achieve a just result and preserve or restore confidence in the judiciary.
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. Counsel for Justice McLeod are Mr. Frank Addario of Addario Law Group LLP, Mr. Anthony Morgan, Ms. Sheila Block of Torys LLP and Mr. Faisal Mirza of Mirza Kwok.
After concluding its hearing of the matter, pursuant to section 51.6(11) of the Courts of Justice Act, the 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.
History of the Proceedings
A teleconference took place on April 21, 2020 to confirm the number of hearing days required. However, due to the circumstances arising from COVID-19, the lawyers were not able to confirm the number of days needed.
The Hearing Panel noted the restrictions in place due to COVID-19. Governments had not yet confirmed when or how restrictions will be lifted to permit meetings involving groups of people. The Panel adjourned the matter for a teleconference on May 27, 2020 to determine whether the hearing could proceed on the planned dates, to confirm the number of hearing days needed and, if necessary, to discuss whether an electronic hearing might be possible.
The hearing was scheduled to occur on July 27-31, 2020 and August 6 and 7, 2020.
On May 27, 2020 the Hearing Panel made an order for disclosure and ordered that a proceeding be held on June 12, 2020 by teleconference, for the sole purpose of delivery of summonsed documents. On June 12, 2020, the Panel heard further submissions on when and how the hearing should proceed in light of the Covid-19 pandemic. Mr. Addario informed the Panel that he would work with Presenting Counsel to identify possible venues where an in-person hearing could proceed. Counsel were asked to provide alternate dates in the Fall of 2020 when all counsel would be available, should such dates be required.
On June 30, 2020, counsel confirmed with the Hearing Panel that the previously scheduled July hearings dates should be cancelled. Subject to further direction from the Hearing Panel, the Hearing Panel directed that the hearing be adjourned to August 6, 7, 10, 11, 18-21, 2020, to proceed electronically, hosted by Arbitration Place. The matter was adjourned to July 15, 2020 for counsel to make further submissions concerning the format of the hearing and other matters as may be required.
The Panel directed that any submissions by counsel regarding the possibility of venues proposed for in-person attendance at the hearing should include:
- Public health recommendations about risk assessment and necessary safety measures and protocols to ensure the safety of attendees at any proposed hearing venue; and
- Information on whether such venues would accommodate virtual attendance by anyone desiring not to attend in person.
The Orders made by the Hearing Panel are posted on the Public Hearings Decisions webpage.
On July 15, 2020, at the request of Presenting Counsel and Justice McLeod, the Hearing Panel adjourned the hearing to December 7 -11, 14-18, and 22-23, 2020 with the format and venue of the hearing to be determined by the Hearing Panel no later than October 30, 2020.
The matter was spoken to by teleconference on September 14, 2020. At the request of Presenting Counsel, the Hearing Panel made an Order with respect to the withdrawal of certain summonses and further appearance dates.
The matter was spoken to by teleconference on October 19 and October 26, 2020 to address outstanding issues including: the venue and format of the hearing, the number of witnesses being called and the locations of the witnesses, and how many days of evidence will be required.
On October 27, 2020, the Hearing Panel ordered that, subject to further order of the Panel, the hearing shall be hosted by Arbitration Place and shall proceed virtually for members of the public and virtually or in-person for hearing participants, at their discretion and as circumstances surrounding the Covid-19 pandemic allow. The Order of the Hearing Panel is posted on the Public Hearings Decisions webpage. Counsel indicated that they anticipated filing an Agreed Statement of Facts. The Hearing Panel asked that the Agreed Statement of Facts be filed by November 27th.
On November 27, 2020, after hearing submissions from counsel, the Hearing Panel confirmed that, in view of the public health situation, including the current ‘lockdown’ in effect in Toronto, the hearing should proceed entirely virtually by Zoom. Counsel informed the Panel that they had not reached agreement on an Agreed Statement of Facts. The Panel indicated that counsel should inform them by Monday, December 30th if they planned on delivering an Agreed Statement of Facts.
On December 1, 2020, counsel for His Honour and Presenting Counsel filed an Agreed Statement of Facts.
On December 2, 2020, the Hearing Panel issued a Procedural Order setting out how the virtually hearing will proceed, including technical requirements and document management protocols. A copy of the Procedural Order is posted on the Public Hearings Decisions webpage.
On December 4, 2020, the Hearing Panel and the parties convened by teleconference to discuss any outstanding procedural issues. Counsel for His Honour and Presenting Counsel advised the Panel that they would be providing a proposed witness schedule in advance of the hearing, and would be filing a Joint Book of Documents by December 7, 2020.
Due to the COVID-19 pandemic, the hearing proceeded virtually by Zoom and was open to the public through a live-stream on YouTube.
The hearing commenced on December 8, 2020. Presenting Counsel concluded calling evidence on December 21, 2020. The December 22 & 23, 2020 hearing dates were vacated by the Hearing Panel, and counsel for Justice McLeod called evidence over the week of February 22-26, 2020.
On March 11, 2021, the Hearing Panel released a “Direction Concerning Access to Exhibits” filed in the hearing. The Direction can be found on the Public Hearing Decisions webpage. Pursuant to the Direction, a copy of the Exhibit List as updated from time to time and copies of the index to the Agreed Statement of Facts (Exhibit 3) and the indexes to Exhibit 4 (the Joint Document Brief, the Further Joint Document Brief
and the Second Further Joint Document Brief) are available.
Counsel made oral submissions on the evidence on March 17 and 18, 2021. Presenting Counsel were requested to provide written submissions by April 2, and counsel for Justice McLeod were requested to provide written submissions by April 16, 2021.
For general information, contact: Council_information@ontario.ca