Steeped Tea—An update on the Federation of Black Canadians

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Three weeks ago, dozens of Black folks visited Parliament Hill in Ottawa for “Voices on the Hill”, an event hosted by the Federation of Black Canadians (FBC) and the Michaëlle Jean Foundation (MJF). After a well-publicized incident in which security at Parliament Hill made racist comments about the Black visitors, FBC and MJF moved quickly to mobilize a national response. According to members of a delegation from Halifax, Nova Scotia, FBC founder and steering committee member Justice Donald McLeod, a sitting Ontario judge, told them not to speak out about their experiences of racism at Parliament Hill.

This revelation comes one year after I published “Black Tea—the truth about the Federation of Black Canadians”, in which I outlined several ethical concerns about FBC’s leadership and activities. Three individuals from Halifax, including two who were on the call with McLeod, reached out to me through 902 Man Up, a local organization that supported youth who attended Voices on the Hill as part of the 2019 National Black Summit in Ottawa.

These individuals were concerned that a sitting judge had unexpectedly called them and, in their view, attempted to silence them regarding the discrimination they faced. I am sharing the experiences of these three Halifax residents with their blessing; the following also includes a broader update on the troubling issues that have long been brewing at FBC.

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On February 4 2019, on the final day of the 2019 National Black Canadian Summit in Ottawa, FBC and MJF lead a delegation of about 150 people to Parliament Hill. The summit program described the event as a chance to “ignite much needed conversation between community and political leaders.” During the gathering, parliamentary staff took photos of a group of Black visitors gathered in a fourth floor cafeteria. According to security on-site, staff sent those photos to security officials and complained that the Black visitors were being too loud.

According to several witnesses, a security guard approached some Black visitors and declared that, while he did not want to appear racist, he was receiving complaints about the “dark-skinned” people in the cafeteria, and was requesting that they leave the area. Shortly after the incident, Trayvone Clayton and Kate Macdonald, two youth attendees from Halifax, conducted an interview with the national political affairs network CPAC, and spoke about the racist treatment they’d just experienced.

FBC and MJF reached out to attendees who were present during the incident and began to organize a response. On February 5, Peter Flegel, director of programming and development at MJF, started a Facebook group of selected attendees, including Macdonald and Clayton, as well as Marcus James, the father of Clayton. MJF and FBC began to plan a press release and a series of national press conferences in response to the racist incident.

FBC staffer and steering committee member Dahabo Ahmed Omer facilitated a national call to discuss the group’s media strategy on the late evening of February 6. Flegel was present on the call, as were members of the Facebook group he had created. During the call Omer excused herself briefly, then returned to inform the group that she had just been contacted by an official at the Prime Minister’s Office. Omer claimed the official had informed her that the PMO had received a “leaked” copy of the group’s press release.

According to Macdonald, many participants on the national call were shocked, confused, and upset by Omer’s news. When James asked Omer how such a leak could have occurred, she reportedly replied that the group shouldn’t “waste time” looking into it. Another individual from western Canada who was also on the call verified Omer’s comments to me during a phone interview. The call ended after 10 p.m. in Ottawa, or 11 p.m. in Halifax.

Following the national call, Omer sent a Facebook message visible to the entire group to request that Macdonald and Clayton speak with her privately (a screenshot of that message appears below). Macdonald and Clayton appear to have telephoned Omer between 11 p.m. and midnight, and when they engaged in the call, they say another person whose presence Omer had not mentioned was on the line: Justice Donald McLeod.

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Clayton and Macdonald say McLeod told them that, in his opinion as a judge and as a lawyer, they should not be sharing their experiences of racial profiling at Parliament Hill. When the youth informed McLeod that they had already been doing so, through interviews with CPAC and other local media, they say McLeod reminded them that parliament was still investigating the incident, and that if the youth “misspoke”, that they too might be investigated by parliament.

Geoff Regan, the Speaker of the House of Commons, did receive a formal complaint and a request to investigate the racist incident on February 6. However, Macdonald, Clayton, and James all say security officials from the Parliamentary Protective Service never contacted them regarding the internal investigation.

Clayton and Macdonald say that McLeod counselled them not to speak at the upcoming press conference scheduled in Halifax on February 8, and suggested that they should seek someone “as charming and charismatic” as themselves in replacement. Clayton suggested to McLeod that his father James might be willing to speak on their behalf. McLeod also reportedly told the youth that the present moment was an “important moment for race relations” in Canada, and that they could jeopardize progress for the Black community by speaking out.

The Halifax attendees say McLeod also referenced a legal battle involving the late Rocky Jones, a prominent African Nova Scotian activist. McLeod reportedly said Jones had gotten sued by the police for misspeaking about racism, and that the judge didn’t want the youth to meet a similar fate. After the call, Clayton shared the contents of the call with his father, who contacted me the following evening on February 7 to express his concerns.

“At first we believed McLeod had called to share his expertise to help us,” Macdonald told me. “But as the call went on, we felt he was trying to silence us.” James shared similar sentiments, and all three Halifax residents told me they were particularly insulted by the invocation of Jones’ activism to justify what they perceived as an attempt to silence them. “We all understand that the judge’s phone call wasn’t appropriate,” said James.

On February 8, James led a press conference featuring his son and Macdonald,with the  support of several local community members, at George Dixon Community Centre in Uniacke Square, Halifax. Omer forwarded the Halifax contingent a copy of prepared statements for James and all other national  press conference participants to read. James and the Halifax speakers declined to read the prepared statement. Instead, James stated that he was simply there to support the youth. “They wanna tell their story, their way,” said James. “It needs to be heard from them.”

Macdonald began her remarks by saying, “I was on Parliament Hill so I’m gonna be real right now and go out on a limb here: we were told, or advised, what to say. I can’t do that. I don’t wanna do that. I wanna say the things that I actually feel, and I wanna speak for generations to come.”

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The latest disclosures about the activities of McLeod and FBC raise larger questions about why the Ontario judge continues to serve on the steering committee of an organization that seemingly continues to lobby the federal government. McLeod, who founded the group that would eventually become FBC in the summer of 2016, confirmed his resignation as chair of the group’s steering committee in June of 2018. McLeod’s resignation was in response to a request to from the Ontario Judicial Council, an entity whose mandate is to “investigate complaints made by the members of the public about conduct of provincially-appointed judges.”

It was the judicial council’s understanding at that time that McLeod had not only resigned, but had also “disengaged from any activities on behalf of the FBC.” It is unclear if the Council is aware that McLeod has resumed his role as a member of the steering committee, as indicated on the group’s website as of  February 2019.

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A complaint regarding McLeod’s conduct was filed on February 23, 2018 by Faith Finnestad, an Associate Chief Justice of the Ontario Court. Beginning in September of 2017—more than two months before FBC announced its existence to the public—Finnestad repeatedly told McLeod in person and in writing that she feared his role with FBC was incompatible with his position as a judge. On December 21, two weeks after FBC made its public debut, Finnestad sent an e-mail to McLeod that included the following remarks:

“You’ve indicated that you feel that somewhere down the road as the federation develops, your role with it may become inconsistent with the judicial role and you have cautioned people that at that point you will give up those responsibilities. I am cautioning you as I did a few months ago, that I believe you are already at that point and that you should leave this Influential [sic] position…”

At a judicial hearing in December The Council scrutinized McLeod for private meetings he held with several powerful government officials in the summer of 2017, including meetings with Prime Minister Justin Trudeau and his former chief of staff Gerald Butts, former Ontario Premier Kathleen Wynne, and several federal Liberal government ministers and cabinet members.

The Council ultimately found in its December 2018 decision that “The activities of Justice McLeod and the FBC thus amount to lobbying.” However, the Council dismissed the complaint under the rationale that McLeod’s lobbying “was not so seriously contrary to the impartiality, integrity and independence of the judiciary that it rose to the level of undermining the public’s confidence in his ability to perform the duties of office or the public’s confidence in the judiciary generally.”

In its decision, the Council repeatedly cited McLeod’s good intentions in fighting for the Black community, but also warned that its decision was not an invitation for judges to engage in lobbying. “We emphasize that it does not follow from our decision that judges who engage in lobbying will not be guilty of misconduct merely because of their good intentions,” the decision states. “In the future, if a judge crosses the line that we have delineated, a Hearing Panel may indeed find that public confidence has been undermined and that the judge has engaged in judicial misconduct.”

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Voices on the Hill appears to be a continuation of an event the FBC has previously referred to as “Lobby Day.” The program note from the 2019 Black Summit described the event, “in its third edition,” as a “unique opportunity for federal lawmakers to meet with African Canadian community leaders representing a variety of key sectors.” McLeod was present at Parliament Hill during the 2019 event. In preparation for meetings with various government ministers, including cabinet ministers, Omer provided event participants with a series of documents entitled “Black Voices on the Hill – Issues and Asks.” These documents appears to outline FBC requests for government funding and programming.

The documents line up with specific federal government portfolios, including Justice; Canadian Heritage; Immigration, Citizenship and Refugees; and Social Services. Similar FBC requests for funding and government action during government meetings in 2017 led the Judicial Council to conclude that McLeod and FBC were indeed engaged in lobbying. As noted in a February 3 news story for the Ottawa Citizen, Omer instructed summit attendees who were planning to meet with federal politicians, “Don’t walk out of those meetings without making your ‘ask.’”

Despite the warnings about lobbying by the Ontario Judicial Council, McLeod is once again a member of FBC’s steering committee. FBC continues to organize and coordinate government meetings that include “asks” circulated to participants in advance; such meetings could be interpreted as ongoing lobbying by FBC. Of greater concern, McLeod’s late-night call to young people who experienced racism demonstrates how his role at FBC may again conflict with his position as a sitting judge.

McLeod has previously involved himself in matters that may not be appropriate for someone in his position. Last year McLeod engaged in private conversations and a private meeting regarding Abdoul Abdi, a refugee from Somalia who was facing deportation in the weeks after FBC made its public debut.

I have obtained e-mails that appear to document McLeod’s efforts to coordinate a meeting with Ahmed Hussen, the minister of Citizenship, Immigration, and Refugees, to discuss Abdoul Abdi’s case. Below are screenshots of messages McLeod sent to coordinate the Hussen meeting. McLeod sent these communications from the government of ontario e-mail address he has been assigned as a judge:

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On January 13 McLeod met with Hussen, two of his staffers, and the community member at Hussen’s constituency office on Ingram Drive in Toronto.

On the afternoon of February 19 2018, McLeod contacted a member of the community coalition supporting Abdoul Abdi. I have obtained and reviewed a recording of McLeod’s phone call to the coalition member. During the call McLeod indicated that he had reached out to this particular coalition member “because you and my sister are friends.”

Minutes into the call, McLeod told the coalition member, “I wanted to talk to you because, um, so the person with the Abdoul case, so, I think speaking to his lawyers wouldn’t help because what’s been happening since January is I’ve been trying to set a meeting with the, um, with Ahmed Hussen.” McLeod had already met with Hussen on January 13 when he made this comment to the coalition member.

These interactions seem to directly contradict statements McLeod and his lawyer Mark Sandler made regarding the Abdi case at his hearing. McLeod and Sandler both stated that the judge had no personal involvement with the Abdi case. I cite below a relevant portion of McLeod’s exchange with Sandler from the hearing:

 

Sandler: Did you have any involvement at all in any representations that were made by the FBC about that specific case?

McLeod: No.

Sandler: And why not?

McLeod: I felt that because it was a matter that was still before the courts—even if it’s a court that’s not my court—I shouldn’t be commenting on it.

 

Mcleod ultimately saw his complaint dismissed, and the public reimbursed him for $81,265.96 in legal fees.

 

CORRECTION: An earlier version of this story indicated that Omer called Macdonald and Clayton. It appears Macdonald and Clayton called Omer.

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