An Interview with The Honourable Justice Marchand


An Interview with The Honourable Justice Marchand

The Honourable Justice Leonard Marchand was interviewed by Brandon Hastings and Isabel Jackson for the purpose of this article. Below is the full interview.

Q: You have done a lot in your career. What made you choose your path?

From a young age, I always wanted to be an engineer. I never thought about law. I eventually earned my engineering degree and worked in the oil industry. I was motivated, and my company treated me like gold. On paper, everything was good. But at a certain point, the company released a mission statement, and the lead point was about maximizing return to shareholders. My father was a huge influence on me, and making a difference, public service and caring for others were core values for me when I was growing up. When that mission statement came out, it crystallized that I didn’t have a deep connection to the company’s mission — this wasn’t going to be a personally satisfying career for me over the next 35+ years.

I thought a lot about what I might do instead of engineering; I eventually came to thinking law was the answer. So, I quit my job, and went to law school. As a lawyer, I was most proud of making a difference in my clients’ lives. My work on residential school claims was particularly meaningful. As the claims process was winding down, I began to think about what was next for me. I settled on the idea of judging, because I could continue to make a positive difference in people’s lives. And, I could bring my insights as an Indigenous person to the Bench. I have been fortunate that the stars have somehow aligned again and again for me, as I was appointed to the Provincial Court, Supreme Court, and finally to the Court of Appeal.

Q: What’s your favourite thing about being a judge?

As a trial judge, my favourite thing was interacting with the people whose cases were before me. I hoped they felt heard and left the courtroom with a favourable view of the justice system, regardless of the outcome. As an appellate judge, I miss having face-to-face contact with the people whose lives are affected by my decisions, but I know the decisions I’m making now will have an impact on those people and on others. It is rewarding to find good solutions, do my best to articulate the law in a way that real people can understand, and to do it in a way that hopefully shows empathy for the circumstances people are in. It’s about making law accessible to people, and bringing my experiences as an Indigenous person to the role. Those are the things that I’m excited about.

Q: You have a unique viewpoint, having presided in Provincial Court, Supreme Court, and the Court of Appeal. What have you learned makes a good lawyer?

I’ve come to think that the number one thing is to care. People who honestly care will care enough to prepare. They’ll care enough to put the interests of their client first. They’ll care enough to speak in a language that is accessible to their client. They’ll care enough to really understand their client’s problem, and to find the most cost-effective path to solve it. They’ll care enough to focus on the issues, and not get caught up in things that won’t affect the outcome. And hopefully they’ll care enough to be involved with the profession, to give back to the community, to support other lawyers, and to always act in an ethical fashion. To me, all of these things revolve around how much they care. That’s something that gives me a lot of optimism, because my observation is that most lawyers do care. Sometimes they need some mentorship, feedback, or help to do even better. But they want to do better, they want to do their best, because they care. That to me is the number one thing.

Q: What are your thoughts on Indigenous representation on the Supreme Court of Canada?

I think it’s critical to have Indigenous members on the highest court in the country, and I’d like to think the first one will be appointed before long. (Since this interview was recorded, First Nations jurist, Michelle O’Bonsawin, has been appointed to the Supreme Court of Canada.)

Q: What is one of the lessons you have learned that has stuck with you?

In the oil industry, I regularly worked with lawyers on regulatory issues. Just before I decided to go to law school, I observed a hearing in front of a regulatory board. Its members weren’t lawyers, they were engineers and geologists. I remember the lawyers speaking in one language, and the members of the regulatory board speaking another. I couldn’t understand why the lawyers spoke in a language that was familiar to them, but not to the board. I remember thinking “Why are they speaking a language that doesn’t make sense to their audience? This is creating issues that don’t exist.” That is a lesson I've kept with me through my career: how do I communicate in a way my audience understands? Today, I don't write decisions for academics, I write them for the people who are behind the case; because if I can write something they understand, then lawyers, other judges, academics, the media and the public should be able to understand it, too.

Q: Do you think there’s a balance between zeal for one’s client, and duty to the court?

I have observed zeal at all levels of court, almost never to the point of crossing the line in terms of the duty to the court, but perhaps on occasion to the point of losing focus on the issues that make a difference. Zeal does not mean advancing every conceivable argument, even if frivolous. Energy is good, enthusiasm is good, but they should be directed toward the issues that make a difference and helping the client solve their problem in the most effective way.

Q: What has your experience been in lower courts, as opposed to the Court of Appeal, in using processes to better accommodate litigants?

As a judge, I think the number one rule is to do what is right. On occasion as a trial judge, particularly in Provincial Court, I modified processes to focus on getting the information that I needed, in a fair and effective way, to enable me to make the decision that the parties needed me to make. In my first relocation case, the parties needed a decision as to whether the children were going to move with their mother to Calgary or stay in Kamloops with their father. The mother was packed and leaving for Alberta immediately after the hearing. With the agreement of counsel for both parties, all of the witnesses were sworn in at once, and I was able to engage in an inquisitorial process where I asked the questions, not the lawyers. With the input of counsel, I was able to efficiently gather the information I needed and render a decision in the timeframe the parties needed. I'm not promoting or endorsing the idea that we should completely revamp our adversarial court process. I’m just providing an example to show that from time-to-time alternative processes have their place.

Q: What motivated you to move from Provincial Court, to Supreme Court, and then to the Court of Appeal?

I became a judge because I felt like I could offer litigants something from my knowledge of how people, especially Indigenous people, come into conflict with the law, how people should be treated within the process, and how good solutions can be found. I knew being a Provincial Court judge was going to be a steep learning curve, and I was lucky to be supported by good counsel in my courtrooms, and local judges who mentored me and gave me their time and guidance. It was a very satisfying role. I would have been very happy to continue in that role until the day I retired, but I was aware that there were at that time a very limited number of Indigenous judges sitting in superior courts in BC and across the country. That lack of representation was a concern to me as an Indigenous person working within the justice system; that was a big factor in my decision to apply to serve on the Supreme Court. I felt like I could make a difference on the Supreme Court, particularly because I had more experience as a lawyer there than in Provincial Court.

A few years later, I received some encouragement from others to put my name forward for the Court of Appeal, and after a lot of reflection I decided to do that. It is a very difficult thing to put your name forward for any judicial appointment, but especially the Court of Appeal. The Court is stacked with brilliant legal minds, and there are a greater number of talented applicants than there are positions on the Court. A lack of Indigenous representation again motivated me to apply.  I thought “if no qualified Indigenous person ever applies, no qualified Indigenous person will ever be appointed.” I hope that the things that I bring from my life and legal experiences complement all of the talent and all of the skills that are already on the Court.

Q: Why do you see Indigenous representation on the Bench as being so crucial?

What I see are Indigenous people who are very disconnected from the justice system: people who feel no one is going to believe them or care about their experiences. They wonder “Why should I participate? Why should I make my complaint, be a witness or show up for jury selection when the system doesn’t reflect my values? Why bother?” So, we have some heavy lifting to do to enhance the credibility of the court with Indigenous people. The Residential Schools Settlement Agreement Independent Assessment Process is a good example of what can be achieved. Although the process wasn’t perfect, the actual number of survivors who submitted claims smashed people's estimates, and that's because it was such a credible process. Part of that was having a significant number of Indigenous adjudicators. That helped a lot. Likewise, having Indigenous judges will help build the credibility of the justice system in the eyes of Indigenous people.

It's important to have Indigenous voices throughout the justice system, so that we can start to establish, for the first time, a level of trust in a system that has such profound effects on the everyday lives of Indigenous people. We live in this amazing country. When you look out the window you see things that function and are generally fair. You see people aspiring to achieve goals, and having opportunities to reach them. And why is that? It's because we have a true democracy with free and fair elections; where our elected representatives pass laws that are generally respected by the citizens; legal disputes are resolved by courts; and people abide by those decisions. If we didn't have that, it would all fall apart. However, there are some parts of our society, and not just Indigenous communities, that are structurally disadvantaged. In those parts of our society, it’s not the same picture when you look out the window: people in those communities don’t see the same opportunities. As I see it, the justice system has a big role to play in trying to improve things for everyone, especially the structurally disadvantaged. As a human being and a jurist, I think we need the system to work for everybody, not just for some people. We are all of equal worth, and we all deserve a justice system that is responsive to our needs. Having Indigenous representation on the Bench is one way to help ensure our judiciary sees the right picture as we work to find the best legal solutions to complex problems.

Q: Can you speak about your experiences with designing ADR processes for residential school survivors in terms of designing processes for structurally disadvantaged groups?

What I learned is that it's good to have a diverse group of people who contribute their ideas, are open-minded, and are willing to work on other people's ideas without being insistent on having their ideas implemented. It’s also very important to develop processes with the end-users in mind. 

The committees I served on were constantly reviewing every aspect of the Independent Assessment Process (IAP) to try to make it as claimant-centred, responsive, fair and efficient as possible. For example, the first version of the claimant application forms were clearly not developed by people from communities or for people in communities. They were developed by people doing their best based on their life experience. They were very technical and bureaucratic, and asked for more information than was necessary. They felt unnecessarily intrusive. We stripped the application forms down to cover only the things that were really important by asking “what are the things that the adjudicator needs to know about the claim before coming into the hearing?” In my view, the final form was a significant improvement.

It’s probably impossible to create a system that meets everyone’s needs, and perfection is never an achievable standard. We already have one of the best justice systems in the world, but that doesn’t mean we can’t keep working on improving it. My experiences were eye-opening and fuel my optimism, because I saw that when you put your energy into things, it makes a difference. 

Q: What does access to justice mean to you?

Access to justice means that all people who have a legal issue can access a system that is understandable, responsive, affordable, and tries to minimize barriers.

Q: Do you have a statistic in terms of access to justice, or Indigenous access to justice, that is top of mind at the moment?

I don’t have specific data points on access to justice issues, but one statistic that bothers me a lot is that over 30% of the prison population in Canada is Indigenous when Indigenous people make up only 5% of the total population. The national Indigenous prison population was 10% in the mid-1990s when s. 718.2(e) of the Criminal Code was adopted to try to deal with what was then considered a crisis. And today it's worse. Even after accounting for increases in population, and everything else, it's just worse.

One other thing I saw as a trial judge that really bothered me was a gross lack of representation of Indigenous people in the jury selection process. We have a large Indigenous population in and around Kamloops, but I didn't see that reflected in the pool of jurors that were coming into the courthouse for jury selection.

Q: Can you name a book related to access to justice, and/or its interaction with Indigenous issues?

This doesn't line up exactly with access to justice, but sometimes people ask me about advancing reconciliation: “Where do I start? What should I do? What should I read?” My first answer is the executive summary to the Summary Report of the TRC. It’s about 25 pages long, and if you take the time to read it I’d be surprised if it doesn’t make you want to read the rest of the report. Even if you put the report down after reading those 25 pages, you will learn a lot.

And then there are so many other wonderful works by our Indigenous authors. My friend Michelle Good's book, Five Little Indians, is a great read that helps readers understand how residential schools have affected Indigenous people. It's a very human, real story.

There are so many others, but there are two recommendations.

Q: Can you name a role model, or someone you admire in the justice sector?

It's countless. My colleagues at the Bar, the chief justices/judges and associate chief justices/judges I've served with, my ”littermates” who were appointed at the same time as me and who I went through judicial training with, and the many judges who are senior to me who provided me with five minutes or five hours of their time, have all made a difference. I truly admire them all.

I don't want to name names, but I can say that one of the big thrills I've had as a judge was going through new judges training with the recently re-appointed Steven Point. He had served as a Provincial Court judge before being appointed as the first Indigenous Lieutenant Governor of British Columbia. When he was re-appointed to Provincial Court and had to go through the new judge’s training again, I was lucky enough to go through that training with him. I absolutely relished that opportunity and tried my best to sit beside him every chance I had. There are just way too many others to name, but that’s an individual experience that I had that was inspiring and life-changing.

This portion of the interview was originally published in October 2022

Q: How Has the Law Contributed to Making the Lives of Indigenous Peoples Better Since Delgamuukw?

My friend, law school classmate, and Supreme Court Justice Russ Brown said to me not too long ago that “there's so much to do, because there's so much to undo.” I know there's a level of impatience, and that there's a need for sweeping changes. But the reality seems to be that the process of making a difference is going to be brick by brick, step by step, person by person, family by family, community by community. 

Looking back over the last 25 years, I would say that Delgamuukw made a difference. Without Delgamuukw, there would have been no declaration of Aboriginal title for the Tsilhqot’in people. Delgamuukw was a necessary step to get to the place where the court has actually now found Aboriginal title. Although in a different context, in my view, other ground-breaking cases like Yahey v. British Columbia (which for the first time found a treaty infringement based on the cumulative effects of development) also owe a debt of gratitude to Delgamuukw.

Over the last 25 years, there have been other big advances, like the introduction of Indigenous sentencing courts in BC. BC's first Indigenous female judge, Marion Buller, was the driving force behind the initiative that led to the establishment of eight such courts. I had the privilege of sitting in the one in Kamloops. Every day that I sat in that court, I could see how the integration of Indigenous values and traditions made a difference in the lives of offenders, their families, and their communities. Two other important developments are the formal adoption of UNDRIP by Canada and BC, and the passage of Bill C-92 recognizing the inherent right of Indigenous communities to ensure the welfare of their children.

I also think about the work that I and many others did together, on residential school cases in the 1990s and 2000s. I remember the first time I took a survivor through an examination for discovery. I'd taken other victims of child sexual abuse through discoveries before, but I knew this was going to be different. I picked someone I thought had a very strong case, was very bright, and would best be able to handle the rigours of the process. Despite the best intentions of the Department of Justice, and the lawyer asking the questions, my client was absolutely shredded by the experience. And that was a terrible thing; she'd already been devastated by the experience of attending residential school, and then in our adversarial justice system she felt as though the government of Canada was trying to blame all of the troubles in her life on her family, her community, and all the terrible things that happened to her as an Indigenous woman in Canada. The message she got was: “never mind about residential school, you have all these problems for all these other reasons.” When I left that examination for discovery, I thought “this is not good, the adversarial process is not appropriate for these types of claims.”

Canada took a very positive step when it introduced the alternative dispute resolution process (ADR) for resolving residential school abuse claims. The process was inquisitorial and well-suited for certain kinds of cases. With input from multiple stakeholders, we built on the ADR process in the Indian Residential School Settlement Agreement. We created a process, the Independent Assessment Process (IAP), that maintained the best parts of the ADR process, and enhanced it. The IAP wasn't perfect, and not everyone was ready for the process but, for the vast majority of people that I worked with, it was a big improvement over the previous processes. It was faster, less adversarial, more comprehensive, and more supportive. The validation and apologies that claimants received at the conclusion of a hearing were just as important as the compensation that they received. Hearing an adjudicator and a Government of Canada representative say, “I believe you. That was not your fault. That should never have happened,” was very meaningful to survivors.

Let me give you a few examples. I acted for a woman from a small community in the Yukon. After suffering sexual abuse at a residential school, she was so disturbed by her memories that she had never slept through the night. She phoned me after her hearing, and said “I feel like I'm free. I actually slept through the night for the first time in seventy years.” Thinking about her literally still gives me goosebumps

I had another client in Yellowknife who had been sexually abused by a priest, which he considered to be very shameful. He was struggling with substance use disorder, disheveled and on the verge of homelessness. He was sure he wouldn't be believed but, when he was, it changed his life. I saw him later in Yellowknife from a distance. He was wearing a new leather jacket, his face was full, and he was walking with purpose. He looked very well and I knew he was getting back to being the person he was meant to be.

As a final example, I acted for a survivor from Inuvik who had a very modest claim and received a very modest award. I met up with him after he received his award, and he told me he had bought a new bed and a TV. He said he'd never slept in a comfortable bed or had a TV before. These modest purchases brought a lot of joy to him and his wife.

These are all examples that demonstrate how people are treated in the legal process can make a real human difference. As a judge, I've had the opportunity to interact with lots of Indigenous people, in family, child protection, and criminal matters. I think it matters that I speak to them in a meaningful way, empathize with the things they've been through, understand the traumas that have affected their lives, and reflect their experiences in the judgments I’ve had a chance to write. I’ve heard from some of these people about how my words have made a difference to them and I know it’s the same for my judicial colleagues who take such care in their interactions with everyone who appears before them. That’s a big change compared to the way many Indigenous litigants were treated in the not-too-distant past. 

There are many success stories. We need to build on these successes by being open to changing processes for Indigenous people and other litigants. Restorative justice principles are consistent with the values of Indigenous communities, and there are all kinds of disputes, particularly certain types of criminal and family disputes, that could benefit from a less adversarial, more restorative approach. We have a fantastic justice system. Part of what makes our justice system great is that it is continually improving and evolving. Lots of problems remain but the last 25 years demonstrate that we can and should try to make a difference.