The Honourable Warren B. Milman’s Questionnaire

Under the new judicial appointment process introduced by the Minister of Justice on October 20, 2016, any interested and qualified Canadian lawyer or judge may apply for such appointment by completing a questionnaire. The questionnaires are then used by the Judicial Advisory Committees across Canada to review candidates and submit a list of “highly recommended” and “recommended” candidates for consideration by the Minister of Justice. Candidates are advised that parts of their questionnaire could be made available to the public, with their consent, should they be appointed to the bench.

Below are Parts 5, 6, 7, and 11 of the questionnaire completed by the Honourable Warren B. Milman.

Questionnaire for Judicial Appointment

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PART 5 – LANGUAGE

Please note that in addition to the answers to the questions set out below you may be assessed as to your level of language proficiency.

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: No

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

• English: Yes
• French: No

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

• English: Yes
• French: Yes

PART 6 – EDUCATION

Name of Institutions, Years Attended, Degree/Diploma and Year Obtained:

• McGill University, 1988 to 1992 – LL.B.
• Hebrew University of Jerusalem, 1985 to 1988
• McGill University, 1982 to 1985 – B.A.

Honours and Awards:

• Tory Legal Writing Award, 1992

PART 7 – 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:

• McCarthy Tetrault LLP, 1992-2017
  • articled student, 1992-1993
  • associate, 1993-1999
  • first two years as real property solicitor
  • thereafter practicing in litigation, as a partner of the firm since 1999
• Campney & Murphy LLP,  summer student (maritime law group), 1991

Non-Legal Work Experience:

• Archaeologist, Hebrew University of Jerusalem, Israel, 1987-1988 (area supervisor at archaeological excavations at Tel Beth Shean)

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.

• Law Foundation of British Columbia, Governor (2010-2016)
  • Chair of Board of Governors (2014-2016)
• Access Pro Bono
  • Director and Vice Chair (2010)
• Pro Bono Law of BC, Director (2004-2010)
  • Chair of the Board of Directors (2007-2010)
• CBA British Columbia – Secretary, Class Actions section (2006-2008)

Pro Bono Activities:

• Regular volunteer at Access Pro Bono Clinic and Roster Programme
• Founded and have managed McCarthy Tetrault Pro Bono Programme in Vancouver
• Acted pro bono for BC Civil Liberties Association in appeal to Supreme Court of Canada in leading case involving right to counsel (R. v. Sinclair)
• Acted for BC Public Interest Advocacy Centre in litigation involving utility rates for low-income rate payers

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, bar association, National Judicial Institute, or the Canadian Institute for the Administration of Justice).

• Teach a course, twice a year, on duties of board members for the Directors’ College (Conference Board of Canada)
• Have spoken at conferences for the Canadian Institute, Continuing Legal Education Society of BC, Canadian Association of Corporate Counsel

Community and Civic Activities:

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

• Canadian Bar Association
• Har El Congregation, West Vancouver, Board of Directors and Chair (1995-2000)
• King David High School, Vancouver, Board of Directors and Chair of the Board (2005-2010)

PART 11 – THE ROLE OF THE JUDICIARY IN CANADA’S LEGAL SYSTEM

The Government of Canada seeks 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?

• ·As long as I have been called to the bar, I have been mindful of the fact that we as lawyers occupy a privileged position in society. With that privilege comes a responsibility to give something back. My main contribution has been in my work as a pro bono volunteer and more recently through my leadership roles in organisations dedicated to promoting access to justice for those who have been under-served by the justice system.
• My first superior court trial was a pro bono case for an indigent woman with a brain injury. I helped develop and initiate a formal pro bono programme at my law firm fifteen years ago and have managed and led the programme in Vancouver ever since. The cases I am most proud of in my career have involved pro bono mandates through which I was able to make a real difference in the lives of people.
• For example, I was able to help an elderly widow who had been driven into bankruptcy after investing her life savings into a Ponzi scheme. When the perpetrator was sentenced and significant funds were made available to the victims by way of restitution, I obtained an order in the BC Supreme Court directing my client’s share of those funds to be paid to her directly rather than to her trustee in bankruptcy for distribution to her creditors. I have successfully sought judicial review in the BC Supreme Court for indigent tenants whose evictions were upheld by the Province’s Residential Tenancy Board on grounds that proved to be invalid. I acted as lead counsel in a lawsuit brought by the tenants of a residential hotel in downtown Vancouver who sought damages when the police forcibly removed them from the building and detained them for many hours while searching in vain for hazardous materials on the site. I have acted for the BC Civil Liberties Association in the Supreme Court of Canada in a case involving the right of suspects detained by the police to get access to legal advice (R. v. Sinclair). The case ultimately divided the Court on the issue of whether the detainee was entitled, upon request, to make a second call to his lawyer after having already obtained cursory advice on an initial consultation.
• That same inclination led me to volunteer in 2004 for the board of a newly-formed organisation then known as Pro Bono Law of BC, which was dedicated to promoting pro bono work among British Columbia’s legal community and brokering relationships between law firms and community organizations whose clientele needed pro bono assistance. After three years on the board of directors, I was elected Chair and served in that capacity for another three years. In that time, the organisation developed a formal, province-wide roster programme in the Supreme Court and Court of Appeal to encourage and facilitate pro bono legal work by the bar. In 2010, PBLBC merged with another like-minded organisation, Access Justice Society of BC, which ran a network of summary legal advice clinics. After the merger, I served on the board and as Vice Chair of the merged entity, which came to be now known as Access ProBono. I have been a regular volunteer at its clinics ever since.
• My formal association with the Access Pro Bono board ended when I became the nominee of the Canadian Bar Association to the Board of Governors of the Law Foundation of BC, its main funder. Between 2010 and 2016, I served as governor for two consecutive three-year terms, the last two as the elected Chair of that organization. In that time, the Law Foundation was engaged under my leadership in various important initiatives. Most notably, it funded a network of poverty law advocates throughout the province. Its other mandate areas include public legal education, law libraries, law reform and public interest advocacy. Its more recent innovations under my leadership include the creation of a children’s lawyer office, the initiation of a family law advocacy pilot project and an expanded First Nations Court programme. An expansion is planned to both the geographical scope of the programme and its subject matter; it currently offers an alternative sentencing court in criminal cases and the Foundation plans to expand the programme to cover child protection disputes in Indigenous settings.
• The children’s lawyer initiative was funded in part by a “cy-près” award that was approved by the BC Supreme Court in a class action that had recently settled. I was able to attract that funding to the Foundation by drawing on connections with the local class actions bar that I had cultivated through my legal work as a class action defence lawyer.
• In summary, a substantial portion of my working life has been given over to volunteer work in the law – both providing pro bono services directly to the public and as a leader of pro bono organisations dedicated to promoting access to justice. This work has been my biggest contribution to the pursuit of justice and the most fulfilling aspect of my career.

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

• Canada is a large and diverse country with regions having unique perspectives. I have lived in three Canadian cities: Toronto (where I was born and raised), Montreal (where I went to university, including law school) and Vancouver (where I have had my career and raised my family). I have practiced law at a national law firm with offices across the country and have worked closely with colleagues in each of those places throughout my career. I have attended and spoken at many national conferences in the not for profit sector in my capacity as Chair of the Law Foundation of BC and at many law-related conferences as part of my law practice.
• Canada is traditionally described as the product of two founding peoples and legal traditions. I completed the National Programme at McGill Law School (then a four-year commitment) and graduated with an LL.B. and a B.C.L. and a level of familiarity with both the English common law and the French civil law traditions. One of the most significant cases in my career, fundamental to this aspect of the Canadian identity, involved minority language education claims under section 23 of the Charter, which has given me deeper insight into the dynamics and challenges of Canadian bilingualism.
• Canada is also a pluralistic nation populated in large part by immigrants. As the grandchild of immigrants who came to Canada from Eastern Europe and lost their families in the Holocaust, I have inherited a sense of what it feels like to be a member of a vulnerable minority community. After moving to Vancouver to begin my articles, I volunteered on a pro bono basis to support a human rights complaint advanced by the Canadian Jewish Congress against a local community newspaper that had published anti-Semitic and other racist, misogynist and xenophobic editorials, and in doing so came to appreciate the perspective of vulnerable minorities in the free-speech debate. I also have direct personal experience underscoring the role of minority language education as a bulwark against assimilation: I served on the board of directors and as Chair of the local synagogue in West Vancouver and of King David High School in Vancouver.
• Although primarily a nation of immigrants, Canada’s identity has also been formed by the experience of European colonisation and its impact on the country’s Indigenous peoples. My first exposure to this aspect of the national identity came from my legal practice. My background in archaeology gave me the opportunity to act in a series of cases involving challenges by various Aboriginal groups to the process by which permits were issued to excavate archaeological sites under the provincial Heritage Conservation Act. I have also acted for project proponents in proceedings before the National Energy Board and the British Columbia Utilities Commission addressing, among other things, claims of Aboriginal title.
• I later gained a wider perspective on this aspect of the national identity through my volunteer work, particularly with Pro Bono Law of BC, Access Pro Bono and the Law Foundation. In that context, I have had exposure to British Columbians from all over the province. One of the responsibilities of Law Foundation governors is to serve as liaison governor to specific grantees, which involves an annual site visit to their facilities. I had memorable journeys to places as far afield as Haida Gwaii and Fort St. John, where the community advocacy programmes funded by the Foundation face challenges serving remote and poorer communities, often Indigenous ones. Among the most moving of the experiences I enjoyed as Chair of the Foundation was a dinner at the Musqueam Band office in Vancouver to celebrate the contribution of community Elders from across the province who had volunteered their time to participate in the First Nations Court’s alternative sentencing programme. Several of the Elders told us of their experiences in residential schools and of humiliating interactions with the justice system earlier in their lives. I was struck by how the face of the justice system has not always been as sympathetic as we now aspire to make it.
• There is a wide spectrum in the relative levels of prosperity among Canadians. I have acted for much of my career in the heart of Canada’s business community, in one of its largest law firms. My personal client base has included financial institutions, real estate developers, universities, energy companies, engineering firms, manufacturers, forestry companies, accounting firms, retailers, insurers, governments and Crown corporations. I have acted for the Crown, regulators and the defence in criminal and regulatory prosecutions. I have also spent a significant part of my career doing pro bono work for poor and indigent clients and community organisations, and have served on the boards and as Chair for organisations that fund and facilitate access to justice initiatives.
• Through these experiences, I have gained exposure to a very wide and diverse set of perspectives, reflecting at many levels those of the country at large.

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

• Judges provide an essential public service in a constitutional democracy. It is to a judge that one ordinarily goes in order to obtain justice. Judges dispense justice by applying the law to the cases that are brought before them. It therefore falls primarily to judges to discern, uphold and articulate the law as it applies in particular cases. That role is essential in a constitutional democracy which, as the name suggests, rests fundamentally on the rule of law.
• If “democracy” can be defined as a system of government in which the majority rules, then a “constitutional democracy” is a kind of democracy in which the rule of the majority is qualified by a set of more fundamental rules, practices and principles that are enshrined in a constitution to reflect their superior status. The rule of law is itself one such preeminent constitutional principle. In essence, it requires that no one be placed above the law. The principle has developed over the course of history as a safeguard against abuse of power by those in authority.
• In a constitutional democracy like Canada’s, judges are the primary guardians of the Constitution, including the rule of law. They fulfill that role by deciding cases in a particular way. The litigants initiate legal proceedings to frame a dispute and present it to the court for adjudication. Judges do not initiate proceedings nor do they enter the fray as would an inquisitor in other systems. Rather, judges take the case as presented to them by the parties, hear both sides as prescribed by law and then decide the case by applying the law to the facts as they find them to be according to law.
• An ancillary constitutional principle that flows from the rule of law is the independence of the judiciary. It requires that judges be independent of the parties who appear before them – including the government as manifested in the various organs of the state. Judges must be free from outside influence, and must be seen to be so, in order to exercise their function properly. By conferring on judges the power to discern and articulate the law independently, society entrusts them with a solemn responsibility.
•  Judges too are subject to the rule of law. This has two important consequences: first, it means that they must decide cases according to the law and not their own personal views, even if they may disagree with the result that the law produces. Second, judges must respect the other constitutional rules, practices and principles that operate to limit the role of the judiciary. A constitutional democracy is still a democracy, which means that judges must defer and yield to the other branches of government unless the law requires them to do otherwise.
• Traditionally in the common law world, it used to be thought that another corollary flowing from the structure of the judicial system was that judges cannot properly create the law but only apply it. Even in cases where the law was uncertain, so the theory went, a judgment settling the point merely declared what the law had been all along, unbeknownst to everyone until then. Reform of the law was a response to “hard cases” that was best left for the other branches of government. The theory continues to hold some sway, but in a more subtle form. In modern practice, particularly since the advent of the Charter, it is generally acknowledged that judges can and should create new law in appropriate cases. In doing so, however, they are admonished to tread carefully and go no further into uncharted territory than necessary to resolve the matter at hand, relying at every step on principles drawn from precedent. This cautious approach is sometimes referred to as the “incremental” development of the common law – it reflects the modern balance that has been struck to recognize the salutary role of the judiciary in shaping the law while still preserving the traditional preference to leave the larger leaps in the reform of the law to Parliament or the legislatures.
• This broadening of the role of the judiciary in the post-Charter era has brought with it new challenges. The work of the courts has tended to attract more media attention and with it sometimes more critical scrutiny. In addition to maintaining their independence, judges must conduct themselves in such a way as to foster respect for the administration of justice – which means, among other things, staying above the fray of day-to-day political discourse. When they are called upon to make value judgments in the course of their work, they must strive to give effect to society’s deepest values. But judges cannot be beholden to fleeting public sentiment in the same way that politicians are.
• They must be prepared when necessary to do the unpopular thing, if that is more in keeping with society’s fundamental values as reflected in the constitution.
• The role that is considered appropriate for judges in our constitutional democracy has evolved over time and will continue to evolve. The judicial system has long since adjusted to the Charter. The next challenge that is reshaping the role of the judiciary is the need to make justice more accessible to the general public. That need has, to date, driven a diminution in the role of the judiciary to make way for less formal tribunals and dispute resolution services. The challenge for the judiciary in the coming era will be to keep its essential service accessible to those who require it most.

4. Who is the audience for decisions rendered by the court(s) to which you are applying?

• The decisions of the superior courts should be directed simultaneously at several actual or potential audiences. These include the litigants, the appeal courts, and other actors in the justice system, and the general public. The relative importance of each audience will vary from case to case, but every judgment should be prepared with all of them in mind.
• Judicial decisions should be written first and foremost for the litigants themselves. They are the actual users of the justice system, which should be geared primarily to meet their needs. They are the ones who have come to court seeking a resolution to their problem. Both the successful and the unsuccessful litigants need to receive the court’s answer and the reasons for it. The judgment should not only yield a clear answer that ends the litigation (subject to the right of appeal), it should also address squarely the arguments that were advanced by the unsuccessful parties, so that they too can feel that they have at least been properly heard, even if they do not agree with the result.
• The next tier in the audience of the court of first instance is the appeal court. It is essential for the proper administration of justice that disappointed litigants have available to them a viable right of appeal. That right depends on the court of first instance leaving the reviewing courts with the tools they need to do their job. The reviewing courts need to be able to retrace the findings, inferences and logical steps supporting the decision under review in order to be in a position to review what was done and, if necessary, address any errors. It is much harder to address errors that are obscured or latent. The resources, time and expense that were invested in the proceedings by the litigants on all sides below may go to waste if the reviewing court is left in confusion about the path that was taken to reach the decision under appeal.
• Next in the expanding circle of audiences are the various other actors in the justice system, such as other judges, lawyers, police officers and others who look to the court for guidance in their work. Making judgments accessible to and usable by jurists and others in the business of working in and with the law is essential to allow them to perform their functions properly. It also serves the related purpose of ensuring that the courts remain consistent in their reasoning and treatment of issues from case to case – itself an important feature of a properly functioning system of justice. It is also vital for the continued growth, evolution and development of the law itself. As Oliver Wendell Holmes famously wrote: “The leaven of the law is not reason but experience.” Individual judgments are the “experiences” that make the dough of the law rise and, as such, should be written with a view to engaging that part of the audience that is charged with understanding and applying the court’s reasoning in other cases.
• Lastly, judgments should also be written for the general public. It is not enough that justice be done; it must also be seen to be done. The public has, in that sense, an interest in the disposition of every case that comes before the courts. This is especially true in criminal cases, where the public is also, in effect, the initiating litigant. The denunciatory element in criminal judgments is, by definition, directed specifically at the public. By mandating that sentencing courts take the need for general deterrence into account when sentencing offenders, Parliament has specifically directed judges to target the public as part of the audience for their judgments. The need to deter segments of the public can also be a factor in some civil contexts, such as punitive damages or costs awards.
• More generally, one of the fundamental pillars of the justice system is the “open court principle,” which requires that the courts be quintessentially public institutions that operate transparently at every level in the plain light of day, subject only to limited exceptions arising where other interests are shown to weigh more heavily in the balance. Like the actual live proceedings in the courtroom, the written judgements of the court must be constantly on display – accessible to and designed and in part of the eyes of the public, as windows into his operation of the judicial branch of government and the rule of law. The judgments of the court serve as its principal medium of communication with the public, which must therefore be seen as an essential part of the audience in every case.

5. Please describe the personal qualities, professional skills and abilities, and life experience that you believe will equip you for the role of a judge.

• I am applying to be a superior court judge because I believe that I am well suited to the position and can make a unique and significant contribution to the work of the court.
• I have honed my professional skills over the 24 years since my call to the bar practicing law as a barrister in downtown Vancouver. In that work, I have developed strong analytical and writing skills and a keen grasp of the law and the operation of the courts. I have managed a busy practice as a partner in a prominent national law firm with its attendant demands and pressures. I have been lead counsel on many significant cases of national importance. I have also devoted a significant part of my career to the cause of improving access to justice for those in need of legal assistance, by volunteering on a regular basis to act as pro bono counsel and taking on prominent leadership roles in that sector.
• I have strived at all times to be respectful, courteous and fair. I have earned the respect and friendship of colleagues and opponents – several of whom have urged me to make this application because of my temperament and professional skills.
• In the practice of law, as in other walks of life, it has become increasingly common to specialise.  Despite pressures to do so in the firm and in the practice, I have persevered as a generalist. Indeed, few candidates for the bench will have had the breadth and depth of experience that I have had in my practice, which has included not only both barristers’ and solicitors’ work, but also extensive exposure to both criminal and civil litigation, in areas as diverse as securities, tax, bankruptcy, class actions, energy, Aboriginal, environmental, constitutional and poverty law, to name a few. I know, all too well, what it feels like to have to get on top of and then navigate a new area of the law under pressure and within tight timelines. This versatility would be a useful asset for a court that has resolved to maintain its tradition as a generalist court. It also serves to reinforce a healthy sense of humility in the face of what is still to be learned.
• Practicing as a solicitor for the first two years of my career has made me a better barrister. Acting as Crown counsel prepared me to be a better criminal defence lawyer, and vice versa. Studying the civil law of Quebec gave me deeper insight into the common law of English Canada.
• In a similar way, living abroad for several years between my undergraduate degree and law school gave me a deeper appreciation of Canada’s democratic institutions. I was studying in Jerusalem when the first “intifada” erupted violently in the Palestinian territories in 1988 and I saw first-hand what can happen when political, religious and ethnic tensions overwhelm the fragile consensus supporting coexistence, pluralism and the rule of law – a consensus that we in Canada can often take for granted. I no longer do.
• One of the formative experiences that eventually drew me to a career in law occurred while I was living in Israel. Like much of the country, I followed the prosecution of John Demjanjuk, an American citizen originally from the Ukraine, who had been extradited to Israel on charges that he was “Ivan the Terrible,” an infamous guard at the Treblinka concentration camp during World War II. He was convicted in 1988 following a highly publicized trial that lasted many months. The Israeli Supreme Court later overturned the conviction, citing frailties in the evidence going to identification. Most of the country was horrified by the result – the ensuing media coverage expressed dismay that the highest court in the land could be so out of touch with the rest of society. As an aspiring jurist, however, I was struck more by the courage and fortitude of a relatively young justice system that was able to withstand the intense public pressures bearing on it to sustain the conviction.
• Years later, I had a very similar reaction following the acquittal of the two Air India bombing defendants in Vancouver at the conclusion of their multi-year “mega-trial” in 2005. This time, I was actually a member of the prosecution team, had worked hard for many years with my colleagues to secure convictions, and shared in the general sense of disappointment over a lost case. But I could not help but relive the same sense of satisfaction with a system (one that I now worked in and was a part of) functioning as it should – true to its most fundamental principles, like the presumption of innocence. These episodes carried powerful lessons for me about the role of the judiciary in a properly functioning system of justice.
• My belief in the system and in what it can and should be has driven me to devote a substantial part of my career to the cause of advancing access to justice. This work reflects, among other things, compassion for the disadvantaged, a longstanding commitment to the pursuit of justice and a sense of duty – each important qualities for a judge.
• Judges should also be disciplined, measured and balanced. I do not rush to judgment. I am inclined by disposition to approach problems dispassionately and to rely on reason in preference to emotion. In confrontational settings, I am inclined to discern and accommodate the perspective of the opposite side. As I have matured in my practice and gained experience acting for clients with widely differing perspectives, I have come to identify more and more with the middle ground. The appropriate culmination to this inclination toward neutrality would be a career on the bench.