Lawyers in leadership positions. Julia welcomes Tom Ullyett and Jordan Brown.
The CBA as a pathway to a career in politics? Absolutely. With applications to join a CBA national section executive closing at the end of this month, Julia welcomes two long-time CBA-ers, Jordan Brown and Tom Ullyett, who have pursued careers in politics. Tom served as Deputy Minister in the Yukon to six ministers from two political parties over the course of thirty years. Jordan held political office in his home province of Prince Edward Island from 2015 to 2019, serving as Minister of Education, Minister of Justice and Attorney General. They discuss their involvement with the CBA over the years, the not always obvious duties of government lawyers, and how a professional legal education shouldn’t limit you to the practice of law.
Canadian Bar Association - National Section Elections (cba.org)
Government Lawyering: Duties and Ethical Challenges of Government Lawyers | LexisNexis Canada Store
Leadership Lawyers - Tom Ullyett and Jordan Brown
[Start of recorded material 00:00:00]
Tom: Just I don’t mean to chew up your time Julia but just remind me Jordon when you were a minister of justice, what were those years?
Jordon: 2018 and 2019 I’m thinking. I was only Minister of Justice for a year and a half probably like thereabouts, something like that yeah.
Tom: Right. So I just missed you because I left justice for another department in late 2016, early 2017. You must have been sitting there going come on I’m a lawyer.
Julia: Hello and thank you for tuning into The Every Lawyer, I’m Julia Tetrault Provencher. The CBA has sections for every area of practice, from law students to judges to the overworked immigration section, to criminal law. And they all need people like you to get involved and contribute your skills. Applications to join the CBA executive are still open until the end of May [unintelligible 00:01:21] My guests todays are both long-time CBA’ers, Tom Ullyett and Jordon Brown.
This is actually truly a pan Canadian episode here. I’m in Quebec City, Tom you are in the Yukon and Jordon, you are in the PEI. You two have quite a lot in common, both lawyers from smaller communities, both in public service and serving those same communities for many years now. Not only in a legal capacity but Jordon, you held public office in PEI from 2015 to 2019 and you served as Minister of Education, Minister of Justice and Attorney General, or AG as we say. While you Tom, in your three periods as Yukon’s Deputy Minister of Justice/Deputy Attorney General, you worked for six ministers from two different political parties serving directly under and working closely with six different Jordons, if we can say that. It goes on with the parallels and I can include myself in this last one, we all get our start in the CBA in the Young Lawyers section. We have invited you both here today to talk about lawyers in positions of leadership.
Jordon and Tom, you have agreed to join us, among other things yes, to talk to each other, but also to encourage our members and listeners and the friends of our listeners and the friends of our members, well everybody actually, to get involved in our community and with your association, so Canadian Bar Association Sections executive elections. Maybe we can start off at the very beginning of it all, which is to you both, what did you want to be when you grew up.
Tom: We’ve got to go back in the archives, eh? I want you to say you want to be a lobster fisherman or a potato farmer.
Jordon: Yeah, neither of those I don’t think was there. Truck driver was on the list and heavy equipment driver and those kinds of things but no, lawyer was actually on the list from a very early age. So here’s a funny little story. so my dad was a lawyer, or I guess is a lawyer, if you ever stop being a lawyer, I don’t know. He was the director of Legal Aid for the province throughout his entire career and just retired a few years ago. Anyway, when I was younger, dad was cooking dinner, which was not totally typical at that point in time but anyway that’s how it was in our house. And so anyway I kind of perked up, I was probably 5 or 6 at the time, and I said, “Dad, I think I’d like to be a lawyer but I don’t think I could be.” “Yeah, Jordon, why is that?” “I don’t know how to cook, dad, I don’t think I could cook dinner.”
Julia: No way because that’s really something you need to know [laughs].
Jordon: Yeah, exactly so there you go. I kind of got it honestly a little bit and was interested by the legal dramas on TV and whatnot, although not much of what we do actually really relates that much to what you see on TV. But I think amongst other things career law was always something I saw myself doing.
Julia: When did you decide public service because that’s another thing.
Jordon: Yeah, so here’s another insight and a quirky story, so I’ll never forget my interview for my current firm. And I can remember walking in and the two ladies that were doing the interview, one of whom actually is the chief of staff for the Premiere right now, [unintelligible 00:04:57] and this is October our first year now mind you so I don’t think we’d handed in an assignment yet. They say to me, “Well, what areas are you interested in?” And I said, “Criminal and corporate commercial law” and they just kind of snickered and laughed and said, “OK, he really knows what he’s doing here.”
Anyway and ironically then that’s what I did for the first five to eight years of my practice, I did a fair bit of criminal law and a slower start into a corporate commercial practice. And then kind of moved a little bit away from the criminal law as I moved further on into my career, so there you go, everything is possible. So and just to be clear, I was never a public servant I guess in the true sense, I never got my paycheque directly from the government of Prince Edward Island or whatever. And politics kind of chose me, I ran thinking I had about zero chance to win, I was running against the leader of the conservative party at the time who was a great guy and thought that they might do pretty well at the election. And I think really he spent so much time campaigning provincially that he had kind of done himself a disservice in his own district and I managed to squeak in there. So anyway, not to say that I didn’t want to do it or anything like that, I just didn’t ever expect to win and there I ended up.
Julia: And there you are and you know how to cook, [laughs] maybe, not there yet. And you Tom?
Tom: Well, some similarity to Jordon’s story just a little bit. I knew from a young age that I wanted to be a lawyer, I’m not sure why, there were no lawyers in my family or anybody that was even remotely connected to the law. But I think I was probably influenced by popular culture and in particular, as Jordon said, shows on TV. And I thought well, that would be a fun job to do, it looks like they have lots of fun, it looks like they get to dress really well, it’s prestigious, all lawyer seem to be rich, on and on and on.
So that was from age 12 onwards. But prior to that I was thinking seriously, and I’m sure glad I didn’t go this route, I was thinking seriously, I almost don’t want to admit this in a public forum but my family all knows it, I wanted to be a Catholic priest because the influence my father who had studied for the seminary and spent a few years in the seminary and checked out just before he became a decan. But a lot of his friends were priests and so that was quite an influence on me. But around 12 or 13, certain things were happening my body that changed my thinking quite dramatically that I was no longer interested in a religious vocation. I probably would have been terrible at it anyways and it was really since age 12.
And as Jordon might have fallen into politics, I won’t say I fell into law because it was always a goal of mine through junior high school and high school and certainly when I entered University of Calgary I was very keen on getting decent marks so that I’d have a decent chance of getting into law school. But I was certainly always kind of interested more in the social and social justice and social sciences of academia and that’s sort of where I focused my undergrad anyways. I was less interested in the corporate commercial tax and you might say the bread-and-butter law [laughs], I’m mote interested in things that raise sort of big societal issues. Although I’m very happy that I took civil procedure and criminal law and corporate law and contracts, of course you have to take those courses as a matter of course because they’re invaluable, not just in day-to-day life but certainly in any form of the practice of law.
Julia: Yeah and same question, public service, when did that happen?
Tom: Well again, I had nobody in my immediate family who was in public service, so there was no real role models here. I had aunts and uncles in Ottawa, I grew up in South Western Ontario, I had aunts and uncles in Ottawa who I saw regularly who were federal public servants. But that wasn’t a huge influence to me even though they seemed to have a nice life and lifestyle and all of that. And really even coming out of law school when I was applying for articling, I was applying at private firms and it was only when I started to think that I would like to go north because I lived in the west, I’d lived in central Canada but I’d never been north.
And I thought, I’m going to see if I can article in the north. All my friends, and this is the University of Ottawa Law School, a great law school by the way, were all applying to work in Vancouver, Calgary, well Ottawa, Toronto, Montreal and I thought no, I’m going north. So I applied in Yellow Knife and White Horse and I guess not only did White Horse choose me but the place that hired me was the government of Yukon. And I thought OK, this is a one-year contract, it’s a two-way contract meaning I’m going to White Horse for a year, I’m going to do my articles for the government and I’m getting out of dodge. I’m going south and probably to Calgary and work in the oil and gas area. But boy, during that period of articling I realized that working in government was a fascinating and satisfying place to be as a student and later as a lawyer.
Julia: I mean that’s the kind of thing I wished I had done, doing my articling up in the north, it never happened unfortunately but very interesting. And now going to the CBA, how did it happen that you ended up involved in the CBA? Tom, I know for sure that, well we’ve heard, that you joined the CBA shortly before starting law school, so you joined it a long time ago. And also you were awarded CBA Louis St-Laurent Award, which is our association’s highest award recognizing a lifetime of dedicated service to the CBA and the Canadian legal communities. So first, congratulations, why did you start with the CBA and what kept you all these years?
Tom: I think yeah, I think I probably didn’t become a CBA member until my first year of law school. But I thought of a time to become a CBA member it’s true before I was in law school because at the time my parents were living in Windsor Ontario and University of Windsor had a law school for a long, long time. And over Christmas one year when I was living and going to school in Calgary but my folks were in Windsor Ontario, I was doing some studying at the university in the library at the law school. And I saw a bulletin board with one of these sort of tear off things where you could apply to be a member of the bar association. And so that was my first image, I thought well I want to be a lawyer, maybe this is my ticket, I’ll apply to be a CBA member but I don’t think I actually became a member for another year or two after that, probably in 82 when I started law school.
And pretty quickly it became clear that the CBA was a major force within Canada’s legal community, both even in the small legal community that was and still is White Horse Yukon, and of course nationally. And to be associated with the CBA and to be meeting other lawyers and working together on common things, it was just too good to pass up. And I remember at the time, one of the things that was a draw for me was with your membership, especially as a student it was so cheap, which our membership you’ve got a hard copy now it’s hard to imagine, a hard copy of the Canadian Bar review. And that in itself I thought was worth the price of admission. Oh my god, I get the Canadian Bar Review, whatever it was quarterly or bimonthly.
Julia: Love that, so that’s a good technique then [laughs]. And you, Jordon?
Jordon: Well, I was just going to say I think when we were coming through law school, I think the membership might have been 20 bucks if memory serves at the time, which was a tough sell when you were going to university. Where they got you was the CBIA reps, I went to law school in Fredericton at UNB, the CBIA reps would of course come in and they’d be trying to sell you insurance and whatever. And so they’d put on these relatively kind of fancy things where you’d have some snacks and more substantive type meal and maybe a drink or two. And so you’d be doing the math, am I going to get my $20 worth out of these events or how will that work?
Anyway, so I think that was my introduction to the CBA was as a law student at UNB and I think that was I, there were some kind of some insurance and planning aspects that would have drawn me in. Now that having been said I mentioned my father was a lawyer previously and he was a member of the Canadian Bar Association. And so we would have started to get – like I started driving when I was 16 and we would have gotten our insurance through the, I can’t remember, I think it was TD Meloche Monnex through the Canadian Bar Insurance Association back to that time. So I knew full well what some of the advantages were right from the age of 16, if I didn’t know it before then, and kind of kept it going when the opportunity rose to me.
And I think actually in a very similar way to Tom this didn’t come up but I thought it might, anyway very early in my practice, I can’t remember exactly when it was, two things happened. I can’t remember whether the first was CBA or whether it was the Law Society but every year there are mid winter meeting they do kind of an homage to the youngest lawyer and oldest lawyer practicing. And so I was the youngest at the meeting and my dad was the oldest, or at least the longest practicing to qualify that showed up for the meeting or that would commit to showing up for the meeting.
Anyway, so long story short, going along with that you kind of got the tap on the shoulder, “Hey, would you be interested in signing up for…” and I can’t remember totally what it was at the time. But the long story short was I ended up signing up at a given point in time to be the CBA young lawyer’s rep for Price Edward Island. And then as a result of that I did two terms I think as that and then entered into the rotation to become the Young Lawyers forum chair eventually and I think it was about a five year rotation at the time. And so I can remember it was Beth McGrath who was the previous chair, lovely person, and Beth had said to me, “Jordon, you should really think about being the CBA Young Lawyer chair at some point in time. It’s really a great gig, you get five or six paid trips.”
And she mentioned, “You get to go to the opening of the courts in the UK and to the American Bar Association event and the opening of the courts in Quebec, Supreme Court dinner” and blah, blah, blah, blah. And maybe we just got to finish with this, my year was the year we did briefing and I got to go to Ottawa six times between January and May of that year and I ended up stuck in either Ottawa or Montreal three of those times for an entire weekend. So there you go, all the perks were gone and it was just the biweekly three-hour long finance committee meetings that I got to go to.
Julia: In great Ottawa, that’s so great [laughs]
Tom: And you know what, there again, Julia we’ve crossed over again, Jordon and I have crossed over in any event in that very early on I get sort of, by a CBA mentor sort of got pushed in the direction of the Young Lawyers. And like Jordon, I was the young lawyers chair for Yukon for two or three years and just like Jordon eventually got onto the national executive of what was then called the Young Lawyers conference. You probably remember that, Jordon by the more better, more modern term, the forum, and as Jordon said, it was a great group to be involved with not the least of which being the year that you’re were president. And yes, the international relations that were then very prominent for young lawyers.
But that idea of being aware of Young Lawyer issues. I know Jordon, you’d probably echo this, being aware of Young Lawyer issues from coast to coast. And working towards the betterment of Young Lawyers, the betterment of the profession and hopefully the betterment of society. I guess anybody who’s been a member of a service club, not that I want to say the CBA is a service club, but anybody who has been involved in a national association would probably have a similar story, just so many opportunities to help the association to help yourself and help individuals, members. But yeah, Young Lawyers was a terrific experience but I think Jordon, you and I must have been maybe a generation apart there [laughs].
Julia: I think you make a good point. I feel like CBA about mentorship is so important and I feel like all the programs they have and just what your story tell and that leads me to, because I think we understand why you stayed with the CBA, you talk about it with so much passion. But if we want people to get involved what would you say you think CBA should be most proud of? And I said already mentorship already so I’m sorry I took one big there but if you have anything else in mind I’d like to encourage people to join in.
Jordon: Yeah, look for me honestly this was a major reason why I did get involved in the first place, not good trips necessarily but more I’ll say the comradery. In a certain way practicing law traditionally has been a bit of a lonely experience. That’s probably changed fundamentally, even in the time that I’ve been here there’s been a lot of change. I have a painting on my wall over there and it’s a lawyer in a pretty lonely looking setting with his client there and it says a lawyer’s time is his stock and trade and he’s basically there with the big quill and parting wisdom on some poor soul that’s in to see him. And the implication of that often has been that maybe that as a lawyer you’d be kind of an educated person that could maybe help people that did not have education. And so you were by virtue of that a little bit kind of like the priest or like basically a leader in the community but that would mean you wouldn’t have necessarily a whole lot of peers that you could lean on.
And so anyway, I think that’s fundamentally changed in the CBAs but not obviously crucial in that over the last couple of decades. But whether it be through that or whether it be through some of the unique advocacy pieces that we would kind of take on as the CBA, you have the ability to lean on others in your profession. I think there’s a lot to be said for that, it’s an intangible that you can’t necessarily – until you know you don’t know I guess would be what I would say about it. And I think it’s a pretty major thing, it was a major thing for me kind of in my practice.
Julia: I really love that and we’ve had a lot of episodes on mental health and I think everybody says, “Reach out and reach out to your people” and lawyers don’t tend to do that. So I don’t even know if it’s evolved that much, I think a lot of lawyers still feel very lonely. Maybe not as much in the painting, which I really like the description [laughs] but it’s a very good point.
Tom: I would echo everything that’s been said, all the points that Jordon made for sure. I know we’ll come back to this later but one of the realities of the practice of law, including in public sector law, it’s a high-risk profession. We think of farming and fishing and working in the oil and gas industry, maybe even factory work being risk jobs at least physically. But certainly mentally and psychology it is a high-risk profession and we’re just starting to realize that in recent years. But that doesn’t really answer your question, I’m sure we’ll come back. I think one of the things about the CBA, that really attracted me is that just as the attorney general, ministers of justice across the country primary role is to stand up for and be a beacon for the rule of law and the proper administration of justice, well that’s exactly what the CBA does too.
So at the 10,000-foot level sort of being associated with that sort of goal and objective and vision was always a bit of a light for me and as a government lawyer certainly it was there as well. Jordon mentioned colleagues and that, I still say the people because of the CBA, I can go to any city in Canada and have a cup of coffee, text somebody and say, “Hey, Jordon do you want to go out for a cup of coffee?” Now that’s a bit of an exaggeration, but through the CBA you certainly meet people from ever jurisdiction and from most of the big cities. So I’ve always felt that what a great way to connect with people, to connect with other Canadians through this association that brings you together. Even if you’re just going to talk about how badly the Toronto Maple Leafs are going to lose tonight, oh my god, did I say that, you better edit this out, edit that out of the program, you know that you can connect with somebody and you’ll have a common link.
You might not talk about the law, you probably will, or the practice of law, but you’ll have these other links. And I guess a third thing I would say on this and again, Jordon said this is so many words, you meet some phenomenal people, phenomenal community people, people that are involved with the CBA. Often they’re not just involved with the CBA, they’re very involved with their family, they’re very involved with their community, they’re very involved at work, people who just see themselves as, I don’t mean this in the spiritual sense, but to be here to make their community, society a better place. And I’ve always found that very, very uplifting.
Julia: Love that. Well, thank you so much for sharing that and I think it will definitely encourage some people to join the CBA. There’s something we wanted to talk about which is, I don’t often get to meet lawyers who have worked as public servants and/or politicians and I’m sure many people haven't as well and I think this is the occasion to talk about this. Well, first maybe I’d like to know what do lawyers who are interested in, students or lawyers already who have exited the bar are interested in public careers need to be aware of and what’s the dos and don’ts I would say?
Tom: Is that to Jordon or is that to me?
Julia: You can decide [laughs].
Tom: Go ahead, Jordon, it’s your turn, Jordon, I’ve been talking too much.
Jordon: No, no but this is nearer and dearer to you I think so I’d be interested to hear what you have to say about it.
Tom: OK. Well, I guess I would start by saying a law degree, when you finish law school you have an amazing skillset. You probably went into law school with a lot of skills and a lot of ability and a lot of interesting talents, you come out of law school with a lot more. There’s a common and traditional and important and well respected and critical pathway out of law school and that is into the private practice of law because we need lawyers. We need lawyers for all the different services that people require just to function in their life. But that skillset that you have can be put to use in so many different ways. You could be a journalist and covering the legal beat [laughs].
That may seem a little bit out there, somebody may say, “Well, why would I go to law school for that” but so many different things. You could be a researcher, you could be a policy advisor, you could be a legislator drafter, you could be working at a legal think tank writing papers. And of course you could practice as a barrister or solicitor in the public sector for a provincial or territorial or the federal government. So there’s just a lot of roles in the public sector for lawyers even though it doesn’t get quite the time and attention maybe that the bigger firms like Jordon belongs to. But I bet you if you went and spoke to some of the lawyers who are working at the PEI department of Justice, you’d find some lawyers who are very, very happy and feel very privileged to be doing the kind of work that they’re doing.
And I guess in terms of, I don’t know if I have any dos or don’ts but I will say that one of the advantages, I think this is well known of doing public sector law is work/life balance. There is more likely, I wouldn’t say a guarantee, but more likely to be [unintelligible 00:28:50] be able to manage your workload a little bit better than if you’re in private practice. And the range of files that you get to work on as a government lawyer can be quite fascinating on a day-to-day basis. Clearly the compensation is not at the same level you might argue as certainly the bigger law firms but on the other hand there’s a lot, just by virtue of being a public servant, there’s a lot of benefits, whether it’s life insurance and disability and extended life care and all manner of holidays and leave to say nothing of a pension plan and probably a defined benefits, a pension plan.
And the last thing I’ll say is that one of the advantages of working in the public sector is to give you an opportunity to really understand how does government actually work? We know how the government works from a media point of view because any hour of the day you can hear the pundits talking about what the government is doing or should be doing or can’t do or what have you but you actually get to see how government works. You get to see how a large organization, how a bureaucracy and Jordan would have seen this and probably pulled your hair days out at times, what it’s like to actually work and be part of a very large organization. And that attracts some people and I suggest it should attract more people.
Jordon: So I think you're bang on on that last point. It’s an old adage but if you do something in love you’ll never work a day in your life. And I don’t think anybody should, as they’re going through law school set out to say, “I want to go work for government.” And that’s not to say don’t not want to go work for government but from the perspective of somebody who’s been through kind of government at the political and executive level, I think of the lawyers that would have worked for the Department of Justice or would have gotten a paycheque from the Department of Justice. And the variety of people that would be there would range from a crown prosecutor to a Legal Aid lawyer, to a legislative drafter, to folks that were doing policy work, to the deputy minister and so on and so forth, right?
And then we would have had department kind of within the department that was basically like our own little law firm, legal services, most governments would have them. And they would kind of be like your line solicitors, like if one of the departments needs help on a legal issue they generally would give them help. Even within government the roles are – there’s a crazy variety in terms of what you might find yourself doing. And so if I had kind of a matrix to think about how I would look at this if I was starting over, and it’s always tough to even think about things in those terms but maybe I should start with this, there is opportunity in government which there hasn’t always been, when I was first starting out it was very tough to get in.
And I think there is tremendous opportunity now in most governments, certainly there is here and I know there is in Atlantic Canada. But I think what you would probably look at would be is there a role that I would like to pursue, like I would like to be a crown prosecutor, I’d like to be a Legal Aid lawyer whatever it may be and then there are lots of those unique opportunities. And then the next thing would be how do you get there? And that’s a great benefit of the CBA, you’re at a CBA event, you can go chat with the director of prosecutions or the Minister of Justice, whoever it might be and people generally are great to want to have a chat. And we can see what Tom’s like, that’s just what most CBA members are like and they're willing to talk to you about what it’s like and you can kind of figure it out and have a discussion about what a pathway might look like.
Tom: Well and something Jordon that you just said was that CBA can help you with leadership skills, with interpersonal skills, can help to hone your advocacy skills. But one of the things it helped me, I’m a little off topic here, sorry, is, and Jordon you just mentioned it, it’s speaking with who you perceive to be more important people. Maybe it’s an assistant deputy minister, maybe it’s the senior partner with McCarthy Tetrault, maybe it’s a judge, regardless of what level and through the CBA and I would say through government work, you certainly learn to begin with these people are just people. And they’re more than happy, most of them, to be engaged. And CBA gives you that platform and I’d say gives you that confidence to do that which has many, many side benefits I’d say both in your practice life and your personal life.
Julia: Yeah, I agree with that. I feel like every time I’m meeting people from members of the CBA, I’m really impressed on their resume and then I meet them in person and they're so chill and so open and so willing to talk to you. That’s very true and it hasn’t failed me once so far, so yeah it’s very true. And I think as I see the time running, I would also love to jump a bit because you’ve mentioned there's so many things that can be done in the government so don’t choose because you may choose one, but there’s so many things you can do and there’s so many different positions that you can take as a lawyer. In our pretalk correspondence, Jordon when we were talking about what we were about to discuss here, you mentioned that the duties of government lawyers are distinct from lawyers working for the government on retainer. And that the distinction significantly impacts an in-house legal council services. So we didn’t ask more questions there because I was like let’s ask during the podcast and I’d like to know why, what is it?
Jordon: I don’t know if I should steal the dean in this area’s thunder but generally speaking I mean the start from within government there are different kind of aspects of the government. And I think most law students would have a pretty good handle on that so I won’t delve too far into it. But when you’re kind of a departmental solicitor or you’re a legal services lawyer and you’re providing an opinion, you need to be careful not to tread too far into kind of the political realm and you need to be sure what you’re doing is objective I guess would be the first piece. And that’s not to say that private sector lawyers aren't necessarily objective, but when you're asked for an opinion the opinion often takes the shape of the request and so you have more latitude. But as a line solicitor there’d be certain areas that you couldn’t go too far into.
And I’m just trying to think, so without going too far into breaching kind of the confidentialities I’ll give you one example of an opinion that I have sought as an attorney general over the course of time. And this came out in the legislature so it’s not anything too controversial or anything like that, but when I was in government developing legislation in relation to – there was a question that was going to be attached to an election as to whether we wanted to change our legislative system or not. And there’re a bunch of constitutional issues that surrounded that question and the legislation that would really underpin it. And so there’re probably were not going to be any clearer answers on it and in spite of that we would have to put a bill forward, right?
And so in doing that I kind of had the interesting role, and this was right around the time that Jody Wilson-Raybould and the Prime Minister were into it with each other, I had the dual role of both bringing this bill forward and giving advice to cabinet on it. And so really we needed to put together what was effectively a legal brief to say that the thing can stand on its two feet. And so from a political perspective that needed to be the case and it also needed to be solid enough legally, constitutionally that the thing would pass muster.
And so that would be something that I would have made a conscious decision, for a number of different reasons, to say we would get a private sector lawyer to give us an opinion on this bill and on the process that we would have gone through to arrive at the draft of the bill, such that you can really put some definition I think around things. And you would have somebody that would be prepared to stand behind what they have to say both kind of on the political end of things but also from the perspective of the idea that was put forward, being the idea that we were putting forward. That may muddy the waters more than it clarifies them, but.
Julia: No, no [laughs].
Jordon: I would say there are very unclear lines between one and [unintelligible 00:3850].
Julia: I think it shows.
Tom You know what Jordon points to something that I always found very invigorating as a government litigator and solicitor was the opportunity to work with what you might call outside council or external council, that is to say private bar lawyers who have been retained just as Jordon has indicated to give advice on a certain subject or to do some of the more transactional work. And I’ll bet, I don’t know, I’m just speculating, Jordon probably knows the answer, when the bridge, when the fixed length was being built whatever that was, 20 years ago, 15 years ago, I’ll bet there was some PEI government lawyers who are involved in that project working with outside council.
And I’ve certainly had that experience and it’s terrific, you’re all lawyers but you have that different perspective. And there’s a role for external outside private bar lawyers to come in and give advice either to a ministry or a deputy minister or to a minister to the premiere as the case may be. So what Jordon says is absolutely true. And one of the realities of being a government lawyer is that you have some duties, you have some legal duties that are a little bit beyond if you’re just in private practice. Elizabeth Sanderson has written a book on this but you have a duty as a lawyer to your law society, you have a duty as a delegate of the attorney general to stand up for the rule of law and the proper administration of justice. And then you have a duty as a public servant because as a public servant you are an employee. And so you’ve got three layers of duties, which distinguish public sector lawyers a little bit from the private bar.
Julia: Yeah, very much.
Jordon: I’ll give you another quick example too, Julia that might explain it a little more clearly than the one I gave previously. So when I was both as I guess as Minister of Education and Minister of Justice but this file was directed in my capacity as Minister of Education, we, being the Prince Edward Island government, were sued by the French language school board in the province. And this has happened a number of different times across the country and we had to make the decision at a point in time do we go outside for representation in relation to tis suit or do we not? And the very real piece if you’re a government lawyer is, just to Tom’s point a minute ago, ultimately you’re, I shouldn’t say your first job because it depends on how you order them, but in that capacity, in the defence of that lawsuit, you have to present a defence for your client. And the very interesting question gets to be well, who is your client?
Julia: Yeah, that’s a very good question [laughs].
Jordon: Yeah, in a very direct way your client’s the government of Price Edward Island, well who’s the government of Price Edward Island? The government of Price Edward Island represents the people of Price Edward Island. Well who are the people of Price Edward Island? The people of Price Edward Island are everybody on Price Edward Island, the subset of which are the constituents of the French language school board. So you have to be very careful in terms of who’s interest you represent when you are a governmental solicitor in what kind of advice you give or what function you’re going to take up when you're in that role. And as Tom says you have to overlay then that as an officer of the court and with other duties that you may have. And ensure that you’re not trying to serve two masters at the same time, which is the classic problem that lawyers have to try to avoid I guess you might say.
Julia: I think that’s a very good example, yeah. And I can feel here that [unintelligible 00:43:43] so many clients and who’s the one that you’re supposed to represent. Thank you, I think that was a hard question and you both answered it very clearly. Another one that is maybe not as hard but that also came up to our mind when we were thinking about this podcast and maybe it shows my lack of knowledge about this. So because you have both been either deputy minister of justice or deputy attorney general or minister of justice, does this bring any problem or does it bring any issue because I think the roles are very different so I’d like to know a bit more, do you feel like those roles are totally different or not that much? Yeah, just how did you handle that when you had those roles? I don’t know if my question is clear [laughs].
Jordon: I think so. It’s really the Jody Wilson-Raybould question. Where is the line drawn between effectively being a cabinet minister, a member of cabinet or a member of executive council and your duty to give advice if I understand your question correctly?
Julia: Yeah, you understand it correctly and you put it in pretty words which is way better [laughs].
Jordon: So Tom do you want to take this one first or do you want me to?
Tom: Sure, I’ll go. Well, I guess from a departmental or ministry of point and particularly if you’re a senior official within the ministry and of course the most senior official would be the deputy minister. It sure helps to be a willow rather than oak tree, and I would say the best deputy ministers are more like a willow tree. And I don’t mean that you bend the law out of shape, no by any means, but the fact of the matter is is that if you’re working in the public service for any length of time and especially if you're in a senior role, you’re going to be serving different parties at different times, you’re going to be serving individuals with very different personalities.
But one of the common things is as a deputy minister you know that your minister is part of a government that’s part of the Westminster system and that that minister has been elected on a platform. Both their own commitments and the government, the party’s commitments, the platform that they laid out during the election and you know that your minister is going to have a mandate letter from the premiere. And your job as a deputy minister is to help the minister deliver on that mandate. And that doesn’t mean make you a politician by any means but to sort of steer the ship that is the ministry to allocate resources, be they intellectual resources or people or human or financial resources, to make sure that you’re helping the minister achieve the goals that they’ve committed to achieve to the premiere.
And all the while, and Jordon can probably speak to this at length, it’s a relationship. You may really get along with the minister as a deputy and you might not get along with him so well but at the end of the day you’re there to give advice, they’re the decision maker. The ministry is for the most part not the decision maker, they’re the advice giver. And you want to give the best advice possible the most objective advice possible so at the end of the day the minister and his or her staff can consider it and ultimately take it to treasury board or cabinet as the case may be. So it’s a really interesting dynamic.
And I did work with half a dozen different people who served as minister and every relationship is different and there’s that period of time where you're sort of feeling each other out. And try to develop trust because if you don’t have trust, if you don’t trust the minister or the minister doesn’t trust you, you’ve got nothing and you’re representing the whole department. So it is a very serious job and it is one that you want to put your, as a deputy minister, your whole being into. And as such a demanding job in my view you should go into the job being in the best shape of your life, be it mental health or physical otherwise because you need to deliver and help that minister deliver and it doesn’t matter what political party you’re with.
Julia: And is it frustrating if your advice is not followed?
Jordon: Yeah, it can be. But I think if you realize who the decision maker is, the minister is the decision maker or cabinet’s the decision maker, the premiere’s the decision maker. And if you understand the role of the public service, it shouldn’t be too, too, too upsetting. And quite frankly it’s the minister who goes grocery shopping on the weekend and hears from the people about this or that, not so much the public servants. It’s the minister who has a whole perspective on things so usually you give the minister an array of options and pros and cons of each option knowing that every one of those options is viable and they’ll put it through their sort of permeations and combinations and figure out what is in the public interest.
Jordon: I think all of what Tom says is bang on. I’d maybe add to that by offering the perspective, particularly in a small province, you would not always have a lawyer that’s the ministry of justice in particular but they might not always necessarily have a lawyer as a deputy either, which would be probably a little dangerous. Well, I think on Price Edward Island right now the deputy is not a lawyer. Now she would be somebody that has extensive experience, actually that person just moved on, but the pervious deputy, she would have had extensive experience particularly in the criminal justice system so I mean you can make it work.
I think your questions started out with that where is the line in the sand between the executive branch and the political branch of government and how does the minister of justice/AG kind of walk that line in those kind of scenarios. I think this is really what lawyers do, this is how lawyers make their money is you firstly need to identify where the line is. You don’t try to bend the law but very definitively where we make our money as lawyers is that we try and figure out solutions where there are road blocks. And if you can’t get your, I mean there’s not always going to be a solution, but if you can’t get your client to a place where they are prepared to kind of hear a solution or listen to you or whatever, then maybe in some way you’re not totally doing your job.
And so in that way I would say that a big part of walking that line between being the AG and minister of justice is figuring out where’s the line and what do I need to do in my role as a leader in this area sitting around the cabinet table? What do I need to do to convey to my cabinet colleagues where that line is and how we can, if there’s a problem, how we can deal with the problem, not how we can get ourselves into corners and figure out legally what positions we could find ourself defaulting to. And I think typically where things have gone wrong that’s been what’s happened is that parties have kind of maybe say egos get in the way from time to time and parties draw their lines in the sand irrespective of where the line may be. And they’re not really willing to move off of that and work towards a more solution-oriented approach.
Look, lovely put, I was always of the view particularly when the [unintelligible 00:51:04] thing was going on that as elective officials, the public, anyway it’s a bit kind of trite to say it in this way but I will, they don’t put us here to kind of tell them what the law is or tell them what we can’t do, they put us here as leaders to figure out how we can make their life better. And that’s not necessarily to say what happened in the [unintelligible 00:51:27] situation was right or wrong or whatever, I’m not here to pass judgment on that.
But I would have seen my role as minister of justice and attorney general, I’ll just give you the example, when the implementation of the decriminalization of marijuana usage came in I mean that happened during my time, it was a pretty controversial time. There were no right or wrong answers really with a lot of what had to be done but you had to give advice to your cabinet colleagues to say, “This probably will or will not pass muster, some of them would have had pretty fundamental and visceral beliefs about what should or should not be able to happen.
And you’d have to give them honest earnest advice to say, “Well, I hear, I get that that’s a problem but it may not be that we’re just going to not allow people to do that, we may need to figure out a reasonable solution. This is what the constitution would say before I look at an oak’s test approach or whatever, right?” And that’s kind of how you have to work it, right? And at a time it becomes shuttle diplomacy, what can we do, what can we make work here? And if you can’t get to a solution, it’s kind of like a mediation, if you can’t get to a solution then you really kind of need to look at what the issues are and where it’s fallen apart and kind of pull it back.
Tom: Yeah and Julia, Jordon’s talking about the line, the line between the political realm and the line between departmental or ministerial realms. Sometimes it’s said that for deputies they need to be operationally focused but politically sensitive, whereas ministers need to be politically focused and operationally sensitive. But there is a line, there’s a bit of a grey area there but that’s the relationship that hopefully you work out with your ministers such that she or he trusts you and the department. Because as Jordon just said, you’re going to be dealing with some very hot and topical issues, maybe it’s vaccination, maybe it’s the proper arrangement for a long-term care systemic PEI or Yukon and all the legal elements that go into that.
Maybe it’s cannabis as Jordon mentioned, maybe it’s MAID, medical assisted dying, you're going to deal with some pretty complex issues where there’s a variety, as Jordon says, solutions and then each minister and each government has to decide what’s best for the people of that jurisdiction. And so that relationship between the deputy and the AG is a critical one if you’re going to weave your way through some of those issues because you know your minister’s going to be working the boards on his or her side of the fence as Jordon says, shuttle diplomacy.
Jordon: One, I always found, Tom I don’t know how often you deal with these, I had a few pretty high-profile ones in my time, directed indictments, the minister could direct an indictment. And really what that is is there’s an indictable offence and somebody says, “Well, I’d like to go through a prelim” and effectively the minister says, “No, we’re not going to do that because that’s just going to make a bit of a mockery of the system.” So despite the rights that you probably have, I’m going to trump those and I’m going to say, “No, you’re not getting that privilege.” And I found those tough. In a certain way you’re judge, jury and executioner at least of a part of the process. You have a large piece of the facts but probably not enough to comfortably or definitively say where the outcome of something may be and I wrestled a lot with those few that I had that were really kind of a tough role I thought to expect of somebody. And that’s coming from somebody that had enough criminal law experience to be dangerous but if you didn’t have that background it would be super tough. You had to be very tight with your deputy and those that may be giving you advice on it.
Tom: Yeah, absolutely without a doubt.
Julia: Yeah and when I hear you talk I really like to know because I hear you talk and it seems to be a very interesting job and you seem passionate. And you get to be leaders in a very – it’s a stressful position because you need to find the best position. We know there’s no black and white in law, even less I feel like in your position, there’s a bit of grey areas. And you're dealing sometimes with people’s ego, people’s personalities so there’s so many things going on. And I would say my last question would be how do you manage to keep your good mental health and to keep away from having too much stress? Because we’ve talk a lot about this in other podcasts and I’d really like to know how you manage to deal with the position that you have that seem very demanding but also very interesting. So that will be my last question, if you’re willing to answer [laughs].
Jordon: Tom, do you want to go first?
Tom: Sure. Yeah, that’s a very important question because these are stressful jobs and particularly for ministers it’s a 24/7 job. And to be fair to deputies you go to bed at night checking your messages before you go to bed and when you wake up in the morning one of the first things you’re doing is looking at your messages. And as a minister it seems like, at least here at Yukon, there’s just constant, I’m sure it’s no different in PEI, constant, demands on their time seven days a week, some things pleasant, most things pleasant, and some things maybe not so pleasant. Yeah, the toll on your body physically, mentally, psychologically, it is a real thing. And I’ll have to say l recognize it more now than I did when I was working at that level.
But the thing that always saved me is physical activity, making sure that I was physically active on a daily basis. So for instance it could be as simple as instead of driving my car to work, riding my bike to work and at the time I had a nine-kilometer commute. So I’d say, well, on Mondays I’m going to ride my bike to and from work. Who know what the rest of the week, whether it’ll even allow that, but doing something physically active, maybe it’s walking at lunchtime, maybe it’s going to the gym right after work. But doing something that allows your mind and your body to sort of be refreshed and so that’s what has always worked and still works for me.
I’ve always played in one of the local hockey leagues and that’s a break because I love it. Going into the dressing room, nobody on the team really cares about what you do during the day, I mean they might if you were the premiere, we used to have the premiere who would referee our hockey games. But nobody really cares it’s more like, “OK, how are we going to play tonight?” So having distractions, whatever they be, it could be meditation but giving yourself that time, allowing yourself that time to do what you need to do to stay well. And I know what worked for me is as I say, if my legs were moving and my heart rate was up, that was a good anecdote.
Jordon: Now look, I think a lot of those same things applied for me. To a certain degree it’s different strokes for different folks and each person needs to figure that out for themselves. I’m fairly extroverted and so I know one thing that I really like to do would be if there was something really tough going on, and you could talk about it with somebody else, you’d figure out who you could talk about it with and talk. And I found usually if something hit you in the guts in the afternoon, by the time you were going to bed you could have talked yourself down off a ledge and you’d sleep that much better over it that evening. You knew it was a really tough problem if you had a worse pang in your gut when you woke up the next morning and you realized that you had to face it again that day, but those days weren't that frequent.
So I will say too, I actually got out of it when COVID hit, but I got into cross fit during that time. And as Tom says, that was primarily a release where both the kind of group atmosphere plus the extreme elevation and heart rate meant you didn’t have too much time to think about what your problems were at work or wherever. And you could really decompress a certain bit and kind of go from there.
And the final thing that I will say particularly for young lawyers that you have to be conscious of and everybody’s struggles to figure out I think for the first bit of time, is when you’re going through that, we’ll say change and stages in life, that you figure out what your boundaries are between work related things and your family. And I confess that I’m not awesome at that and it’s something that my wife will often remind me of and keep me in check on. She will usually very quickly remind me if I’m blind stepping in terms of the boundaries there. But the very real piece of this is that you really only get one go at things and I read just recently that there’s a quote, and I can’t remember exactly how it goes but it’s something along the lines of, I think it’s actually a Warren Buffet quote, “There are very few people that on their death bed would say they wished they’d put more time in at the office.”
So I mean I’m the kind of person, I don’t mind kind of getting my heart rate up at the office and getting engaged in an issue, but you need to also know how you can kind of let it go and not take that home. I have a 10-year-old and an 8-year-old at home, and in addition to the relationship I have with my wife, we all lead stressful lives. And if you start taking the office home, your family life and your reputation you have with your family and your kids and your community, which are all important in terms of your professional life, will suffer. So I think you, for your own good, need to figure that out at an early stage.
And I think there are lots of people that will help, whether it’s through a mentorship role, CVA’s got some great programs now, I know through our office we have some great programs and that’s not unique, I’d say most workplaces these days are gearing themselves that way. So you just need to figure out what works for you and you need to be deliberate about it, it’s not always easy to get to the gym, it’s not always easy to put the phone away when you're with the family. But you need to figure it out and you need to be pretty good to make it a priority.
Julia: Thank you very much, both of you, it was very interesting. We went in so many places, it was a very, very interesting podcast and I think our listeners will just love it.
Jordon: Well, thanks very much for the opportunity.
Tom: Thank you Julia. And Jordon, we’ll see you next month in Ottawa at a CBA meeting.
Julia: Thank you so much. Thank you to our two Every Lawyers, Tom Ullyett and Jordon Brown. Applications are still open, but not for long, you have time until the 31st of May, 2023 to join a CBA national section executive. And as you’ve seen in this podcast, this is quite awesome. And finally, do please feel free to reach out to us any time at firstname.lastname@example.org. Thank you, have a great day. And on that note, time is running out so I better get going.
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