The Honourable Paul Favel’s Questionnaire

Under the new judicial application process introduced by the Minister of Justice on October 20, 2016, any interested and qualified Canadian lawyer or judge may apply for federal judicial 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 may be made available to the public, with their consent, should they be appointed to the bench. The information is published as it was submitted by the candidates at the time they applied, subject to editing where necessary for privacy reasons.

Below are Parts 5, 6, 7, and 11 of the questionnaire completed by the Honourable Paul Favel.

Questionnaire for Judicial Appointment

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: No

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: No

Part 6 – Education

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

University of Saskatchewan, 1989 to 1992, BA (Arts) obtained in 1995

Dalhousie University, 1992 to 1995, LLB obtained in 1995

Continuing Education:

Honours and Awards:

Lexpert Leading Lawyer Under 40, 2008

Queen's Counsel designation from Saskatchewan, 2010

Best Lawyers in Canada (Saskatchewan), 2012 to 2016

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:

MCKERCHER LLP (2004 to present, previously 1995 to 1998)

SASKATCHEWAN HUMAN RIGHTS COMMISSION, Deputy Chief Commissioner (2011 to present)

FEDERATION OF SASKATCHEWAN INDIAN NATIONS, Director of Treaty Governance/Legal Counsel (2004)

ASSEMBLY OF FIRST NATIONS, Advisor to the National Chief (2003)

FEDERATION OF SASKATCHEWAN INDIAN NATIONS, General Counsel (2002 to 2003)

BURCHELL MACDOUGALL, Associate Lawyer (2001 to 2002)

PILLIPOW & COMPANY, Associate Lawyer (1998 to 2000)

Non-Legal Work Experience:

ISHKONIGAN INC., Chief Operating Officer (2015 to present)

POUNDMAKER CREE NATION, Band Council Member (2012 to 2013)

INDIAN RESIDENTIAL SCHOOLS SETTLEMENT AGREEMENT, Oversight Committee Member (2010 to present)

INDIAN BROOK FIRST NATION, Advisor (2001)

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.

Canadian Bar Association

Pro Bono Activities:

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, Canadian Institute for the Administration of Justice, etc.)

University of Saskatchewan, College of Law. Sessional Lecturer on new course on First Nations Economic Development, fall 2016

Community and Civic Activities:

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

Past Board Member, Big Brothers Big Sisters Saskatoon

Past Board Member, Lung Association of Saskatchewan

Past Soccer Coach, Silverwood Heights Community Association

Past Soccer Coach, Hollandia International Soccer Club

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?

I regard my most significant contribution to the law and pursuit of justice to be in the area of education as it relates to achieving reconciliation for Indigenous Canadians. My experience as an Indigenous lawyer in Saskatchewan and my work with Indigenous communities has educated me about Indigenous legal issues and it has afforded me with an opportunity to educate both Indigenous and non-Indigenous communities about Indigenous legal issues and Indigenous people generally.

I was the first First Nations person to article, work as an associate and become a partner at McKercher LLP and that has been an education for me and for the lawyers and support staff at McKercher LLP. My time at McKercher LLP has provided not only a visual example of reconciliation in effect but it has also afforded an opportunity to have respectful conversations about Indigenous legal and policy issues and about societal matters including race relations in Saskatchewan and Canada. I believe that my time at McKercher LLP has been educational since McKercher is committed to not only ensuring that we grow our First Nations law practice but they are also committed to growing the number of Indigenous lawyers at the firm. I can proudly say that we now have five Indigenous lawyers at McKercher LLP. It has been a valuable learning experience for all involved. I think this is an example of how education can be a way to begin reconciliation.

My work on behalf of Indigenous communities while at McKercher LLP has had an educational component at every level. The majority of my legal work has been in the area of the betterment of Indigenous communities whether it be through economic development and governance activities or social and educational activities. For instance, I have been involved in a unique partnership between a First Nation and a school board that sought to enhance educational outcomes for the First Nation’s children. This work involved negotiations with various levels of government and the school division to ensure that the objectives of the First Nation were met. It will be exciting to see the educational outcomes of this partnership.

My work in a self-government negotiation has also provided an avenue for attempting to reconcile the interaction between First Nations governments and Canada. Often my clients’ goal is to remedy past injustices and the effects of harmful legislation and policy directed at First Nations and participate meaningfully in society. Enhancing their governance and economic structures is the focus of these negotiations.

On the economic development front, I have been able to assist clients in utilizing Federal and Provincial laws to advance their objectives. A key part of this work requires regular and ongoing dialogue with community members to ensure they remain educated and engaged about the various avenues of economic development opportunities. I have had to learn to utilize certain laws such as the First Nations Land Management Act and the First Nations Fiscal Management Act to advance First Nations in developments on their reserve lands. I have also had to educate Indigenous communities about these laws and how to utilize them as part of their economic development strategy.

Examples of other contributions to the law and pursuit of justice in Canada have been in my roles with the Saskatchewan Human Rights Commission, the Oversight Committee and as a sessional lecturer at the University of Saskatchewan law school. My involvement in each of these areas has had a strong educational component and, as a result, I have come to appreciate the crucial role that education has in reconciliation efforts. At the Saskatchewan Human Rights Commission we have undertaken the task of initiating work on teaching rights, responsibilities and respect in the Saskatchewan school curriculum. The overall objective of this initiative is to ensure that we create an opportunity for citizens to remain engaged in our democratic process. It has been an amazing experience to be part of such an exciting and much needed initiative. As a member of the Oversight Committee I have assisted with many initiatives to not only create awareness of the residential schools but to ensure that the Independent Assessment Process remains client-focused and ensuring that the claimants' interests are protected. The Independent Assessment Process, as difficult and challenging as it is, is geared to providing compensation for the claimants. More recently, as a lecturer at the University of Saskatchewan law school I have had the great pleasure of developing the first ever seminar course on First Nations economic development. In this course, I have tried to ensure that the students are aware of the relationship between government and First Nations people as a backdrop to current economic development opportunities and challenges facing First Nations communities. I have modeled the seminar on my entire legal experience.

It is important for the legal profession to understand and appreciate the shared history that all Canadians have and how this has allowed some Canadians to prosper while other Canadians have not. While some of this history is not positive, it is important to understand this history in order to appreciate how to move forward. I have applied this knowledge to assist First Nations communities in trying to achieve economic self-sufficiency through economic development initiatives.

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

Deciding to attend law school at Dalhousie University in Halifax, Nova Scotia was one of the major decisions that enabled me to obtain a better perspective of diversity. It allowed me to compare and contrast my experiences growing up in Saskatchewan with my experiences in Nova Scotia. Moving to Nova Scotia to attend law school was a conscious decision to experience a new part of Canada and to grow on a personal level. I learned about the maritime-based economy and about the history of African-Nova Scotians and Acadians in Nova Scotia.

Learning about the histories of both African-Nova Scotians and Acadians provided an awareness that there is still unfinished business to tackle in the areas of reconciliation for other groups who have been mistreated. Learning more about the African-Nova Scotian and Acadian experiences taught me that Indigenous Canadians were not the only group that were historically mistreated and that there remains lingering effects of such historic mistreatment to this day. In addition, while in Nova Scotia I also learned about the people of Atlantic Canada and their unique economic and social circumstances. These circumstances are not too different from the circumstances of the Prairies. I think it is important for people to experience other parts of our country for these reasons. I also learned more about the Mi'kmaq people of Nova Scotia and their unique legal, historical and cultural place in Canada.

Regarding my legal experiences, having a practice that is devoted to Indigenous people and their legal issues has given me tremendous insight into the diverse histories, traditions, cultures and interests of First Nations throughout Saskatchewan and Canada. As an advisor to the Assembly of First Nations and as general counsel for the Federation of Saskatchewan Indian Nations I have learned that First Nations are not a homogenous group where a one-size fits all approach will lead to immediately improved circumstances. There are 633 First Nations communities throughout Canada and all have their unique challenges and opportunities. Each level of government, be it Federal, Provincial, Municipal or Indigenous, along with their respective departments and bureaucracies, need a coordinated effort to assist in developing solutions for not only Indigenous Canadians but for all Canadians who have been historically disadvantaged. Different perspectives can be helpful in trying to reconcile the relationship between the many diverse groups within Canada and the rest of society. In addition, my work in the area of First Nations law has brought me into close contact with financial institutions, business leaders and governments. Each of these groups have afforded me with a different vantage point in which to view legal issues in relation to Indigenous people and Indigenous issues. These different perspectives have allowed me to broaden my perspective and it has taught me to be open-minded about the application of laws from different vantage points. Having a broad legal practice over the years has helped me appreciate the variety and diversity of Canadians.

My work with the Saskatchewan Human Rights Commission has been a very influential factor in my education about other groups in Canada who have faced obstacles. The composition of the Commission members is diverse in and of itself and that alone has broadened my appreciation and awareness of constituent groups who the Commissioners represent. Like my time at McKercher, at the Commission we have respectful conversations and learn about each group that the Commissioners represent. Some of the events that I have attended have also broadened my perspective on why such arms-length independent institutions like the Comission are necessary in a democratic society. Institutions such as the Commission are examples of how independent bodies can assist in remedying discrimination through not only the hearing processes but through educational efforts and systemic advocacy. The most important development with the Commission has been in focusing on mediation throughout the process as a way to address people's interests and to hopefully resolve things expeditiously. The conversations during mediations have yielded satisfactory results for the participants. That is one of the reasons I see the value in having conversations and educating ourselves about diversity.

My work as a member of the Oversight Committee has also afforded me with an opportunity to broaden my awareness of the entire residential school experience that many Indigenous people encountered. The Oversight Committee is comprised of people representing First Nation, Inuit, Catholic and Anglican churches and government of Canada officials. I have learned about the perspective of each group and the reasons for the positions they put forward. More importantly, I have learned that, in spite of different legal positions, there can also be an appreciation for the diversity of people and there can also be respectful conversations on how to approach difficult situations.

I feel that my experiences with diversity and the different perspectives of people within Canada has been comprehensive and it has helped me become a better person and a better lawyer.

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

A constitutional democracy is a unique system that encourages participation of its citizens in the democratic processes of a country. This participation in the democratic process involves citizens voting for the people who will represent us and which in turn includes the creation of laws by the legislature and the application of those laws to its citizens. To work ideally, the system requires citizens to be actively engaged in understanding their rights and responsibilities to one another as well as their rights in relation to their municipal, provincial and federal governments. It also requires the government to legislate in a manner that reflects society's priorities and concerns. Governments attempt to create legislation that addresses societal issues and to govern its relationship with its citizens. A foundational component of these rights and relationships between the state and its citizens is the Constitution and the Charter of Rights and Freedoms. Because of the Charter, judges find themselves defining the freedoms and rights guaranteed by the Constitution and they rule on individual rights. The appropriate role of a judge in a constitutional democracy is to interpret and apply the law and the Constitution and to adjudicate disputes between individuals, the state and the individual, and different levels of government within Canada. Unlike the executive and legislative branches of government, a judge is not accountable to any government or to the electorate for any of their decisions. Judicial independence is a fundamental principle of our constitutional democracy and maintaining that independence is crucial for society to have faith and confidence in our judicial system. Judicial independence means that every Canadian should take comfort knowing that all issues before the courts will be resolved impartially.

In a constitutional democracy a judge should not be influenced by political partisanship. A judge should protect the public good and maintain the rule of law when called upon to adjudicate matters. A judge, though appointed by government and paid by the government, is not a politician and must be prepared to rule on matters affecting the government. A judge must be prepared to set aside his or her political beliefs in doing so. Although it is crucial and fundamental to our constitutional democracy for the judiciary to be independent, it is just as crucial for individual judges to be seen as being objective and impartial.

To protect the public good a judge must at all times hold themselves to high ethical standards to ensure the public has faith and confidence in our judicial system. A judge must avoid words or actions that might also give the appearance of bias. A judge must conduct himself or herself with high standards of integrity in their professional and personal life at all times. Actions and words are carefully scrutinized by the public so care must always be taken to ensure that the public confidence is maintained.

A judge assumes a role that involves examining and deciding on matters involving some of the most contentious political issues in society. This is a significant responsibility that requires courage to weigh in on precedent setting issues or when deciding on a highly political and perhaps unpopular matter. A judge must not be influenced by the media or by interest groups when making decisions.

The role of a judge is also to bridge a gap between law and society. Many Canadians have difficulty accessing justice due to the costs associated with litigation and due to the specialization that is required to advance a matter before the Court. Those members of society that can access justice are seeking to resolve their particular matter. A judge should write his or her decisions with the public in mind, by careful explanation and, to the extent that it is possible to do so, by writing decisions in terms that the public can understand.

Lastly, another role of a judge is to increase public and media understanding of the role of judges and the operation of the court system. Living in an era where information can be obtained quickly, it is important to ensure that the judiciary continues to explain its role in a constitutional democracy on an ongoing basis. With the proliferation of litigation and the constant evolution of the law it is important that society continues to be educated about the role of the judiciary and that the public understands and appreciates the need for an impartial and independent judiciary. The judiciary in a constitutional democracy should also be comprised of individuals that reflect the composition of Canadian society. Canadians need to feel assured that their Courts reflect their society.

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

A judge should illustrate that they have carefully thought out the issues and arguments of the parties before the Court. This is an extension and refinement of the judge's previous role as a lawyer providing legal opinions to clients. As a result, the audience for a decision by judge of the Federal Court of Canada is a very broad audience bearing in mind the federal jurisdiction of the Court.

A judge's immediate audience for decisions it renders are the litigants in the legal process. Litigants feel very strongly about the issue(s) that they are bringing before the Court and they want to see the reasoning that the judge goes through and want to see their arguments validated or at least acknowledged. A judge must write decisions to provide his or her reasoning for the litigants and their clients so that they have satisfaction with the judicial process regardless of the outcome in their particular case. The litigants have spent time and money getting before the Court and they deserve a well-reasoned and timely decision to continue to have confidence in the judicial system.

A judge also writes or makes decisions for the public. Some issues before the Court can have national application and importance, therefore, a judge is required to take into account the public as one of its audiences. For example, the Federal Court is responsible for interpreting all federal statutes including but not limited to statutes dealing with maritime law, matters of national security including immigration, reviews of decisions related to federal government in relation to environmental issues and Aboriginal rights. Pronouncements on these issues provide clarity for the public, industry and other interest groups that comprise Canadian society. A judge's decision will assist various members of the public in formulating their own personal opinions about a topic, it will shape the nature of advocacy for various interest groups and it has the effect of providing some parameters for business and industry to operate. Judge's decisions provide guidance and clarity to the public. The role and responsibility of the judiciary should also be communicated to the public.

Another audience for judicial decisions are the legislative and executive branches of government. A decision could require the government to engage in the legislative process to re-write a law completely or to make amendments to deal with one part of the law that is unconstitutional or beyond the reach of the legislature. The judiciary has a key role in maintaining the rule of law in our democracy.

A judge also writes for their court colleagues. A decision will provide some precedent that will be followed by colleagues on the various levels of Court. It could provide clarity of an issue that has been before the court previously but in a different fact situation so there is room for clarifying a complex issue. A further more specific audience would also be Courts of Appeal. In difficult cases, a judge should write a reasoned decision so that an appeal court can understand the consideration given to issues.

The last audience would be the legal profession generally. There could be conduct or practice issues that are raised in the course of a particular matter. A judge's decision also creates precedent that the legal profession relies on in order to continue to provide a service to the public.

A judge will often face questions which are new and unfamiliar and which are characterized by complex social, moral and political issues that are important to society. Consequently, a judge's decision will be reviewed by many parts of Canadian society. Public acceptance of and support for court decisions by all parts of society depends on public confidence in the integrity and independence of the judiciary. The responsibility is a significant one that requires an open-minded and impartial judiciary.

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.

The personal qualities that will equip me for the role of a judge are my open-mindedness, my empathy, the respect that I give to all people as well as my strong work ethic. I believe a judge requires an open mind in order to hear arguments and to have a different perspective than one's own personal experiences and upbringing have provided. The highest obligation of a judge is to decide on matters without bias or pre-judgement. Empathy allows a person to better understand the perspectives and experiences of the people attending before the court. I believe that this is an important part of being a judge. I believe respect for other people is a fundamental quality that all people should possess particularly if one is dealing with people on a regular basis. Being respectful tends to bring out similar behavior on the part of others. A strong work ethic is also required. I realize there is a significant amount of travel required at the Federal Court and this will require proper time management and a strong work ethic, which I feel I possess.

The professional skills I have acquired, and which I am continuing to acquire, also make me equipped for my role as a judge. I am able to critically analyze problems and to find solutions. I have also become specialized in many federal statutes by virtue of my practice in First Nations law and most recently in my involvement as legal counsel for a First Nation in self-government negotiations. A self-government process is the transfer of jurisdiction from the Federal (and possibly Provincial) government to a First Nation government and one is required to understand the legal significance of these statutes. My involvement in self-government negotiations has also afforded me with some insight into negotiation strategies and tactics and developing strategies for negotiating contentious issues. Another skill I have developed is the ability to communicate effectively on an individual level and in a group setting. I have made many presentations to First Nations communities, government officials, business leaders and at many conferences on First Nations legal issues. Another ability that I have acquired is the ability to educate clients, law students and community members on various legal issues and concepts. Law is complicated and the ability to simplify it is a skill that I take pride in.

I have also developed a commitment to continued learning as evidenced by my enrollment in an arbitration course in November, 2016. I think continuing one's education is a significant part of being a judge. The law is constantly evolving and one must keep up with the latest developments.

I also take pride in my ethical responsibilities to the profession. I view this as an extension of who I am as a person and, as such, it has made practising law very rewarding. I intend to bring that same approach to the judiciary.

More importantly, I believe my life experiences make me best equipped to fulfill my role as a judge. I grew up in relative poverty on Poundmaker Cree Nation. For part of my childhood, I grew up without running water with a wood stove for heating and cooking. It has taught me to understand poverty and the social consequences of poverty. I am also a third generation residential school student. My experiences from the ages of 15-17 were positive but it was a different time than when my father and grandfather attended. While they suffered through many of the same things that other residential school students suffered through, they did tell me about some of the positive things they learned while at the residential school such as practical work skills, the value of attaining an education and the need for a strong work ethic. Hearing about my father's and my grandfather's experiences and their perspectives has taught me to be open-minded and to look for positive experiences in all things and to use adversity as motivation to achieve things. This is a key teaching that I have applied in my journey as a lawyer. My mother was also physically disabled and this has given me an appreciation for issues facing disabled people particularly those living in poverty. This has also been a humbling experience for which I am thankful for.

Regarding my educational experiences, I do have to mention the very positive experiences I have had with teachers from the elementary, secondary and post-secondary levels. There are so many teachers that I credit for providing me with much needed self-confidence and self-esteem both in education and in sport. In my legal career, I have also been fortunate to have been mentored by so many generous and skilled lawyers who have provided invaluable skills and advice to me over the years.

All of the above experiences have taught me about the value of possessing good character, possessing a strong work ethic and having compassion and empathy for all people. All of these characteristics make for not only a good lawyer or judge but also a good human being. All of these experiences have shaped who I am and the direction my practice has taken which is why I am thankful to have been selected to assist with the work of the Saskatchewan Human Rights Commission, the Oversight Committee and teaching at the University of Saskatchewan law school.

I will need to draw upon all of these experiences that I have learned should I be selected to be a judge of the Federal Court of Canada.

6. Given the goal of ensuring that Canadians are able to look at the justices appointed to the bench and see their faces and life experience reflected there, you may, if you choose, provide information about yourself that you feel would assist in this objective.