By Neil Armstrong
That is the feeling of many African Canadians — who were following the Ontario Judicial Council hearing into four allegations of misconduct, against Justice Donald McLeod — when they heard that the complaint against him was dismissed.
McLeod, a judge in Brampton, Ontario was facing allegations of perjury and judicial misconduct, which, if there were a finding, could have resulted with him losing his job with the Ontario Court of Justice.
On June 2, the Ontario Judicial Council released the 242-page decision of the hearing panel, which examined a complaint about the conduct of Justice McLeod, the only Black judge at the Ontario Court of Justice in Peel. As a result of the allegations, Justice McLeod has been off the bench for over two years.
The complaint alleged that, on December 20, 2018, a hearing panel of the council dismissed a complaint against the judge, regarding “his involvement in, and leadership of, an 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”.
It alleged that at the previous hearing, McLeod “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”.
According to the allegation, following the decision of the hearing panel, Justice McLeod resumed a leadership role in the FBC and attended political events on its behalf.
“He engaged in behaviour that was, or could be perceived to be, impermissible advocacy and lobbying by a sitting judge,” the allegation continued.
The complaint also alleged that he engaged in behaviour “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”.
In its dismissal of the complaint, the four-member hearing panel, led by Justice Janet Simmons of the Court of Appeal for Ontario, found that the first and second allegations were not made out.
“Further, although we find that aspects of Justice McLeod’s conduct, involved in the Third and Fourth Allegations, were incompatible with judicial office, we conclude that such conduct did not rise 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. Accordingly, such conduct does not amount to judicial misconduct,” concluded the hearing panel.
Given that the complaint has been dismissed, a recommendation that Justice McLeod be compensated for his costs for legal services is mandatory.
“The First Panel noted that this question has been considered by way of written submissions in the past. We therefore ask that Justice McLeod’s counsel provide submissions on compensation and a costs outline, 14 days following the release of these reasons. Presenting Counsel may file any response within 14 days thereafter.”
The panel noted that the OJC Registrar is directed to update the Council’s website to reflect the amount of compensation requested, and the amount ultimately recommended.
“The submissions, costs outline and our written recommendation to the Attorney General shall be part of the publicly accessible file,” it added.
African Canadians, who know McLeod and his work in the Black community mentoring youth and lawyers, are glad that the outcome of the hearing vindicates him.
“This is GREAT news indeed, especially during a COVID-19 year, when many have been faced with various challenging and tragic circumstances. Justice Donald McLeod is beloved and well-respected in the community and across the GTA/Diaspora,” said Marjorie Taylor, the 2015 Brampton Citizen of the Year.
She noted that he is considered a role model in the Black community and was honoured with a Black History Month Community Leadership Award in 2019, by Peel United Cultural Partners — a partnership of the United Achievers’ Club of Brampton and Congress of Black Women of Canada-Brampton Chapter — in 2019.
“His character has always shone through, and his dedicated service to his community and to enhancing the lives of all, but, particularly those of Black/African/Caribbean heritage, have not gone unnoticed. This is a great vindication and endorsement of the high esteem, in which Justice McLeod is held. It would have been a great loss to the judicial system had the result been otherwise.”
Adaoma Patterson, President of the Jamaican Canadian Association (JCA), related that the venerable organisation is pleased, and relieved, to hear that the complaint against Justice McLeod has been dismissed.
“We are of the opinion that it is the right decision, and serves to remind us that the legal system must account for, and consider, the social conditions that exist in the world. Diversity in all its forms is essential to a more just legal system. The JCA looks forward to seeing Justice McLeod back in the courtroom, where he belongs.”
Meanwhile, Ainsworth Morgan, a friend of the judge for about 20 years, says he is happy for him on many levels.
“I’m happy for Donald and his family, to sort of be able to resume their lives. He has been on hold, for over two years, of not being able to be on the bench, and so I’m really happy for him on that level. I know it’s not been easy for him or his family, so (I’m) just glad that that chapter is over with.”
Morgan said he is hoping that what comes out of this are reflection and healing, because it is unfortunate that it had to reach this situation.
“I am beyond elated. I think the only way to describe the filing of the complaint against Justice McLeod is as a failed witch-hunt that got started simply because some people hate the skin they are in,” says Kathy McDonald, a trustee of the Peel District School Board (PDSB) and an active community member of Peel.
“Our community will never make inroads unless we stop this crabs-in-a-barrel mentality. There is room for all kinds of advocacy. We need people in the streets in jeans shouting and rattling cages, but we also need people in $1000 suits (or bargain basement outfits) in courtrooms and boardrooms. Our community needs to address the elephant in the room and learn from this horrible experience. In the end, the only people that were hurt by this failed vendetta, were the Black children and residents of Peel that were denied the dignity of having an excellent judge in Donald McLeod, to preside over their trial.”
The hearing panel consisted of Justice Janet Simmons of the Court of Appeal for Ontario, as Chair; Justice Michael J. Epstein of the Ontario Court of Justice; lawyer member, Malcolm M. Mercer; and community member, Victor Royce.
The presenting counsel was Borden Ladner Gervais LLP: Guy J. Pratte, Nadia Effendi, Christine Muir, Veronica Sjolin and Mannu Chowdhury.
The counsel for Justice McLeod was Torys LLP: Sheila R. Block, Irfan Kara, R. Craig Gilchrist; Addario Law Group LLP: Frank Addario, Wes Dutcher-Walls; Mirza Kwok|Criminal Defence Lawyers: Faisal Mirza; Gates Criminal Law: Kelly Gates
The hearing panel noted that the “current complaint was premised on a blog, published by Desmond Cole, in late February 2019. Among other things, the blog referred to Justice McLeod resuming his involvement with the FBC; the FBC’s continuing involvement in coordinating meetings with, and presenting, ‘asks’ to the government; Justice McLeod’s attendance at a meeting on January 13, 2018 with Ahmed Hussen, then-Minister of Citizenship, Immigration and Refugees (“Minister Hussen”), allegedly, to discuss the Abdi case; and Justice McLeod counselling youth delegates about whether to speak about a racial profiling incident that occurred at the 2019 Summit”. Abdoulkader Abdi, a Somalian refugee, was the subject of pending deportation proceedings.
The evidence in the matter consisted of the oral testimony of 13 witnesses and 22 numbered exhibits. Overall, the panel heard 15 days of evidence in December 2020 and February 2021. Following the evidence, the panel heard two days of oral submissions in March 2021. The review panel subsequently received written submissions, totalling over 400 pages, in April 2021.
“We have 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. We therefore dismiss the Current Complaint,” said the members of the hearing panel.
The review panel noted that the, “2020 Notice of Hearing was filed, not long before the onslaught of the pandemic. No doubt this created extraordinary challenges for all counsel in preparing and presenting this case. We were impressed by the roles played by “less senior” counsel in not only preparing, but also presenting, it. We are grateful to all counsel for their diligence and professionalism in assisting us.”
On December 29, 2020, community members held a virtual Black Community Healing Circle, noting that, “recognizing the pain and hurt of the Donald McLeod hearing on the community, this space is being created for us to share how we are being affected, support each other and begin the healing process”.
Justice for Justice McLeod, made up of “members of the Black community, who believe in the notion of love in the face of hardship and adversity,” affirmed that the judge has been vindicated.
“We believe in the strength of our power and we believe that an attack on one of us is an attack on all of us,” noted the group’s Facebook page.
On its Twitter page, it declared, “Justice has prevailed. The voices of our communities have prevailed. Anti-Blackness will not silence a Black Judge nor make him lose his job. Justice McLeod has been vindicated!”
Justice McLeod was appointed as an Ontario Court of Justice (OJC) judge on September 18, 2013. Since his appointment, he has presided in Brampton in the Central West region. Currently, he is the only Black OCJ judge in Brampton, which has long been known for the diversity of its population.
“Before being appointed to the bench, Justice McLeod had a successful career, practising criminal and administrative law. He was also active in the community, focusing in large measure on organizations that mentor Black youth. Having overcome the barriers, created by poverty and racism, Justice McLeod feels a strong obligation to ‘pay it forward’,” the hearing panel noted.