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 Wendy A. Baker.
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 British Columbia, Bachelor of Arts (Hon. English), 1982-1987
- University of Victoria, LLB 1989-1992
Honours and Awards:
- Received Queen’s Counsel in 2009
- Advocate’s Prize for Legal Writing, 1992
- Benchmark Canada, Litigation Star: Aboriginal, Construction, General Commercial, 2017
- The Best Lawyers in Canada, Aboriginal Law; Administrative and Public Law; Construction Law, 2016 -2017
- Canadian Legal Lexpert Directory, Aboriginal Law, 2013-2017
- BV Martindale-Hubbell Distinguished lawyer rating
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:
- Partner, Miller Thomson, LLP, (2001 to present)
- Cohen Commission of Inquiry (December 2009 – October 2012)
- Roberts & Baker (Roberts & Griffin; Roberts, Muir & Griffin) (1993-2001)
Non-Legal Work Experience:
- Computer programmer – University of Ottawa, Co-operative Education Programme (1987-1989)
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.
- Member, Law Society of British Columbia
- Member, Canadian Bar Association
- Member, Trial Lawyers Association of BC
- Trial Lawyers Association of BC – Women Trial Lawyers’ Retreat, planning committee 2008 -2017
- West Coast Environmental Law Association (Board member 2000-2009, Treasurer 2001-2006, President 2006 to 2008, Past-President 2008-2009)
- Motor Deal Compensation Fund Board, May 2014 – present; Vice Chair 2016-present
Pro Bono Activities:
For many years I was on the board of West Coast Environmental Law Association, and in that role participated in law reform activities. I also took on appeals for non-profit groups at a heavily discounted rate through the West Coast Environmental Law Dispute Resolution Fund.
I provide ad hoc legal advice to members of the public requiring summary advice.
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).
Faculty -National Judicial Institute – Canada/China Judicial Linkages Project – Civil Evidence Workshop, 2006
- “Commercial Real Estate Disputes,” BC CLE course: Business Disputes, 2016
- ”You Can’t Do That -Really! Not So Obvious Ethical Issues”, BC CLE webinar, 2016
- ”Corporate and Partnership Remedies,” TLABC seminar: Ending Commercial Relationships – Constructive Options for Litigators Whose Clients Want Out, 2014
- “Expert Evidence,” BC CLE course, 2013
- “The Role of Scientific and Traditional Knowledge in the Development and Application of Environmental Law and Policy,” Pacific Business and Law Institute conference: Aboriginal Rights to Fish & Environmental Law, 2013
- “Negotiation: Top 10 Tips for Women, CBABC forum: Power Negotiation and Communication Strategies for Women Lawyers,” 2012
- ”Resolution of Construction Disputes,” BC CLE course: Construction Law, 2010
- BC CLE – CLETV Fall 2009 – Conflicts – Issues and Resolutions for Big and Small Firms
- “Self-Help Remedies,” BC CLE course: Construction Law, 2009
- “Pre-Negotiation Strategy in Multiparty Litigation,” BC CLE course: Let’s Talk Construction Law, 2008
- BC CLE – Construction Law 2008, speaker -“Settlements and Negotiations”
- BC CLE – Expert Evidence 2006, panel member -“Utilization of Experts”
- “Work Life Balance”, Women Trial Lawyers’ Retreat, TLABC, October 2007
- BC CLE – Aboriginal Law and Natural Resource Use 2005, speaker -“Mining and Meaningful Engagement”
- “Organics and Regulated Marketing”, University of Victoria conference, September 2004
- “The Case against Municipalities -the Post Delta Blues”, Pushing the Envelope: the State of Leaky Building Litigation, Pacific Business & Law Institute, October 2003
- “BC Directors’ and Officers’ Liability: Class Actions”, Lorman Education Conference, November, 2001
- “Overview of Water Law in BC”, Water Forum, Insight, November 2001
- “BC Directors’ and Officers’ Liability: Class Actions”, Lorman Education Conference, November, 2000
- “Emerging Trends in Toxic Tort Litigation”, The Changing Face of Environmental Law & Regulation in B.C., Canadian Institute, April 1996
Community and Civic Activities:
List all organizations of which you are a member and any offices held with dates.
- Trial Lawyers Association of BC – Women Trial Lawyers’ Retreat, (planning committee 2008 to present; Co-Chair 2009-present)
- Karen Jamieson Dance Society, (1998 to present; Chair for approximately 15 years)
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 believe my most significant contributions to the law in Canada have come in the development of creative ways to design hearings, to explore new ways to bring forward evidence and reach decisions on complex matters. The two experiences I will refer to in particular are the Cohen Commission and the Stk’emlupsemc te Secwepemc Nation Ajax mine review.
From 2009 to 2012 I was counsel to the Cohen Commission. In this Commission we were faced with an enormous scope of work, countless witness, detailed scientific evidence, and 54 participant groups who applied for standing. We had to find a way to process all the information needed to perform our task, and developed a number of unique features. We were able to negotiate the 54 participants into 21 groups. We called evidence from witnesses in panels of three or four people. This allowed us to cover all perspectives on a topic at once, and allowed the witnesses to debate their perspectives before the Commissioner, to a limited degree. While unconventional, this did allow the witnesses, particularly expert witnesses, to clarify points of agreement and disagreement, and made the fact finding exercise more full and efficient. We called evidence from remote locations using Skype. We received submissions from members of the public directly through our website. All of the hearing was conducted electronically, including all documents in the hearing were presented electronically and entered as exhibits electronically. The hearing was videotaped. We wanted to ensure the process was as transparent as possible, and uploaded all rulings, exhibits and transcripts to the website as the hearing progressed.
In 2016-2017 I worked with the Stk’emlupsemc te Secwepemc Nation to develop the first Indigenous led environmental assessment process in the country. I drew on my experience with the Cohen Commission to allow us to process an enormous amount of evidence in a compressed time frame. We called evidence from Indigenous knowledge keepers and traditional Western scientists. We called evidence with people presenting in panels comprised of people with differing perspectives. The decision making panel was comprised of 46 members of the Nation: representatives selected by all the families, the Chiefs and Councils of the First Nations governments which made up the Stk’emlupsemc te Secwepemc Nation, and youth and elder representatives. The hearing was held out of doors over one week. The deliberations took almost 10 months. The hearing panel produced a report setting out its assessment of the evidence and a report setting out its recommendations. The Joint Council of the Stk’emlupsemc te Secwepemc Nation issued its decision following receipt of the panel recommendations.
I believe these two processes are related, and represent the most significant contribution I have made to the law and pursuit of justice in Canada. A large part of justice is the process of justice. Both of these processes represented respectful and open minded responses to the questions posed to them. The processes we developed were not bound to rigid rules, but rather reflected the tasks at hand, and the unique fact finding missions of both, while at the same time reflecting fairness and respect for the laws under which we operate.
In the Cohen Commission we were tasked to complete our work “without seeking to find fault”. This mandate was particularly challenging given that theories as to the decline of sockeye salmon included causes as wide ranging as mismanagement by DFO, over fishing by First Nations, over fishing by commercial fishers, predation by seals and other wildlife, fish farms, climate change, over fishing in international waters, and destruction of spawning areas. We had participants who were wildly opposed to each other, and we had an enormous amount of highly technical information to understand. Managing all the competing interests, assisting the Commissioner in understanding the highly technical scientific information required to complete the work, and completing the report in a timely way, all presented enormous challenges to the entire commission team. However, we were fortunate to have an extremely talented, and a very thoughtful and patient Commissioner who was determined to complete the task respectfully, thoroughly and within the strict terms of his mandate. The process was managed in a cooperative and respectful way, and we received many very favorable comments from the counsel appearing at the commission to the effect that this commission was a model of how a commission of inquiry should be run.
In the SSN Ajax mine review I was privileged to work with a First Nation exercising its right to govern its territory, and to determine land use objectives for important areas in its territory which were consistent with its self-determination and traditional governance. This process was extremely empowering for the SSN and demonstrated that there are ways of making complicated assessment decisions which do not follow the traditional Canadian model. It gave me firsthand experience working with knowledge keepers and decision makers from a vibrant Indigenous culture, and ensuring that their voices were heard and fully expressed in the process and decision documents. It was a transformative experience and is being held up as an example of how decisions affecting the environment and First Nations can be better made. It has been looked at by other First Nations as a model, and has informed proposed revisions to the Canadian environmental assessment process.
2. How has your experience provided you with insight into the variety and diversity of Canadians and their unique perspectives?
I have represented people from all walks of life in my diverse practice. I have represented farmers and processors in the supply managed sectors, First Nations and Indigenous peoples across BC, business people in large and small corporate disputes, regulatory agencies, a divorcing spouse, estates and beneficiaries of estates, public interest environmental groups, resource companies, class action members, oppressed shareholders, design professionals, builders, strata corporations, and people in small and large private disputes.
I have worked on disputes of all kinds: pricing disputes in the regulated marketing sectors, disputes over the use of regulatory powers of all kinds, environmental disputes including air pollution, water pollution and contaminated sites, business disputes resolved before the courts and privately, construction disputes, wills and estates disputes, land claim disputes, disputes over First Nations governance, maritime disputes, and insurance cases.
I have been commission counsel, and an adjudicator.
Because my practice has been so far ranging, I have encountered a wide variety of industries, issues, and people. I have worked with unrepresented people, with people from Indigenous cultures and with people from outside Canada. I have worked with people from urban environments, and many people from the small communities in our province.
I have also been a leader in advancing women in my law firm and the profession.
Since 2008 I have been a co-chair of the planning committee of the TLABC women lawyers retreat. In 2017 the National Association of Trial Lawyer Executives (NATLE) awarded TLABC its second annual Award of CLE of the Year for the Annual Women Lawyers Retreat. In addition, in 2017 the International Association for Continuing Legal Education (ACLEA) awarded TLABC the award for Outstanding Achievement for the Annual Women Lawyers Retreat. The significance of this retreat is it is focused on women in the profession – it allows women lawyers to meet others in the profession, gain some continuing education from courses put on by women in the profession, and relax with each other in a way women respond to. We have been able to get amazing speakers, including the Honourable Louise Arbour, Madam Justice Suzanne Côté, and many other judges from courts in BC and other jurisdictions. We provide bursaries for women who cannot afford to come on their own. The program is so successful that we have been selling in one day for a number of years, and this year we sold out in 15 minutes.
I am the head of litigation in the Vancouver office of Miller Thomson. I have built an amazingly strong group of women litigators in the Vancouver office. Right now, the majority of the litigators are women (15 out of 27). The largest group within our litigation group is commercial litigation, and the women in this group outnumber the men 13 to 9. This makes our office very unique in the legal market. I know that having such a high percentage of women in this group means that they get all the same opportunities as the men, and importantly the young women have strong role models to encourage them to stay in the profession. Our numbers include several LGBTQ people, and I have supported them in taking on strong leadership roles in our firm and ensuring that they are part of the most challenging cases we have.
I was a member of the Law Society’s Justicia committee for a number of years, and continue to sit as a member of my firm’s Inclusion and Diversity Committee.
I have supported the hiring of lndigenous lawyers at Miller Thomson. We now have three practicing lawyers who are Indigenous, and a number of Indigenous law students articling with the firm. I believe that it is important to have the perspectives of Indigenous people in the legal system, and have supported the meaningful inclusion of lndigenous lawyers wherever possible.
I am a parent to two grown children, and I worked full time throughout their childhoods. I know the challenges of being a working parent. I know what it is like to be so distracted with day care drop offs that I came to work with two different shoes and/or spit up on my suit. I know what it is like to watch the countdown to the last minute the daycare is open. I know what it is like to put the children to bed and then start working again until the wee hours. I am sympathetic to the struggles of being a parent.
My husband and I also have acted as foster parents to our nieces and nephews, and as a result have seen the child protection system first hand. This also has given me a window into the experiences of people faced with extreme challenges in their lives.
3. Describe the appropriate role of a judge in a constitutional democracy.
In our constitutional democracy, the courts have an important role. While our elected officials are charged with creating and amending laws, it is the courts that must interpret and apply those laws. Fundamental is the role of the court to ensure that laws are consistent with the Constitution and the Charter.
The Constitution and the Charter are foundational and cannot be easily changed. They define the rights and obligations of the levels of government, and the rights of citizens in our country. The courts provide an avenue for any person in Canada to ensure that their government is operating in a way consistent with these foundational documents.
Judges have an important role in ensuring governments and legislative bodies in our constitutional democracy operate within their constitutional powers, consistent with the Constitution and Charter of Rights and Freedoms. Judges in this way act as an important check and balance on the operation of government. Judges have a distinct role in ensuring that the rights and freedoms guaranteed to all Canadians are protected and upheld, subject only to s. 1 of the Charter. While governments are elected by a majority of citizens, the role of the courts is to ensure that justice and the rule of law is enforced equitably for all, not just the majority.
An example of the important role of the judiciary can be seen in the development of the Charter jurisprudence. The courts were charged with giving real meaning to this important document. The exchange between the courts, our society, and our governments as Canada grew to know, understand, and rely on the Charter is a classic example of the iterative role the courts have in interpreting our laws.
The independence of the judiciary allows judges to be neutral and non-partisan in assessing the constitutionality of government action. This is a critical role in what can be a very political environment in which we live. It is important to have a judiciary that can assess government actions and positions in a neutral way, and a way which follows closely the laws as they have developed over time. The courts provide certainty in times of upheaval, and as such are a fundamental cornerstone of our constitutional democracy. This is not to say the courts are entitled to dictate government policy. Clearly this is not the case. But the courts provide certainty to citizens, ensuring that all laws are enacted legally and through proper process.
A fair and legal process is another cornerstone of our democracy which is protected by the courts. For citizens to have confidence in governmental decision making, they must be assured that a fair process has been followed by government. The courts have an important role in deciding questions of fair legal process. It is important to our democracy that citizens can come before an impartial court to test the fairness and legality of the decision making process followed by government actors. While the courts do not exist to pass judgment on the merits of a government policy, the courts do ensure that the process used in decision making was fair. This provides an important check against unilateral acts which may not otherwise be authorized by law.
Finally, the role of the judge is to interpret and apply the law, as it is written and as it develops over time. Unless the legislature or Parliament has radically changed a law, the law evolves gradually over time as judges learn from each other, and societal norms gradually evolve.
4. Who is the audience for decisions rendered by the court(s) to which you are applying?
The audience for decisions of the BC Supreme Court is diverse.
First and foremost the primary audience for decisions of the Supreme Court are the litigants appearing before the court on the case. Many people do not have access to political decisions makers. The legislature and Parliament are remote places. However, the courts are local and accessible to all people. It is a place where people can go to access justice in a very tangible way. As such, the courts must strive to be accessible to all the litigants who come before them. This accessibility extends to the language of the decisions themselves.
The decisions must be accessible to the litigants before the courts, so that litigants have confidence that their issues received the court’s full consideration. This means that the decisions must be written in as clear and plain language as possible. In writing decisions for the Civil Resolution Tribunal, we are encouraged to write our decisions at a grade six level. This is actually very challenging. It is probably not possible or desirable to write at a grade six level for many complicated commercial cases. But most litigants would be served in a judge striving to keep the decision language at the most accessible level possible. The decisions must be respectful of the parties and the issues before them, as the courts have such a critical role in our society. In order for people to respect the decisions of the courts, the decisions must be clear and fair.
The next audience for decisions is the public at large. Decisions of the court may impact people beyond the immediate litigants. If the law is clarified or interpreted, it will (or may) affect the behavior of people impacted by that law. The public is especially interested in high profile cases, or cases that address legislation or governmental policies which affect many people across the province or the country. Impacts may be felt beyond the province in which the decision is rendered, as litigants in other provinces may advance a decision as persuasive in their case. In this sense, the courts in other provinces become part of the audience for decisions, as they can learn how other jurisdictions have interpreted the law and addressed legal issues. This is an important factor in the consistent and predictable development of the law in Canada.
Governments are audiences for court decisions. When a specific law is challenged, or government conduct is challenged, governments will pay particular attention. Governments will want to ensure their legislation is compliant with the law as interpreted by the court. Further, court challenges give important feedback to governments as to how their legislation and programs are working.
Members of the bar and academics are key audiences for decisions. Lawyers need to stay abreast of current decisions, to understand if changes have emerged, or if legal principles have been confirmed. The lawyers will then use decisions to guide their practices and advise their clients. Bar associations are also interested in the development of the law, and may engage in education or writing in reaction to specific decisions. Similarly, academics stay informed of new decisions. Decisions will become incorporated into their academic thinking, the subject of writing and analysis, and the subject of teaching materials to educate the new generation of lawyers. It is a very iterative process, as the legal analysis of academics will often inform submissions before the courts as advanced by the bar.
Finally, for a certain number of decisions of the Supreme Court, the Court of Appeal and possibly the Supreme Court of Canada will become an audience for the decisions. Where an appeal is taken, the audience is clear. However, the appeal courts may also be reading cases emerging from the lower courts to understanding how the law is developing, and to see if any divergence among decisions are emerging. All levels of court take an interest in the orderly development of the law, and in this way all appeal courts become an audience for the decisions of the trial court.
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 Cohen Commission gave me my first experience working with a decision maker. It allowed me a new perspective on the legal process. I found I really enjoyed being able to work on the process of decision making, and assisting the Commissioner in developing rules of process, drafting rules, and assisting in drafting his final report. Then beginning in 2013 I started acting as an adjudicator, and found I really enjoyed that as well. I enjoyed receiving evidence and arguments, and distilling everything down to the key issues. The industries which have come before me as an adjudicator with the Motor Vehicle Sales Authority and the Financial Services Tribunal were not industries I was previously familiar with. Nevertheless, I was able to quickly learn what was needed to understand the issues before me. These experiences have shown me that I have the skills and demeanor that will allow me to be a successful judge.
In my practice I have been involved in resolving commercial disputes of all kinds, including real estate disputes, construction disputes, disputes involving commercial agreements, commercial fraud, theft of corporate opportunities, corporate governance disputes, etc. I have experience in administrative law, both through my work on the Cohen Commission of Inquiry and also my work before and as a member of a number of tribunals in the province. Over the course of my career I have worked extensively in the area of regulated marketing, and have appeared countless times before the Farm Industry Review Board. I have been involved in judicial review proceedings and appeals from a number of lower tribunals. I have appeared before all levels of court in BC and federally. I have been fortunate to have a wide ranging practice and have enjoyed the challenge of learning new areas of law. Because I have had the opportunity to gain experience in a wide range of practice areas, I am confident that I can hear disputes across a wide spectrum and gain the insight needed to render fair judgments.
I am a person who has been recognized as possessing good judgment. During the Cohen Commission, Mr. Justice Cohen relied heavily on me in the calling of evidence, assisting in the preparation of portions of his report, assisting in the preparation of his rulings, participating in discussions, and standing in for the senior commission counsel on occasions when he was not available. In 2009 I was appointed Queen’s Counsel. I was invited to take on the role of Acting Registrar of the MVSA, and was given one of the most challenging cases in that role, which included a number of decisions, including deciding an application for recusal on the grounds of bias. I was invited to sit as a member of the Financial Services Tribunal, and the Civil Resolution Tribunal. These experiences have given me some skills in decision writing, and have given me a new appreciation of the role of adjudicator.
I was asked to become a partner in my former firm, Roberts & Baker after being called to the bar for 6 years. I was responsible for a large portion of managing the day to day operations of that firm. When we merged with Miller Thomson in 2001 I was asked to take on a number of national leadership roles. Over the course of my career with Miller Thomson I have been the leader of the commercial litigation group in Vancouver, a member of the firm’s national executive, a member of the firm’s compensation committee which sets compensation nationally for all partners, the leader of the national Agribusiness and Food Production group (a group which was created under my leadership), the leader of the national professional development committee (responsible for all associates in the firm), and a member of various national committees such as the knowledge management committee. I remain a leader of the Agribusiness group today, and am the head of litigation in the Vancouver office. All of the responsibilities I have been asked to take on demonstrate that the lawyers in my firm have confidence in my judgment and recognize me as someone who accomplishes the things she sets out to do. I do not shy away from difficult projects or decisions, and I am recognized as a key leader in the firm.
I am a very collegial person with great respect for people from all walks of life. In my view, it is critical to our justice system that all people can appear before our courts, whether in person or through counsel, and feel that they have been understood and respected by the judge, and that their issues have been heard fairly. I believe that I can be a judge who will deliver fair and balanced judgments, and will respect the people who entrust their important issues to the courts. In addition, I bring energy to the tasks I take on, and very much look forward to bringing that energy to the challenge of judging.
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.
I have had a broad life experience. I grew up in a small town, and moved to Vancouver for university. After I received my undergraduate degree in English, I moved to Ottawa looking for a career. I ultimately got a job working at the University of Ottawa and taught myself computer programming, and then went on to write the software for cooperative education programs at a number of universities across Canada. After doing this for several years, I decided to go to law school and moved back to BC to go to the University of Victoria.
I articled with a public interest law firm, the Sierra Legal Defence Fund, and with a small firm, Roberts Muir & Griffin. After nine years, my small firm then merged with a very large national firm, where I have worked for the last 16 years.
Throughout my law career I have been active in the community. I have been on the boards of the Vancouver Status of Women, West Coast Environmental Law, the Environmental Health committee of the BC Medical Association, and the Karen Jamieson Dance Society.
As a woman, I have had to fight hard in my career to gain and maintain my place at the table. I practice in an area where the numbers of women are noticeably lower than in other areas. I have made it my mission to make sure that the women practicing in commercial litigation are showcased, supported, and advanced.
I met my husband in law school and we have been together now over 25 years. He is a member of the Haida nation, and we have two Haida children. I have gained a lot of personal insight into the lives of lndigenous people in Canada through my family. I have seen the obstacles that life throws at many people in Indigenous communities, and I have also seen the resilience and hope in these communities. I have also had to be a strong advocate for my children throughout their lives, as unfortunately the public school system still expects Indigenous students to not succeed in the same way as non-Indigenous students. For example, I had to fight with the schools to make sure my children were enrolled in courses that would permit them to go to university.
I have always tried to be a strong role model for my children, and for my many nieces and nephews, as well as the young people I work with. I want them to know that there are people backing them up, and that they can achieve their dreams. I think it is important for strong women to be on our courts, to be role models for women in the profession, and to ensure that men and women who come before the courts can recognize that women have the strength, intelligence, compassion and resilience needed to be a judge in Canada.