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Making waves

Cover Story
|Written By Michael McKiernan
Making waves
Photo: Liam Sharp

When she’s not in one of her Toronto offices or at home with her family, chances are good Janet Leiper is in an ocean somewhere in the world, trying to catch a wave. “I love surfing, and I spend as much time as I possibly can doing it,” says Leiper. “There are so many great metaphors there for court and advocacy. The conditions are always changing, so you can’t count on things always being the same. You have to adjust yourself, and you have to show respect for the environment that you’re in . . . I’m always trying to encourage people to take it up, because it is such a great antidote to our lives here. When you go out into the ocean, any problem you have is gone by the time you come out.”

Leiper, the City of Toronto’s integrity commissioner, gazes longingly at a watercolour by Canadian artist Pat Fairhead of an east coast surfing scene on the wall of her city office. The painting’s dark green tones almost make you shiver, but Leiper lights up as she explains she’s been working with a coach for the last five years to improve her skills. “When I can, I also try to go south to oceans where you don’t have to surf under 5 millimetres of neoprene, with a hood, and boots, and gloves,” she says. “I’ve done a lot of sports, but this is one you do for your whole life.”

Surfing is the latest in a long line of personal and professional reinventions for Leiper. Since her call to the bar in 1987, the Toronto lawyer has combined a criminal and administrative law practice with a variety of public appointments, including chairwoman of Legal Aid Ontario, visiting professor at Osgoode Hall Law School, and her most recent role in Toronto, where she has been since 2009. Away from work, she’s also leapt into French lessons, taken acting classes, learned to paint under the guidance of Fairhead, and confronted a fear of heights by literally throwing herself off a five-metre platform into a swimming pool during diving lessons. “It’s always been important to me to have this commitment to lifelong learning. Not just in law, but actually learning anything. I think it keeps you fresh, it informs who you are as a person, and it rounds you out as a professional.”

A small white scar on her lower lip, barely visible touching up against the edge of her lipstick, serves as a permanent reminder of her early days on a surfboard. “I had two categories of waves: the ones that could hurt me if I did something stupid, and the ones that could hurt me whether or not I did everything right,” says Leiper. The injury fell into the latter category, as a wave slammed Leiper’s board into her mouth, impaling the lip on a tooth.

Some observers will see parallels to her term as integrity commissioner, since the rip current under the newly elected and emboldened Mayor Rob Ford always threatens to engulf the office. As a councillor, Ford was antagonistic to the position even before sweeping to victory in the 2010 election. Since then, frequent run-ins with Ford, including one that nearly cost him his job, have increased scrutiny and led to unflattering headlines, based on allegations from the mayor and some of his allies on council that Leiper’s office is “politically motivated.”

“It’s just a waste of taxpayers’ money if you ask me,” Ford said in an interview with the CBC last October after Leiper ordered him to apologize for criticizing the city’s medical officer of health. “And the average person thinks the same.”

If the criticism has left a mark, then like that scar on her lower lip, it doesn’t really show. And it certainly hasn’t put her off continuing to do her job, or from considering another public service role when her non-renewable five-year term expires in 2014. In surfing terms: “The first time you try it, you get beat up by the ocean, and you either go back and say, ‘You know what, I think I’ll just watch from the sidelines,’ or you say, ‘I want to go straight back in,’” she says.

Leiper points out it was the uniqueness of the integrity commissioner position that drew her to the job. When she took over in 2009, the role was only five years old, having grown out of Ontario Superior Court Justice Denise Bellamy’s investigation into allegations of conflict of interest and bribery in the awarding of computer leasing contracts by the city. When her predecessor David Mullan was appointed the inaugural commissioner in 2004, he was also the first one in Canada. “We’re still in the very early stages, with virtually no jurisprudence. It’s as if the Criminal Code was just created five years ago. There’s a lot of first principles thinking, and a lot of advice and education, which I really enjoy. It’s not routine,” she says, laughing. “I’m not a creature of routine.”

Three of her last four reports to city council on named individuals involved either the mayor or his councillor brother, Doug Ford. Most spectacularly, her 2010 report on the mayor’s use of city letterhead to solicit donations for his football charity, which she found breached the city’s code of conduct, sparked the chain of events that put his job in jeopardy. Council ordered Ford to pay back just over $3,000 in donations, but when Leiper followed up in February 2012 and found he had not yet complied, the new council overturned its previous decision. But Ford’s decision to speak and vote on the matter was challenged by Toronto voter Paul Magder, who brought a lawsuit seeking Ford’s removal from office. In November 2012, Superior Court Justice Charles Hackland decided against Ford and ordered him out of the job, but that decision was overturned by the Divisional Court in January.

“We like to say in the accountability sphere that anything that raises the profile is good,” says Osgoode Hall Law School Dean Lorne Sossin, who took on the integrity commissioner job on an interim basis between Mullan’s retirement and Leiper’s appointment. “It’s really been at the centre of things, although it has spiralled well out of her jurisdiction.”

Leiper grins wryly when the case comes up. “While it is important to make sure that accurate information about what the office is out in the public domain, I also exercise a significant amount of restraint on specific cases . . .

it’s a key value of how to do the job in my view. It’s foundational, so no, it’s not hard to restrain myself,” she explains, emphasizing fairness is her priority. “The same rules apply to everybody. I just take the complaints as they come, I apply the protocol, and my personal views are highly and totally irrelevant. In a city this size, there will be people who don’t understand the office, people who do understand, people who value it, people who don’t value it, and people who don’t care. That’s just the nature of public service in a large community.”

Criminal lawyer Nadia Liva, who practises in association with Leiper at the 15 Bedford Road Law Chambers, says such a response is typical of Leiper. “She’s so careful, she’s the perfect integrity commissioner. Criminal lawyers are known for their gossiping, but I’ve never been able to get anything out of Janet. None of us ever know what’s going on because she’s doing her job properly,” Liva laments.

Sossin promised Leiper a “lively and eye-opening” experience when she took over from him, but says the results of the 2010 election made that an understatement. “This particular session has been one of the most challenging in terms of the fractiousness of council, and the sense of tension between and among councillors on a whole range of issues. It creates an atmosphere where you need to have an honest broker, where councillors can go for good, sound, principled advice,” says Sossin. “If you have a thin skin and let yourself get caught up, then you’re not fulfilling your function. It’s to Janet’s credit that she has risen above the fray . . . she brings the type of credibility very few people can sustain.”

Clayton Ruby, the Toronto lawyer who acted for Magder in the conflict of interest suit, is even more generous in his praise: “Leiper is a saint. She endures incredible abuse from a handful of councillors and others, but largely, I think she’s held in huge respect by council and the profession. She’s doing a public service for everyone, and doing it superbly.”

Leiper says much of her most satisfying work occurs out of the public glare. “It’s like an iceberg. All that the public sees are the publicly reported complaints at the tip. But then so much other valuable and non-adversarial work goes on below the surface, in a confidential way that people don’t see unless they read the annual report,” she says.

Last year, her office handled 46 informal complaints, a roughly three-fold increase over the previous year. Those involve more minor conduct matters between councillors and complainants. “I’ve been part of many meetings, and seen apologies that are eloquent, have closed the loop, and finished off an issue that someone had. It’s kind of like a direct citizen engagement between elections in a way that’s far more satisfying than casting a vote, because you can deal with something that’s more personal to you,” says Leiper.

Another growth area for the office last year was in the realm of formal and informal advice. Leiper says city councillors are beginning to realize they can protect themselves by proactively seeking her counsel on a particular issue before a complaint comes in. To maximize interactions outside of the formal complaint process, Leiper says she also takes any opportunity she can to educate councillors and their staff on the responsibilities of her office. “I really think for these positions to be valuable to everyone whom it impacts, you’ve got to be more than a cop. You can’t be a cop all the time, because that creates a different dynamic.”

While Toronto remains the only municipality mandated by provincial statute to have an integrity commissioner, a number of other cities — 29 in Ontario — have made voluntary moves into the area. Twice a year, all the integrity commissioners meet to discuss emerging issues. Still, Toronto stands out from the crowd. “Toronto is the leader in controversy,” says Robert Swayze, who acts as integrity commissioner for Mississauga, Ont., and five other municipalities. “I call Janet quite often. She’s been really helpful to me.”

He says the small community of commissioners has been riveted by the situation in Toronto, and Ford’s court case highlights the need for a change in Ontario’s Municipal Conflict of Interest Act. He believes Leiper was right to find a breach of the code of conduct in her original report, but her office may have been unfairly tainted by the draconian nature of the punishment handed out by Hackland, before it was overturned. “Ignorance is not a reason to unseat someone. I think it’s an intrusion into the democratic process. That wasn’t really the fault of the integrity commissioner, but the courts,” says Swayze. “It’s using a sledgehammer to crack a nut. You can either let the councillor off, or unseat him. There’s nothing in between in the act.”

Suzanne Craig left her own job with the City of Toronto in 2009 to take on integrity commissioner work on a part-time basis for Vaughan, Ont. She now does the job for a number of other municipalities and says she doesn’t envy Leiper, but looks to her for guidance. “I’m in awe of her ability to remain apparently unfazed by much of the criticism she’s received from the politicians she works with. There are not many who can work under that kind of scrutiny and be as measured and objective as she is, even with her harshest critics,” says Craig. “There’s a particular gentleness that tempers her stern investigations.”

According to Sossin, Leiper’s stint at Legal Aid Ontario would have helped prepare her for the increased public attention she’s dealt with over the last couple of years. “That’s a setting in which there is an intensity to the conviction of the people involved and the scrutiny of the public,” he says.

Leiper took over as chairwoman of the board of directors at Legal Aid Ontario in 2004. After 17 years in the system as a sole practitioner defending certificate holders, the jump to such a senior role was tough. “I thought, ‘I have to get an MBA in a weekend,’ so I went to the bookstore and got a stack of books: Robert’s Rules of Order, books on the CEO relationship, the Carver model of boards, books on how to be a servant leader,” says Leiper. “I read them all, and got these great briefings from legal aid. But I learned best from being on the job.”

Suddenly, political cycles, bureaucracy, and resource management became everyday concerns. “Criminal and family lawyers who are on the board have to learn, as I did, that they now are responsible for the whole piece. You’re not just there to think about your sector, you bring all the knowledge of that sector that is valuable, and then grow it into this expanded governance role. Now you’re thinking about the interests of many people, including the viability of the corporation.”

In her three years at the helm, she says the LAO board saw signs of the impending budget crisis. After she left in 2007, interest rates plunged with the onset of the global economic downturn, wiping out a large chunk of its income raised through interest on the trust accounts of Ontario lawyers. In 2007, that stream generated more than $50 million for the corporation, but by 2009, it had fallen to less than $5 million. “Forecasting out, we could see this might happen. We used to say it was like a house; the roof hadn’t fallen off yet, but we were finding shingles in the garden,” says Leiper.

She maintains an active interest in legal aid through her involvement on the board of the Criminal Lawyers’ Association, but says she is sometimes frustrated by the system’s lack of efficiency, and the persistently low financial eligibility rules, which remain virtually unchanged from the rates set in the late 1990s. “It’s a big challenge and there don’t seem to be any simple answers, but there are lots of people determined to improve it, and I’m one of them. We always have to believe that we can get it right or make it better, because if we give up — that’s just not a viable alternative.”

Liva says she’ll be happy to get Leiper back into private practice when her term as integrity commissioner expires next year, since the intensity of the role has limited her ability to take on many clients. “I haven’t let her out of it. I find at least a case a year I can drag her into,” says Liva. “I won’t let her stop because she’s too good at it.”

Although a lower profile for Leiper will also mean a little less excitement in the office, according to Robin Parker, who also practises in association with Leiper and Liva. When a radio DJ christened Leiper a “watchfox,” as opposed to a watchdog, after Toronto City Councillor Giorgio Mammoliti labelled her “pretty good-looking,” the nickname stuck in the office, says Parker. “We tease her all the time. Even that, she just laughs,” Parker says. But both Liva and Parker suspect Leiper will find another public service project to take on. “I don’t think I can keep her at a desk, and I don’t think I’d want to. She flourishes on new challenges,” says Liva.

Whatever it is, Leiper will have to fit it around her other responsibilities as an alternate chairwoman of the Ontario Review Board and as a bencher of the Law Society of Upper Canada. “Janet is a time management guru, and is also careful not to take on more than she can handle,” says Parker. “She’s a role model for me in being able to be a well-rounded person, and be a lawyer at the same time. I don’t know anyone who does it better.”

Leiper was part of a new intake elected to the LSUC in 2011, completing a cycle for her, since some of her first legal work as a law student involved defending lawyers in discipline cases in the Convocation room at Osgoode Hall. “It’s such a familiar institution to me,” says Leiper.

In the articling debate that has dominated her first term as a bencher, Leiper campaigned strongly against those who advocated scrapping articling. The pool of mentoring talent available is too valuable to dispense with, she says. “How do you deal with clients, how do you make people comfortable talking to you about a problem that maybe they’re not ready to talk to you about in full detail? These are very subtle ideas that can’t be learned just from a book, in my view,” she says. “If it’s too passive, you have no emotional stake. You don’t have any sort of fear at play. And fear is such a great teacher, as long as it’s not paralyzing fear. It’s like something great surfers say: It’s not the fear of drowning that gets you. It’s fear of panicking.”

She says law students would do well to consider broadening their scope beyond private practice, and hopes the public interest requirement program at Osgoode Hall Law School, which she helped set up as a visiting professor between 2007 and 2009, will help them think about areas of law they might not have otherwise. All students at the law school must do 40 hours of public interest work in order to graduate. “I think it’s a different environment now than when I graduated. There are always going to be periods of uncertainty, and I’ve weathered a couple of them professionally myself. But there will always be a need for people who have these skills, and who have the resilience to work in a shifting environment, and who have a strong sense of the values that underpin their work.”

Before deciding what to do once her integrity commissioner role comes to an end, Leiper says she’ll “recalibrate” with one of her trips to the ocean. “When it’s time to move on, I’ll be ready. I’ve really enjoyed this work, and I’ve felt that way about other positions. I’ve learned that it’s just part of what keeps me fresh as a practitioner, is taking on new challenges, and then moving on,” she says.


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