Ontario Superior Court Justice Cynthia Petersen took an unusual path to the bench, moving from academia to legal practice to the court. Along the way she made a name for herself doing public interest litigation for LGBT communities. She sat down recently for an interview with OBA student member Natasha Yard, talking about what took her to the bench, and what she found once she got there. She also has some advice for litigators.
NY: Take me through your career to date – how did you get to this point?
JCP: I started my legal career as an academic at the University of Ottawa on the Faculty of Law. I did not take the traditional route of getting licensed by doing my articles then writing the bar exam. I spent five years teaching at the University of Ottawa and qualified for an academic call to the bar. I then went into private practice at Sack Goldblatt Mitchell – now Goldblatt Partners LLP – in Toronto and was there for 22 years before I was appointed to the bench. About half of my practice there was in labour law on the union side. The other half of my practice included constitutional appellate litigation, workplace investigations, and a lot of training and policy work. For last 15 years of my practice, I was the Discrimination and Harassment counsel for the Law Society as well.
NY: Before being appointed to the Ontario Superior Court of Justice, you advocated for LGBT communities. What was most rewarding for you as a litigator? What was most challenging?
JCP: It was rewarding to see that the work I was doing with others – it was always a coalition effort – was actually changing the social and legal landscape in Canada. There was a decade and a half of public interest litigation on behalf of the broader LGBT communities, the result of which had a direct impact on the evolution of Canadian law. A lot of lawyers do important public interest litigation without that reward because the courts are not always an appropriate venue to achieve social change. But LGBT communities were quite successful in litigation.
I think what was most challenging was trying to provide a voice to marginalized people in court. I had the privilege of representing a variety of individual clients in litigation and I was always conscious of the responsibility I had to be their voice. I wanted to honour them and their perspectives in the manner that I framed the legal arguments, so that they would feel heard. Sometimes I personally shared their experiences and perspectives and other times I didn't. For example, as a cis-gendered woman, I represented numerous trans-identified clients in a variety of different cases. I did not share their experience, so it was a challenge for me to make submissions that would feel authentic to them. Trying to fully understand my client’s perspective and convey that to the court was a huge responsibility.
NY: In your years as a litigator, who had the biggest influence on you and why?
JCP: That’s a good question. There have been many people who influenced me – many of my clients, in particular, were inspiring. If I had to identify just one individual, I would say Peter Cory, the former Supreme Court Justice. As a judge, he did not hesitate to demonstrate compassion for the parties who appeared before him in court. He is also a great intellectual and wrote many significant judgments, but I was most inspired and influenced by his compassion. I had the privilege of appearing before him on many occasions in the Supreme Court.
NY: Why did you become a judge?
JCP: I had been a strong vocal advocate on social justice issues for a long time, but my practice was shifting toward less adversarial work over time. I was conducting harassment investigations and mediations. I was doing more work in a neutral capacity rather than advocating for one side and I found that I was really enjoying it. It may have been a function of age. I was at that stage of my life and my career where I was enjoying helping people solve their problems from a more impartial or objective standpoint. It was a natural segue to go to the bench. And I think I needed a change. I loved my job, but I did it for 22 years and I was ready to try something different.
NY: What has surprised you most about life on the bench?
JCP: A few things. First, how much I enjoy every single area of the law in which I am required to adjudicate. There are areas of law in which I never had any interest to practice, but I’m very much enjoying judging in those areas. I sit in Brampton, which is a generalist court. We hear everything – condominium disputes, construction liens, mortgage disputes, family law matters, criminal cases, motor vehicle accident claims, and a wide range of other matters. I find it all intellectually stimulating. Also, I was surprised by the tremendous collegiality in the judiciary. Lawyers often have the impression that working as a judge is solitary, and I suppose it may be for judges in small centres, but the region in which I have been appointed is extremely collegial. That has been a delightful surprise to me.
NY: How would you describe yourself in one word / a few words?
JCP: Hmm, I can’t come up with one word, but I have three words. For my 50th birthday, which was a few years ago, my sister emailed a bunch of my friends and colleagues and asked them to describe me in three words. She then used some algorithm to create a poster on which the words most often used to describe me are in larger, bolder font. The three most common words on it are adventurous, generous and compassionate. I think those are accurate descriptors, but I also have a lot of faults, which I am not going to mention in this interview! I’m an intrepid traveler, and a bit of risk-taker in my personal life, which is likely why people describe me as adventurous. I suppose it’s also a bit adventurous to keep changing career paths, going from academia to practice to the judiciary – always trying something new.
NY: What is something people appearing before you should never do?
JCP: First, most importantly, never misrepresent anything to the court. Whether there are facts in the case not helpful to your argument or evidence you wish didn’t exist, or a case from the Court of Appeal that doesn’t help your argument … there is no point concealing that from the court because the judge will find out and your integrity will then be questioned by the bench. That kind of advocacy negatively affects a lawyer for years, if not their whole career – not just in that one case they argue. The judge will remember. Another faux-pas is to be unprepared or under-prepared. By the time a case gets before the court, the lawyers should know the file inside out. Err on the side of over-preparing. Third, don’t speak to the opposing counsel in open court. You should always address the judge. Lawyers who end up in a debate in the courtroom are never appreciated. Finally, don’t be rude to the courthouse staff. They provide an invaluable service to the public and judiciary.
NY: What is the one piece of advice you would impart to law students and young lawyers?
JCP: Generally, always keep an open mind to new opportunities. My career unfolded in a way I could never have predicted. I didn’t think I was going to be an academic when I first went to law school – I thought I was going to be a Crown prosecutor. Once I went into academia, I loved it so much I didn’t think I would ever leave, but I ended up in private practice for 22 years. I didn’t have a lifelong ambition of becoming a judge but, lo and behold, here I am. People sometimes have a narrow view of what they will do with their law degree. If it doesn’t turn out to be what they love, they feel stuck. They think, “Well this is it. I’m a real estate lawyer or I’m a criminal lawyer.” A law degree can be used in many flexible ways. It creates different opportunities. People should be open to that. I’ve spoken to many law students who feel stressed about choosing the area of law they will practice in. Some young lawyers feel worried that they’ve made the wrong decision. My advice is: Change! Start over. Some people will say you must take all the right courses in law school and choose your career path early and stick with it. I am of the view that you don’t need to do that. You can start again if you make a false start – starting over is hard, but it can make for an enriching experience.
NY: If you could change one thing about the practise of law or the judicial system in Canada, what would it be?
JCP: Access to justice. This is the biggest challenge at the moment. The profession must change to make it happen. Billing practices must change. The cost of legal services is prohibitive. We have way too many people who are self-representing in the courts. Many litigants start off with a lawyer initially but end up self-represented because they have run out of money. Some cannot afford a lawyer in the first place. The profession needs to find new ways to offer affordable services, like unbundled and limited retainers. Legal Aid needs to change its funding criteria. The profession needs to promote mediation and resolution to avoid litigation where possible. And the Courts can play their part as well. There have been some significant changes to Rules of Procedure to expedite the resolution of claims and promote pre-trial settlement, but the justice system could still do more to adopt rules and practice guidelines that streamline litigation. Quite a bit of change needs to happen, all of it with the goal of increasing access to justice.
Natasha Yard is an articling student at TD Bank Group and student member of SOGIC