TORONTO — A respected Ontario Superior Court justice broke the rules by accepting a temporary dean’s posting at an Indigenous law school but does not deserve to lose his job, a review concluded on Tuesday.
The review, which had sparked an intense and ongoing backlash, found that Justice Patrick Smith might have been well intentioned but should nevertheless have refused to become interim dean at Lakehead University in Thunder Bay, Ont.
“This is not a case involving bad behaviour or improper motives,” the panel of the Canadian Judicial Council concluded. “Justice Smith was motivated by a genuine desire to use his skills, background and experience to help the faculty in a time of crisis.”
According to the panel, Smith violated Section 55 of the Judges Act. Among other things, the act requires judges to devote themselves exclusively to their judicial duties and to avoid involvement in any controversy or public debate that could expose them to political attack.
Following the panel’s findings, it was left to the chairman of the council’s conduct committee, Quebec’s Associate Chief Justice Robert Pidgeon, to decide on next steps. Pidgeon said he agreed with the panel and, given that Smith had already resigned from the dean’s post, the council needed to take no further action against him.
Smith had no comment on Tuesday but his lawyer, Brian Gover, expressed dismay the council had rendered its decision despite the judge’s request to Federal Court to review the matter. The council, Gover said, should have waited for the court review, which is likely to be heard early next year.
“We expect to proceed with the application for judicial review and our motion for the production of the CJC’s entire (Smith) file,” said Gover, who called the council process “completely unsatisfactory.”
Gover had previously said the legal community was in shock at the CJC’s review and called the decision to go ahead with the investigation without a complaint a “strange irregularity.”
Norman Sabourin, the executive director of the council, said in an interview that he stood by his decision to launch the probe. Sabourin said council is obligated to act whenever judicial misconduct is suspected.
“The report of the review panel makes clear there was an issue with the judge’s conduct,” Sabourin said from Ottawa.
“It’s also beneficial that there is clear understanding now of the obligations for judges.”
Sabourin refused to comment on the judicial review issue, saying council took the position Federal Court had no jurisdiction over its proceedings. The public interest required the council to complete its work, Sabourin said.
Some Indigenous leaders objected when Lakehead invited Smith in April to take on a six-month appointment as academic dean of the Bora Laskin Faculty of Law after the previous dean, Angelique Eagle Woman, alleged systemic racism at the school and resigned.
The interim appointment, approved by the province’s chief justice and which drew no objections from the federal government, was intended to fill the role only until Eagle Woman’s permanent replacement could be found. Smith took up the post June 1 but resigned three months later.
The fact that Smith took leave from the courtroom did not remove the prohibition against carrying on extra-judicial duties, the panel said.
“Justice Smith has an ethical obligation as a judge to avoid involvement in public debate that may unnecessarily expose him to political attack or be inconsistent with the dignity of judicial office,” the review panel said in its report.
“There were also reputational risks to Justice Smith and to the Ontario Superior Court of Justice associated with lending their support to the faculty of law at Lakehead during a time of crisis.”
At the same time, the panel decided the conduct was not serious enough to warrant his removal from the bench.