Honourable Francesca Marzari'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 Francesca Marzari.

Questionnaire for Judicial Appointment

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Part 5 - Language

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

Without further training, are you able to read and understand court materials in:

• English: Yes
• French: Yes

Without further training, are you able to discuss legal matters with your colleagues in:

• English: Yes
• French: No

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

• English: Yes
• French: No

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

• English: Yes
• French: No

Part 6 - Education

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

• UBC School of Law, 1994-1997, Bachelor of Law
• Reed College, Portland Oregon, 1989-1993, Bachelor of Arts
• Sir Winston Churchill Secondary, Vancouver BC, 1987-1989, International Baccalaureate Diploma

Continuing Education:

• Numerous CLE, PBLI and subsection meetings

Honours and Awards:

• UBC Law:
  • John H Mitchell Memorial Scholarship (Sherwood Lett) 1997, UBC
  • Wesbrook Scholar, 1996
  • Peter Howard Memorial Scholarship, 1996
  • Prize in Legal Institutions of Canadian Government, 1995
  • McCarthy Tetrault Prize in Property, 1995
  • Law Foundation of BC Entrance Scholarship, 1994
• Reed College:
  • Phi Beta Kappa
  • 1991 & 1992 Pearson Scholarship
  • 1990 Howard Vollum Scholarship
  • Award of Academic Excellence in History and Social Sciences 1990-1993

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:

• Young Anderson (formerly Lidstone Young Anderson) 1998-present
  • Articled student 1998-1999, Associate 1999-2009, Partner, 2010-present
  • Local Government Law Boutique
• BC Court of Appeal, Law Clerk to Southin and Rowles JJA, 1997-1998
• BC Supreme Court, Law Clerk (secondment), summer 1998
• Research and Writing Assistant, Human Rights in the European Union, University of Copenhagen, 1997
• Summer Research Student, UBC Law, Dean Lynn Smith and Prof Liz Edinger, 1996
• Summer Research Student, West Coast LEAF, 1995

Non-Legal Work Experience:

• Crosbie Communications, Toronto Ontario 1993-1994
  • Communications consultant and assistant, largely working for Ontario Royal Commission on Learning, Hudson Bay Project, and land use related clients
• Youth Summer Program Coordinator, Britannia Community Centre, Vancouver BC, summer 1994
• Research Student, Sociology Department, Reed College, Portland Oregon, 1992-1993
• Kaboodles Toy Store, Vancouver, BC, 1987-1992

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.

CBABC:

Member of following subsections: Municipal Law, Administrative Law, Constitutional, Women Lawyers Forum, Freedom of information and Privacy, Appellate Advocacy

Pro Bono Activities:

West Coast LEAF

• President 2013-2015
• Vice President 2011-2013
• Chair of Legal Committee 2002-2011
• Board Member 2002-2004, 2006-2015
• Member of Legal Committee, 1999-present
• Chair of numerous case committees

Pro bono counsel for WCL: Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, and Vilardel v. Dunham, 2013 BCCA 65, establishing a constitutional right to access to the courts

Teaching and Continuing Education:

List all legal or judicial educational organizations and activities you have been involved with (e.g. teaching course at a law faculty, bar association, National Judicial Institute, or the Canadian Institute for the Administration of Justice).

Guest Lecturer:

• UBC Law School, Municipal Law Course, (Torts) 2002-present
• Capilano College Municipal Governance Certificate Program (Torts) 2004-present

Speaker:

• International Municipal Lawyers Association Annual Conference, Las Vegas, 2015 (Division of Powers and Canada Post)
• International Municipal Lawyers Association Annual Conference, Austin, Texas, 2012 (Business License Regulation)
• CBA National Conference, Saskatoon, Saskatchewan, 2014, (Conflict of interest)
• CBA L@W Series National Webinar: Planes, Trains, and Municipal Pains 2014
• CLE Municipal Law Conference Speaker October 2014, "Local Governments and Navigable Waters: Getting our Feet Wet"
• PBLI Conferences: 2008 Infrastructure Liability; 2009 Abuse of Office; 2010 Defence Best Practices; 2015 Navigable Waters
• Various Municipal Law Subsection Meetings (division of powers, conflict of interest, business licensing)

Community and Civic Activities:

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

[...]

• West Coast LEAF 1999-present (see above pro bono activities)
• Chairperson, UBC Law Faculty Council Student Caucus, 1995-1996

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?

Is the right to access the civil courts protected and enshrined in Canada's Constitution, and how do we address the current and historical exclusion of women and others from access to the civil and family law courts? Those were the key issues in West Coast LEAF's intervention in Vilardell v. Dunham, 2013 BCCA 65, which was ultimately heard by the Supreme Court of Canada as Trial Lawyers Association of BC v. British Columbia (Attorney General), 2014 SCC 59.

While the case itself was about the constitutionality of BC's hearing fees for civil and family law trials, it engaged the much broader issue of access to the justice system.

For women, access to the courts means access to the body of family law that is the culmination of 100 years of the advancement of their rights in marriage and after marriage breakdown. It is also a right that, at common law, and at the time of confederation, was denied most married women. Access to the courts continues to be critical for all of us, but particularly for those who cannot by wealth, strength, or other privilege otherwise assert their rights. It is also increasingly elusive as legal costs increase.

The Attorney General for BC argued that there is no need for a constitutionally enshrined right of access to the court system, and that the daily hearing fees were intended to create greater access to the courts by encouraging parties to ration their court time. On behalf of West Coast LEAF I argued that to the extent that the fees were creating efficiencies, those efficiencies were effective only against those who could not afford the fees, and so created an unequal burden to accessing the courts.

Leaving the Supreme Court of Canada the day we argued the case, my taxi driver asked me what the case was about, and I explained that in BC (and much of Canada) if you want to have your rights determined in a court, you have to pay fees for your time in the courtroom. As a recent immigrant to Canada, he was surprised to hear this. He had thought that Canada was a place where anyone could have access to the courts to seek and obtain justice without fees to discourage them. It made me appreciate all the more how fortunate Canada is to have its civil justice system, and the importance of ensuring access to it.

Being part of this case where the Supreme Court of Canada determined that access to the courts is constitutionally enshrined, and recognized that financial barriers to access do not affect all people equally, was immensely rewarding. The fact that BC has now introduced a reasonable hardship test for civil law hearing fees, and not re-introduced hearing fees for family law cases at all, gives me great satisfaction that one small barrier to accessing the courts has been addressed.

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

Both my municipal law practice and my pro bono work for West Coast LEAF have taught me a great deal about the diversity of Canadians and their unique perspectives.

Local governments are remarkable in their responsiveness to their constituents. Working for them, one quickly learns the diversity of perspectives on a single issue, and how very different solutions can serve the best interests of individuals and communities.

For example, the needs of rural communities, and the solutions they require, are often very different from those of urban communities. The perspectives they bring to the problems they face are also very different.

My practice of municipal law has involved learning how to listen closely to the needs of diverse communities and individuals. It also often has meant assisting my clients and their constituents to have respectful and thoughtful conversations across their differences.

My pro bono work for West Coast LEAF has given me greater insight into the experiences of the disenfranchised. In that capacity, I have worked with advocates for women, immigrants, First Nations, the LGBTQ2 community, and the disabled in relation to housing issues, family law issues, and access to justice, among other things. For example, in Canada (AG) v. Downtown Eastside Sex Workers United Against Violence Society, 2010 BCCA 439; affirmed 2012 SCC 45, I was part of the team (although not counsel) that developed the ultimately successful arguments we made at the BC Court of Appeal and the Supreme Court of Canada that the test for public interest standing had to appreciate the lived experiences of the women engaged in sex work in Vancouver's downtown eastside.

On a more personal note, I was raised by a single mother for many years. She had the support of a broad community of friends and mentors like Rosemary Brown, Shirley Chan, and Patsy George. All of these amazing women enriched my life and upbringing.

Overall, I have both a strong theoretical understanding of the law and how it relates to a broad diversity of people and their lived experiences, as well as practical experience in engaging with that diversity.

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

The civil and criminal justice system are cornerstones of our constitutional democracy. The role of the judge in this context is manifold.

In my municipal practice, the role of the judge has been to both to give effect to the law, and to provide an important check on government, ensuring that government decision makers and legislators are acting within their authority, fairly, and reasonably, and with respect for the Charter. In the context of the Constitution Act, judges do this through judicial review of administrative decision making, with deference to the fact that often the individual case before the court is only a slice of the broader policy issues that these decision makers are often addressing. Judges also maintain the structure of our Constitution in terms of the division of powers. Finally, they ensure that our most fundamental values, as expressed in the Charter of Rights and Freedoms, are respected in government decision making.

In the context of the criminal law, judges are engaged with the state in one of its most powerful forms and are charged with safeguarding both the public and our Charter values. Judges are therefore responsible for the integrity of our criminal justice system, both in terms of its respect for the law and its respect for its participants (both the accused and those affected by criminal acts).

With respect to the civil law in British Columbia, the role of judges is to apply civil statutes and develop the common law. The common law is always evolving and requires attention to both its greater elaboration, and to its application in each case. We all are the beneficiaries of individuals who willingly submit their private disputes to the adjudication of our civil courts, and allow the common law to continue to develop in response to the current needs and realities of our communities. Above all, we benefit from knowing that there is a fair place for private disputes to be resolved, ideally without abuse of privilege or advantage.

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

The first audience of a court decision are the parties in the case. They are seeking justice with respect to their individual circumstances.

The second audience of a court is the bench and bar, who will be guided by the decision made in one case in the future application of the law in other cases. Many of these future cases may be resolved without the need for a court adjudication, or greatly simplified, as a result of clear and compelling decision making upon which others can rely.

Legislative and administrative decision makers are another audience. Court orders and reasons for judgement may directly or indirectly influence their choices.

Finally, members of the public are an important audience, and in the local government cases I am involved with they are often a primary audience. Language that is accessible to the broader public can greatly assist all of us to understand the reasoning behind a decision, be guided by the law, and understand how justice is served in each case.

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

My interest in the law, and the bench, probably started with the appointment of Bertha Wilson to the Supreme Court of Canada in 1982. This is not to say I always, or even specifically, wanted to be a lawyer. I entered law school because I saw knowledge of the law as an essential tool in the pursuit of a fair and just society. I thought I might be a professor like my father had been (and my new dad was), but while clerking and articling, I was called by the real world problem solving of the practice of law.

My mother was a trailblazer, taking on her employer (the City of Vancouver) and uniting with the community that she had been hired to relocate (Strathcona) to stop a major highway project through Chinatown in the heart of Vancouver. As a single mother she ran for City Council when I was a year old, and I grew up very much aware of the responsibility of those in public service to listen to people and to use their authority to solve individual problems while keeping their eye on the big picture.

Undoubtedly, this is also why I grew up believing that healthy communities were the key to a healthy democracy.

By nature, I am drawn to the larger implication, the greater story. However, it has also been my experience that only by examining the particulars of the individual case that the true picture can emerge.

Local government is the same; the problems that small communities face are no less complex or significant for their local nature, and often getting the best solution for one small community makes an enormous difference for many communities and the people they serve if done well. Local government is often the place where the rubber hits the road for questions like how do we secure a vibrant downtown core, access to safe housing, secure infrastructure, and the integrity of our democratic institutions. My practice affects all of these areas, without losing sight of the individuals that are affected.

Municipal law has satisfied my intellectual curiosity in a technically demanding area of administrative law, while also allowing me to have a very broad practice that includes constitutional law (both the division of powers and Charter and human rights) as well as torts, contracts, property, quasi-criminal enforcements, First Nations, and environmental law. Recently, when I was feeling that even this extensive practice was beginning to feel too familiar and I was wishing for something new and challenging, I found myself in a commercial insolvency proceeding demonstrating that a heritage property was charitable trust property. Local governments are responsive and innovative, and constantly introducing me to new areas of the law as a result.

Local governments in BC are also incredibly diverse. Some communities want development to spur their economy, others want to facilitate the extraction of resources, while others want to preserve as much of their natural landscape as possible. A vibrant local democracy ensures that communities are able to choose what they want, making it easy to respect these choices in all their diversity.

Local government is the most accessible level of government for many. The practice of litigation on behalf of local governments also means a significant engagement with unrepresented litigants. Working with lay litigants has demanded a high level of integrity, patience and the ability to step back and understand the underlying issues affecting them.

As counsel for local governments, I am counsel for an administrative and legislative decision maker. When the decision to be made is a legislative one, I advise on legislative tools and the legal boundaries of jurisdiction. When the decision is administrative or quasi-judicial in nature, my role is to set out a procedurally fair process, assist with addressing objections and procedural missteps, and maintain the integrity and fairness of the process. Also, similar to when I was a law clerk, I will frequently assist with the preparation of written reasons for administrative decisions. My level of assistance in this regard depends on the decision maker and the difficulty of the issues, and the details of my assistance in the writing of these decisions remain privileged.

As a law clerk to Madam Justices Southin and Rowles in 1997 and 1998, I learned a great deal. From Madam Justice Southin I learned the importance of history, analytical rigor, and diligence. From Madam Justice Rowles, I came to understand how to approach each case with an open and fair mind, that there are compelling stories to both sides of most cases, and that the decision that must be made is rarely easy but is always important.

In practice, I have learned that civility and integrity will get you much further than cheap advantage. Without civility, honesty, and integrity I would not only be a less effective advocate, I would not enjoy the practice of law. The municipal bar is not a large one, and respecting and having the respect of others is essential to both resolving litigious disputes, and litigating them. Even with unrepresented litigants (common in municipal law) creating a respectful flow of communication increases the overall chance of a lasting resolution.

My work with West Coast LEAF has also exposed me to the one area of law that local governments do not require: family law. It was as pro bono counsel for the intervenor West Coast LEAF that I argued Vilardell v. Dunham (see above), a family law case at the BC Court of Appeal regarding the constitutionality of court hearing fees in family law cases, and other cases, where the parties are of moderate income. I was still counsel on that case when we intervened at the Supreme Court of Canada, though it was then known as TLABC v. British Columbia. While I don't pretend to "know" family law, my involvement with West Coast LEAF over nearly 20 years has exposed me to many of the issues and cases that matter most to women in the advancement of the law in this area. More than anything else, this work has shown me that all developments in the law must understand and take into account the lived experiences of those who are entitled to access the justice system, and just how important the family law system can be to the improvement of individual lives.

Overall, my practice has taught me to listen to my clients, my colleagues, opposing counsel, and the court. Listening is the only way to reveal the underlying concerns at the heart of any legal conflict or problem and to communicate and resolve them. Listening, together with the application of analytical rigor to every problem, keeps me honest. Compassion keeps me focused on what is just. Being able to convince the court of what is just in each case has ultimately been the basis for my success.

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.

My mother tells me that when I was two years old, I sat on her lap in the Vancouver City Hall Council chambers and demanded to know "Where are all the other mommies around here?!" I like to think this was the beginning of my engagement with the representation of women and minorities in the institutions of our democracy.

It is often said, and I agree, that Canadians will have greater confidence in our justice system if we can see that those making the decisions include people who look like us. But, as Bertha Wilson wrote years ago, the appointment of women to the bench (and of so many others who are under-represented) may mean more than just providing a visual assurance that justice is for everyone.

The institutions of our democracy need to reflect the life experiences of all of their constituents. I don't subscribe to the view that women and men think in a fundamentally different way; however, there is no question that our perspectives are affected by our gender and life experiences in subtle but important ways. These life experiences inevitably inform our judgments about others, including critical considerations like their credibility and the plausibility of their stories.

For example, even as a woman who has benefited from fitting prevalent ideas of who is fit to participate in society (I am white, able-bodied, analytically minded, verbally-inclined), I also carry with me the knowledge of my physical vulnerability to violence. I understand how women negotiate their day to day existence in the presence of this threat. This is just one example, and gender is only one constituent of diversity on the bench.