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Judge seeks to quash CJC’s discipline proceedings for his volunteer work approved by chief justice

Friday, September 28, 2018 @ 6:26 AM | By Cristin Schmitz

Can a judge be kicked off the federal bench for engaging in unpaid activity during a pre-approved leave of absence — activity for which he sought, and received, prior approval from his chief justice and from the federal Justice minister?

The Canadian Judicial Council’s (CJC) 20-year-old advisory Ethical Principles for Judges doesn’t expressly or clearly answer that question but, at least according to Quebec Superior Court senior Associate Chief Justice Robert Pidgeon, the answer is “yes.”

Patrick Smith

Ontario Superior Court Justice Patrick Smith

As a result, the associate chief justice, who is the CJC’s vice-chair of judicial conduct, recently referred to an internal review panel of the council the question whether Ontario Superior Court Justice Patrick Smith’s unpaid three-month stint this summer as the interim law dean (academic) at Lakehead University, while he was on an approved six-month leave of absence from the bench, amounts to judicial misconduct sufficient to destroy public confidence in his ability to remain a judge.

Both the leave of absence, and its purpose, were pre-approved by his chief justice, Ontario Superior Court Chief Justice Heather Smith, and unofficially by Justice Minister Jody Wilson-Raybould.

However, barely halfway through his leave of absence, the 68-year-old supernumerary judge abruptly resigned as interim law dean, and returned to his judicial duties, after he learned from the CJC that the reason the judicial council initiated proceedings against him, at its own behest, was because it considered that he had stepped into media attention — and legal and public controversy — by agreeing to temporarily take on the deanship as the fledgling law school sought a replacement for its ex-dean, Angelique EagleWoman, who had told media she quit due to her experience of racial discrimination from the university’s administration.

In reaching his conclusion that Justice Smith’s actions in taking on the post “might be serious enough to warrant” the judge’s removal, Associate Chief Justice Pidgeon explained, “I am of the view that Justice Patrick Smith engaged in misconduct by accepting a position as interim dean without considering the possible public controversy associated with the reaction from the chiefs of First Nations, and without considering the political environment or the potential effect on the prestige of judicial office.”

Associate Chief Justice Pidgeon emphasized that as interim dean, Justice Smith was the public face of Lakehead’s law faculty. Moreover, the judge accepted Lakehead’s request to take on the post while “media attention was underway.”

“It is my opinion that the situation is exacerbated by [Justice Smith’s] erroneous assessment of the risks that will continue to exist at an institution where litigation would surely come before the court of which he is a member,” Associate Chief Justice Pidgeon explained, in sending the matter on to a review panel, composed of four chief justices and one non-council member, who will decide whether the facts are serious enough to warrant the judge’s removal and thus require a formal CJC inquiry.

Brian Gover

Brian Gover, Stockwoods

In response, Justice Smith, who resumed his judicial duties Sept. 17, moved this week in Federal Court to stay the referral to the CJC review panel, pending the Federal Court’s determination of his application to judicially review Associate Chief Justice Pidgeon’s decision to send the matter on for review. Justice Smith has also requested judicial review of Associate Chief Justice Pidgeon’s refusal to reverse his decision to send the matter to the review panel, after Justice Smith indicated he was resigning from the interim deanship after learning of the council’s specific concerns in the matter.

“He cut his term short in order to try to allay the concerns of the CJC and to return to judicial duties,” explained Brian Gover of Toronto’s Stockwoods, who represents Justice Smith in the judicial review proceedings.

“He took on the role of interim dean (academic) as a matter of public service and ... in the circumstances when the Canadian Judicial Council was continuing its review and had constituted a review panel, there was good reason for him to step away from the role of interim dean and to return to his judicial duties,” Gover told The Lawyer’s Daily.

Gover called the decision to proceed with judicial discipline proceedings “unreasonable.”

“It’s unreasonable because, taken to its conclusion if this were to go very badly for Justice Smith, the end game would be an inquiry committee recommending to the minister of Justice that she seek his removal through address to both the House of Commons and the Senate. But we know that that minister of Justice approved the leave of absence for him to do precisely what he has done.”

Gover added that it is, moreover, “absolutely not” a situation in which the public would consider it has lost confidence in the ability of Justice Smith, a respected and experienced trial judge of 17 years, to render justice. “He got permission from the chief justice [and] the minister of Justice; there were conditions suggested by the chief justice’s office that he scrupulously adhered to in order to avoid anything that could result in litigation; and all of this plays out against the backdrop of a long history of Canadian judges being involved in law schools,” Gover said.

Norman Sabourin

Norman Sabourin, Canadian Judicial Council

Norman Sabourin, the CJC’s executive director and senior general counsel, told The Lawyer’s Daily “this case raises important issues of public interest. For example, as noted by Associate Chief Justice Pidgeon, did Justice Smith take advantage of the prestige of judicial office? Did the judge become improperly involved in an activity that could become the subject of litigation before his court? … When there’s controversy, there is often litigation,” Sabourin explained. “And the reason that I initiated a complaint is that there was obviously controversy at the [law school] and … it’s not for me to decide, but I was not sure whether a judge can accept a position of dean at a university in the circumstances that were described in news reports. The other issue that Associate Chief Justice Pidgeon identified was whether the judge considered the impact, or the potential impact, of his actions, on public confidence.”

Gavin MacKenzie, an expert on legal ethics and professional responsibility, told The Lawyer’s Daily that the issue in the case involves two arguable positions about the propriety of a judge accepting an unpaid position in which he is likely to be required to take a stand on an active controversy.

In MacKenzie’s view, “there may be exceptional circumstances in which a judge could be the subject of a judicial conduct hearing, in spite of the fact that the conduct complained of was approved by his or her chief justice.”

Explained MacKenzie, of MacKenzie Barristers in Toronto, “one could easily imagine circumstances, for example, where there are issues of whether the chief justice was fully informed. Every judge is personally responsible for complying with ethical obligations. Having said that, and assuming full disclosure, I would think the fact that a judge sought and obtained approval from the chief justice would ordinarily be a compelling factor demonstrating good faith on the part of the judge.”

Gavin MacKenzie

Gavin MacKenzie, MacKenzie Barristers

MacKenzie did not take issue with the CJC’s decision not to initiate discipline proceedings against Chief Justice Smith, who is also a member of the council.

“If anyone is responsible for a breach of the Judges Act it is the judge who accepted a position that is arguably inconsistent with the office of a judge,” MacKenzie explained. “In my view the importance of Chief Justice Smith’s approval is that it demonstrates good faith on the part of the judge and casts doubt on whether the acceptance of an unpaid interim deanship contravenes the [Judges] Act.”

Osgoode Hall law professor Lorne Sossin, an authority on judicial conduct, said the issues in the case are nuanced.

“I find this case extremely difficult to approach in a cut and dry way,” he remarked. “It was a complicated situation. Generally, a sitting judge would not be eligible to serve as dean of a law school, but this was an exceptional situation, and specific precautions were in place to avoid embroiling Justice Smith in controversy and conflict. The motivations of Justice Smith to support the law school and its community appear beyond reproach,” he told The Lawyer’s Daily. “But that does not mean his judgment, and the judgment of those who approved the leave, lay beyond criticism. It strikes me as foreseeable that the appointment would be contentious — even on an interim basis — in light of the very serious statements about systemic racism issued by former dean EagleWoman. But [the judge] may also well have believed that his willingness to step into this role could lessen, rather than intensify, the concerns swirling around the law school and the university at that time.”

In his reasons for referring the matter to a CJC review panel, Associate Chief Justice Pidgeon said he considered the relevant question to be whether Justice Smith properly took a leave of absence in light of the provisions of the Judges Act and his ethical obligations as a judge.

He observed “the question is not whether Chief Justice Heather Smith lawfully or reasonably exercised her discretion under para. 54(1)(a) of the Judges Act. … In my view, Chief Justice Heather Smith’s consent and support for Justice P. Smith’s leave of absence, and the Justice minister’s apparent lack of concern, are simply factors to be weighed in assessing the nature and gravity of Justice P. Smith’s conduct and whether this conduct is appropriate.”

Chief Justice Smith granted the special leave, only after seeking and taking legal advice from a senior independent counsel and making the leave subject to 11 conditions, including that the judge be particularly sensitive in making any public statements and not be involved in any fundraising. The chief justice indicated she was concerned to assist a new law school, one of whose main purposes was to provide training to Indigenous lawyers and to teach Indigenous law.

Justice Smith, who sits in Thunder Bay, was solicited by the five-year-old law faculty to become interim dean because of his wide experience as a trial judge and his expertise in Indigenous law. His role was to provide “leadership and continuity of programs and services.”