An Ontario judge is fighting back against a disciplinary body’s ruling that found he cast a shadow on his profession by accepting a temporary dean post at a northern university’s Indigenous law faculty.
Superior Court Justice Patrick Smith has filed an application in Federal Court seeking a stay of the decision from the Canadian Judicial Council that could ultimately lead to his removal from the bench.
Quebec Associate Chief Justice Robert Pidgeon, vice-chair of the council’s judicial conduct committee, issued a ruling last month that criticized Smith’s decision to accept the interim post at Lakehead University in Thunder Bay, Ont.
The university asked Smith to fill in as Interim Dean Academic at its Indigenous law faculty after the previous dean levelled allegations of systemic racism at the school and stepped down from her post.
A chief justice at the Ontario Superior Court gave Smith permission to accept the six-month contract, a decision that federal Justice Minister Jody Wilson-Raybould was aware of and had no concerns with.
But Pidgeon’s ruling said Smith had engaged in misconduct by wading into a potentially controversial situation and recommended the council set up a review panel to assess the case further.
The Canadian Judicial Council said Thursday that it takes its responsibility to inquire into questions relating to a judge’s duties very seriously.
“We believe that all judges would benefit from clarity in this regard,” said executive director Norman Sabourin.
But Smith’s lawyer Brian Gover said the disciplinary body overstepped by questioning a move that was approved from the highest ranks of the justice system.
“I do regard it as unfortunate that the Canadian Judicial Council has become involved in what I consider to be an exercise in second-guessing,” Gover said in an interview. “He obtained permission from the chief justice and … the Minister of Justice.”
According to Smith’s Federal Court notice of application, the long-time judge was approached about an opening at Lakehead in April.
At that time, the school’s interim president said the university needed someone to step into the role of interim dean of the Bora Laskin Faculty of Law “on an urgent” basis following the abrupt resignation of Angelique Eagle Woman.
Eagle Woman stepped down after accusing the university of trying to thwart her work and accused the school of systemic racism, an allegation Lakehead has denied.
Smith asked a chief justice with the Superior Court to approve a six-month secondment to the university, a request she forwarded to Wilson-Raybould. The federal minister said she had no issues with the request, according to the application.
“Minister Wilson-Raybould indicated that she had ‘no concerns’ about the special leave,” the application said. “In fact, the minister indicated that in the event that a leave of more than six months was required, she would consider further requests for additional leave.”
About two weeks later, however, the application said Smith heard from Sabourin, the council’s chief administrator, who indicated there may be a closer look at the interim appointment.
Sabourin did not reference a specific complaint, Smith’s application said, but instead linked to a news article chronicling complaints from those who felt that an Indigenous person should have been named to replace Eagle Woman.
Smith’s contract explicitly stated that he would be filling the role only until Eagle Woman’s permanent replacement could be found, the application said.
The judge’s application said he sought legal advice and took steps to limit his powers and responsibilities at the university before taking on the interim dean role on June 1.
On Aug. 28, however, Pidgeon issued his ruling, prompting Smith to resign that post.
Pidgeon’s decision referenced a council principle stating judges should “avoid involvement in causes or organizations that are likely to be engaged in litigation” and said Smith failed to do 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 the First Nations and without considering the political environment or the potential effect on the prestige of judicial office,” Pidgeon’s decision said.
Smith’s application described the decision as “unreasonable” and alleged that Pidgeon never asked to what degree Smith had weighed the risks of the temporary appointment.
The review panel Pidgeon has recommended the case to has the authority to decide whether or not the matter should go before an inquiry committee, Smith’s lawyer said. That committee, in turn, would be the one to rule on whether or not the judge should be removed from office.