ACJOMichal Fairburn

2Hello, Pulat, how are you?

4I, I can see the photo, yes.

6Well, I can tell you who the one is on, on my, my right as I look at the screen.

8Yeah, 1276. I, I definitely know that person. That's a, a very young version of me.

10That's not unusual. I've been called Michelle, Michael, all kinds of things my, my whole life. So yeah, that's very possible.

12There you go.

14Well,

16Well, that's good research on your part, Pulat, I must say.

18I do. I'm still a runner. Yeah, I'm a much slower runner now, but I'm still running. Yes.

20It was actually our parents got us all into running, my sisters and and me as well. My parents were runners. My father in particular was a big runner, and they thought it was a fun family activity to do together. We actually had a family uniform and used to go to races together as a family. I haven't thought about that in a long time, but yeah, so we would run together. I was raised in, in the country and we had lots of side roads to, to run on, so we, we did a lot of that. Yeah.

22I grew up in Brock Township. I was born in Toronto as were my sisters, and— but we moved up, up north. My father got a principalship. He was a teacher prior to that and then a vice principal, and then when he got a principalship, it It was in Brock Township. So the whole family got moved out of what we were— where we were living at that time, which was Scarborough. Yeah.

24Sure. My mother's first name is Sheila. She's incredible. She comes from a family of a very interesting past, actually, but a family that raised racehorses, actually. And so on Lake Ontario in the Pickering area, close to what is now, or in fact the farm, the old homestead would be on what is now the Petticoat Creek. It's a conservation area out on Lake Ontario in the Pickering area. So that's my mom's background and where she was raised and where she really developed a love, I think, of the country and of animals. My mom is a tender, amazing human being. She loves nature. She loves family. She loves people. She's vivacious. She's incredibly active. In her 80s, we sometimes have trouble getting her on the phone because she's out doing her workout, as she puts it.

26Well, it's actually my middle name, but it's the only name that I have ever been called. My first name is actually, if you look at my passport, Jessie. And often you'll see in my official capacity, there's an initial at the front end of my name, and the J stands for Jessie. And Jessie is actually my grandmother, my father's mother, who was born at home on the, on, in a homestead in Northern Ontario to a number of midwives who assisted. Jessie Annie Frances Rowena were the midwives who attended that birth. And so that is where the name Jessie comes from. And then the middle name, which my parents always called me by, Michal is actually a name my father came across when I was, when I was born, or actually as I was expected.

27And they already had two girls in pretty close succession, and I was coming in pretty close succession after number two. So if I was going to be a boy, I was going to be like everyone else, only they only ever got girls. I was going to be Andrew, but Andrew never arrived. So my dad actually came up with this name. He was pursuing another degree at Queen's University. And frankly, he just came across this name, didn't— I don't even know that he really knew the origin of the name. And he came home and he said to my mom, you know, if it's another girl, that sounds like a really neat name. What do you think?

28And so I became Jessie Michal. Yeah.

30it. Well, you're right. I went to University of Toronto for my undergrad, and I really went there because, again, it comes back to kind of the— I'm number 3 family of 4 girls. My other sisters had already well, they were actually in the University of Toronto at the time that I arrived there. So we— there were 3 of us at the same time, and I just thought, well, my sisters are there, that's, that's where I'll go. And number 2 sister Robin she was at Victoria College at U of T, and that looked fun, so that's where I ended up. And my number 1 sister, the first one Jane, she was at at St.

31Michael's College. And so we were all very close together geographically during those years. And anyway, it was, it was great. It was a fabulous degree. I did it in largely history and political science, and I really enjoyed it. I actually started in economics, but I very quickly realized that wasn't my calling. I switched over and yeah, it was just like, frankly, years of just, you know, satiating kind of a desire to learn about all manner of, all manner of things and really just explore a bit in terms of what my interests were. I ran for the varsity cross-country club during my undergrad. And so I had kind of a vested interest in, in staying at U of T.

32Plus there was some other reasons like personal, you know, relationships and things of that nature. I wanted to stay at U of T, so I, I was very fortunate when I kind of thought, what do I want to do? Ultimately, I settled on— I came from a family of educators, really. Jessie Fairburn was a teacher. My aunts and uncles, I had an aunt and Uncle Fairburn you know, from the Fairburn family who were teachers as well. My father, my mother was in education, everybody. So, and I had a sister already pursuing education. It was going to be teaching or law. I think that's actually the experience of a lot of lawyers, but I ultimately settled on, no, I want to do law.

33So, yeah, I was lucky. I got into U of T Law School and it was a fantastic experience. Mm-hmm.

35Okay, sure. So I'm actually literally physically in my office right now at Osgoode Hall. And what's the function of the Associate Chief Justice's Office? It's somewhat interesting in the following sense, and I don't think a lot of people know this, but Ontario is actually the only province and territory that has an Associate Chief Justice of the province. And that's probably owing to just to our size and our population and so on, but it's a bit of an aberration. There are of course Associate Chief Justices all through the country, and they sit when they're on Superior Courts on the Canadian Judicial Council along with the Chief Justices throughout the country. But Ontario is the only one that has an Associate Chief Justice of the whole province.

36So both the Chief Justice of Ontario and the Associate Chief Justice of Ontario sit on the Court of Appeal for Ontario. And then of course there is the Chief Justice and Associate Chief Justice of the Superior Court of Justice who are also housed in Osgoode Hall, their offices. Chief Justice Morawetz and Associate Chief Justice Faye McWatt. So what does the Associate Chief Justice do? I would say it's largely an undefined role, and you kind of work it out with the Chief Justice. So over the last few years while I've held this position until very recently, the last few months, I held the position while working very closely with Chief Justice George Strathy, which was just an incredible privilege and honor.

37We were able to work together and collaborate, frankly, through most of the pandemic together. Prior to me holding this office, the incredible Associate Chief Justice Alexandra Hoy held the office, and she did that collaboration with Chief Justice Strathy. So, you know, I think by convention, I would say the one thing that definitely falls to the Associate Chief Justice's office here would be scheduling matters in the Court of Appeal. But there are other things, and it depends on that relationship and the give and the take and the kind of you do this, I'll do that kind of thing. I would say that for the most part, the Chief Justice's role is more outward looking historically.

38The Associate Chief Justice's role tends to be more inward looking to the Court of Appeal. So, we are also by virtue of legislation administrators in the province, so when the Lieutenant Governor General can't for, you know, if she's traveling, if she's outside the province, can't perform her duties, then it falls in a certain line to perform those duties on behalf of the Lieutenant Governor General. And falling in that line, of course, is also the Chief Justice of the Superior Court and the Associate Chief Justice of the Superior Court. And once you get down that line, it falls to senior judges on the Court of Appeal.

40Sure. We are a generalist court. Everybody on this court sits on all manner of appeals. Slightly over, in the last few years, 50% of our work is criminal, and historically it hovers around that. So about 50% of the Court of Appeals work is criminal, I would say, and then 50% is everything else. But everybody on this court sits on everything and hears all manner of cases that come before the court. So what we tend to do is look at constituting our panels in a way that has an eye to balance and balance in all respects. Aspects and panels that can hear any type of work that comes. The cases tend to be slotted in after the fact actually, and but we are absolutely confident that all the judges on this court can hear all manner of cases and do do that and decide all manner of cases.

41So we have an extraordinary appeal scheduling unit where the cases come in and times are being looked for, dates are being looked for, and that is all done administratively through the extraordinary work of the people who work in that unit as they're picking the dates and slotting appeals in. We're in pretty good shape right now. You know, even post-pandemic, we're slotting appeals in even right now that we can find dates for the most part. I mean, there's exceptions to the rule, but you can find dates in this court not too many months out if it's what I'd call like an average length of appeal. So that's the work of that unit and the people that work within it to find the right dates and the right panels to put it before.

43So I always hesitate a bit to talk about this because our Our court faced a lot of challenges during the pandemic. We probably faced, though, as an appellate court, less challenges than the trial courts. And I should take the word probably out of that. With certainty, we faced less challenges than trial courts. When we had to change to online, I think it's true that appellate work is uniquely conducive to actually doing it online and doing it in an electronic format. We are not hearing witnesses except in very exceptional cases involving fresh evidence. We don't have people, you know, in and out and too many moving parts. We're dealing with a set record for the most part, as you know, Pulat.

44So we have the kind of court where it's not built for a pandemic. Nothing's built for a pandemic, but certainly when we had to confront that in March of 2020, we were able to get up and running pretty quickly and continue with our caseload. So to answer your question, we actually are not in a backlog situation here. We are pushing right now about the same number of judgments this year, hovering around the same number as we would historically be hovering around at this stage of the year. We've managed to clear the same number of appeals, and we're in pretty good shape, I'd say.

46I hope I didn't say no to you, Pulat.

48Okay, I'm only kidding, but often those requests come through my office. They're either going to come through the Chief Justice's office or my office when you request a 5-judge panel. It's the same thing. Same thing with interventions. For the most part, it will go to the Chief Justice or the Associate Chief Justice. From time to time, they are put into— before a judge in a motions court as well. But the 5-judge panels, I see a lot of those requests. And there are a number of considerations that go into it. I think you start with the presumption that we sit as 3, and there has to be a good reason to sit 5. So the reasons tend to be rooted in considerations like, is this appeal going to potentially raise considerations as to whether our court's jurisprudence is wrong or needs reconsideration?

49If that's the case, you do not want 3 judges deciding whether another 3 judges got potentially something wrong, or that the law should just evolve from there. You probably want to have 5 judges looking at that. So that would be one situation. Another situation would be where we are looking at something that's of significant public attention, like the greenhouse gas reference would be a very good example of where we sat 5 judges on the appeal. And there's a reason for that. It involves the constitutional issues at play, but it also involves the public interest considerations that are so significant. And sometimes those kinds of appeals will actually, even prior to the pandemic, like the greenhouse gas reference case, so we'd actually publicize that and allow cameras into the courtroom.

50So it will often dovetail with something of that nature. but it's very rare.

52There are definitely lawyers who primarily do appeals. You see that primarily on the criminal side, I would say, much more frequent than elsewhere at the Bar. And remember, on the criminal side, one side of that courtroom is going to be a Crown counsel, whether it's the Public Prosecution Service of Canada or what we call in this court the Crown Law Office Criminal, because it's going to be an indictable criminal appeal as opposed to a summary conviction appeal appeal, which would happen in the Superior Court, the Crowns are going to come from a very small pool of Crown counsel because, just, I'll just speak about Criminal Code indictable offenses, the Crown Law Office Criminal at 720 Bay Street, which is actually the office where I started my career and spent a couple of decades, is the office that is the singular office that furnishes the counsel that come to this court.

53It's not like if you are a trial Crown prosecuting in Northern Ontario, let's say Kenora, you would follow your case on appeal to the Court of Appeal. There would be a pass-off within the prosecution service to a Crown counsel and the Crown Law Office counsel. So, and I think it's equally true of the defence bar, you tend see a certain element of the defence bar in criminal law who are here a whole lot. I'm not saying that they never do trials. They probably do. And even the Crowns out of the Crown Law Office Criminal are going to, you know, have trial experience as well and do that from time to time. And indeed, there's a pocket of Crowns in that office who do trials.

54But I would say that it's a much smaller bar that comes here. We see there's frequent flyers, if I can put it that way. I think there's some frequent flyers on the non-criminal side as well coming from the civil bar, but I don't think it's as obvious as on the criminal side.

56Oh, absolutely. My my first or one of my very first appeals was actually when I was here as Crown Counsel and very afraid, and I just couldn't believe that I, I was here. And literally my first month, probably, or a couple of months of practice was was, was with the, the later group to become the Honorable Mark Rosenberg. And he was absolutely legendary for his appellate practice and had a very nice symmetry going, of course, with Eddie Greenspan doing the trial side. So, and if I could just say, I mean, he was— Mark Rosenberg was incredible. I learned so much from him and he was so kind to young counsel.

57He was an incredible mentor even when he was on the opposite side of the courtroom. He'd really lend a hand. He was very encouraging. And later, you know, not too many years later, after I got to know him as counsel, he was appointed to this court, of course, as a judge. And what a pleasure to appear before. And by the way, I've read Marie's biography as well. What a great piece work.

59So interesting.

61Yeah.

63you just have to like give her a call and, and see if she'll do it.

66What, what would be hard for you?

68Yeah, no, look, Pulat, I've never thought about it that way. I mean, you're opening my eyes on that a little bit. I have to say, I might, if I'm walking into the courtroom and I know there's a lawyer who I've seen a lot and I know is an excellent lawyer, you know you're going to have a great day of advocacy. But the best of advocates aren't, it doesn't mean they're advancing the right position. Doesn't mean they're advancing the winning position, or it doesn't mean that they're going to be right in the end result. I mean, there's a, you can't conflate good advocacy with what ultimately or how ultimately the case should be decided. And I think in this court, we really value all forms of advocacy.

69And one thing that we really value here, and I think our money is where our mouth is, is actually new advocates getting on their feet in this court. We see it as a very important piece feeding the health of the administration of justice, that all lawyers are brought along so that they can achieve a level of confidence, so that they can build their advocacy skills, so they can become that a great advocate one day. And in fact, when I say we put our money where our mouth is, we, Chief Justice Strathy and I put out not too long ago, probably I've lost a bit track of time, I find that happens with the pandemic, but during the pandemic, probably in the last 18 months or so, I'm gonna go with that, we put out a joint statement that encourages senior counsel to allow junior counsel to get on their feet in our court and to actually make submissions.

70And there's a reason for that. We really not only value that, and let's face it, it's the junior counsel who often put a lot of heavy lifting into the preparation of that appeal. But we really value the nurturing of counsel in this court and bringing them along. And I think that's really in the traditions of this court, but also of the profession. You don't become a great lawyer just by watching. You can become a great lawyer by watching and by doing and doing and doing and learning by doing. And so, you know, everybody understands that process. So, come back to your original question. I don't think there is any bias. I value everybody's submissions.

71I'm just looking for what's right in every single case, and that might be the position that's being advanced by the lawyer who's 6 months out up against a giant on the other side of the courtroom.

73Well, it depends on where you're a trial judge, what level of court you're on. So if you are already a federally appointed judge, and so you're sitting on the Superior Court of Justice as, as I was, then you've already gone through the, if I can call it this, the appointment process. You've been vetted by the committee and so on. And as a result of that, you don't have to go back through that whole process because you are federally appointed already. And you can just put in a statement of interest or put in any manner or form that you wish to, you, but you've gone through the process. Whereas if you're outside of the federal appointment process, then you need to apply because it will go through the regular application process and there'd be a committee vetting and so on.

76Okay, sure. So, I mean, the first thing I'd say is I don't think I had a meteoric rise at all. I mean, I was Crown Counsel in the Crown Law Office Criminal, and after a certain period of time, I became General Counsel, remaining in that office. But I did all manner of work. Work there. I largely did indictable criminal appeals in this court, in the Court of Appeal, and in the Supreme Court of Canada. But I was always firmly of the view that you have to do trial work as well, or at least for me, I really felt I needed to have a command of a trial court as well so that I felt more confidence on my feet when I was making submissions as an appellate lawyer.

77To me, this was really important to understand the process at an able-to-do level so I could speak about the process and advance submissions knowing the context for it and how it all worked. So I was in and out from time to time. I even took a secondment for a year or more at one point to go work just in a trial office. And I did trials from time to time in different jurisdictions to make sure that I kept my fingers in and I kept fresh on the trial front. So I thought it made me a better appellate lawyer. I'd like to think it helped me along the way a bit. So I, I guess I came up against who would have been, you know, the, the really leading defense counsel back in those days, either, you know, at trials or, or on appeals.

78And what was it, what was it like? I mean, it was always great, quite frankly. You know, it's— I'm a huge advocate of Civility. I always like to get along with everybody I was doing a case with. You could— you can go into a courtroom and be advocating on opposite sides of the courtroom, but at the end of the day, I always like to be able to sit down and— or at the beginning of the day and have a coffee with whoever those counsel were, or whatever you might do, grab a bite after the fact. Congratulate each other on a job well done and see where things ended up at the end of the day.

79But I stood in awe often of the incredible advocacy on the other side of the courtroom. And I really think one of the best things that a lawyer can keep in their toolkit from an advocacy perspective and to make them a really good advocate is is to never make it personal. It's just so important to just never delve into the personal because it's not personal. You're not your client your client isn't you. You've got a job to do and to really respect the individual lanes of each player in the administration of justice. I mean, justice works best when everybody actually in their own lane and not judging each other, but just advancing whatever their mandate is in the courtroom.

80And so I can say, when I was up against all, you know, many of these giants, I was like standing in awe often of the incredible job they were doing. But I, I would like to think we did justice in, in, in those in all of those cases. And you know, it, it just never became personal for me. If it became personal, it was because I genuinely liked the lawyers on the other side of the courtroom.

82General Counsel in the criminal law division, which is where I worked in the Ministry of the Attorney General is a designation given to it's population controlled basically, and it's a designation given when you've achieved, you know, a certain level of you know, I, I'm not sure what the right word—

84Not really seniority. Sometimes Sometimes people get it when they're fairly young. Sometimes they get it at the last stages of their career. But usually it's, it's meant to signify that you are making a broader contribution to the work of the Attorney General. So in the Criminal Law Division's case, what that really means is that it's a reflection of the fact that you're not just kind of within the silos of your individual cases, but you're helping the division at large. So in my case, it may well have been a reflection of the fact that I had certain far-reaching roles as Crown Counsel. By way of example, I ran the electronic surveillance unit for the— not just the Crown Office Criminal, but the Criminal Law Division.

85So I was responsible for delivering the education to Crown agents year by year, figuring out who would be designated under Part 6 of the Criminal Code, handled the wiretap reports for the Attorney General that have to be published every year. I did complex search work. I sat on major case management teams and so on, those kinds of things. So it's a reflection of this, I think this broader, wider contribution when people are designated General Counsel.

87Well, I did. I continued to come in for the most part, as did a number of people, you know, when it was safe to do so. And only then, you know, and masked and following following all of the guidelines necessary and required. But I, it, you know, was I prepared? I mean, were you prepared for the pandemic, Pulat? I don't think anybody was prepared for the pandemic.

89yeah, no, exactly. I mean, nobody was. It just it just arrived, and I think everyone's life was really turned on its head. So I mean, but I think we all rose to the occasion. I am incredibly proud of how justice responded during the pandemic, how justice in Ontario and Canada responded, how we were able to continue to deliver justice at every level of court, how the Chief Justices and the Associate Chief Justices across Canada and all of the judges across Canada, all of the staff working in the courts, all of the lawyers, we collaborated and I think that's what it was all about. We at the Court of Appeal are keenly aware of the fact that we in part made it through, I think, the pandemic, I'd say quite successfully.

90We, as we've already touched on, Pulat, we don't have a backlog in this court, but we deeply indebted, not only to those who work in this building at Osgoode Hall, and I mean, we are deeply indebted to them, but we're deeply indebted to the Bar. We very early on in the pandemic realized we needed to collaborate with the Bar. We needed to get direction from the Bar. We needed to understand the needs of the Bar and to respond to those needs. AIDS. And so I liaised largely— the Chief Justice and I split pretty much on this— I liaised largely with the criminal bar, and we put together an incredibly talented group of lawyers and organizations that were able to assist us and guide us and collaborate with us in terms of the delivery of criminal justice through this court.

91And Chief Justice Strathy did that on the non-criminal side. So with the civil bar and equally with organizations and lawyers who gave so much of their time to allow us to develop practice directions, redevelop practice directions, develop new bail protocols with an eye to encompass trained on liberty interests and making sure we were responding as effectively as we possibly could to those challenges. And I think through that collaboration, we actually did actually quite well. So, you know, leadership through the pandemic, I think everybody showed leadership through the pandemic, yeah. And that includes the bar.

93That's right.

95Oh, something that's changed for the worse. You know, I, I, I like to look at stuff like from, from the better perspective. I find it easier to talk that way. And, and you're You're right, Pulat, a lot has changed for the better. There's no question about it. I think that the justice system is strong and healthy and responding and evolving, and I think we're doing really good work. And when I say we, I mean every aspect of the justice system. What's changed for the worst? I guess I'd answer it through the lens of, you know, what are the challenges today? What are the biggest challenges? And I'd say one of them is just, you know, the sheer weight of the workload, the complexities in the law.

96I think the law is a lot more complex today than it was when I was called to the bar. And trials are a lot longer today. Jury charges, you know, are a lot longer today than they were at one point. And I think a lot of this is a reflection of the, you know, the evolving complexity of the law. And I think that, you know, that places some weight on the system. I think that we have an eye to Jordan ceilings, especially on criminal law. We've got to get through cases in a certain amount of time. And I think that's a real challenge on the criminal side. And it's that ever-present balancing of that against the civil cases and the need to move those cases along.

97And I think these are weighty issues. They're resource complex issues. Issues, and they're ones that we're going to need to, I think, turn our mind to. I think in part one of the good things that came out of the pandemic is that we've— I think we moved probably decades forward overnight in terms of the use of technology in the justice system. I can tell you without one bit of exaggeration what used to happen in this court until March of 2020 is, you know, you would literally have boxes of materials arrive in your office ahead of a sitting week to start to prep for that sitting week. And that just— we basically have no materials arrive anymore.

98Sometimes we get a paper compendium. That's about it. It's all electronic. I mean, that's a very important development. I think that we need to improve this though, and we need to continue to think about technology and the use of technology to make for a more efficient justice system because we can't continue with this archaic record keeping. It's just the crushing weight of it is not something that I think we can uphold for the rest of time. So We've got to figure out how to, moving out of the pandemic now, continue down this path that we're on of technology.

101I don't think you're being too harsh. Never. But I'm not so sure. I think we forget all of that. Just look at this discussion that we've had, you know, just 20 minutes ago we were speaking about the great Mark Rosenberg, who is, you know, one of the greats of all time in terms of both a litigator and a judge in Canada. And look how long the memory of that is. Did you ever meet the Honourable Mark Rosenberg-Pulat?

103But look, you know him, you know his name, and that's because he is part of the legacy, the great legacy of the legal fabric of Canada. And I think that you can look back and think about so many lawyers and judges who who hold that great honour and I think who carved a path of strength, very, you know, formidable, very formidable litigators, very formidable judges, jurists who carved these paths of exactly who we are in the justice system in Canada and what we're about. So, you know, whether whether it's the G. Arthur Martin Room here in the Court of Appeal where we preside behind— when we preside in Courtroom 10, we step into the G.

104Arthur Martin Room and that's where we conference our cases. And in the back halls here, and you know, maybe, you know, some will hopefully see it one day, It's beautiful, the names of judges carved in the wall, in the wood appearing there because there's a rich history. And I think that's really important to remember that the law is always evolving in Canada, but it comes from somewhere and it comes from the hard work of lawyers and it comes from the hard work of judges. And it evolves over time, but it's all there. It's all part of our rich history.

106Thank you, Pulat, and have a happy holiday. I hope you take some time off.

108Thank you.