The panel referred the case to senior associate chief justice Robert Pidgeon, who agreed with the panel. Though the conduct review panel found Smith violated s. 55 of the Judges Act by bringing his judicial position into an area of public debate and controversy, he will not be removed from the bench.
Smith, a supernumerary judge from Thunder Bay, was given leave to take up an interim role as dean of the Bora Laskin Faculty of Law at Lakehead University, after the former dean resigned and accused the school of systemic racism. Indigenous leaders criticized the school for appointing the non-Indigenous Smith, who resigned as the CJC initiated a review.
“My client and I are very pleased that the Canadian Judicial Council has recognized that no further action should be taken and that Justice Smith was motivated throughout to serve the university and that he acted in good faith,” says Brian Gover, Smith’s lawyer and partner at Stockwoods LLP.
“On the other hand, we are still quite concerned about the unsatisfactory process that the Canadian Judicial Council has followed here.”
Gover is dissatisfied with the panel’s decision to issue its decision while there was an outstanding application for judicial review and says he has a motion to stay the decision that constituted the review panel in the first place. That motion was scheduled for last month but adjourned to Nov. 20.
Gover says the CJC ignored the principle that tribunals such as itself should “stand down” while there’s an outstanding court application. He plans to proceed with an application for judicial review, amended to include an application to quash part of the CJC’s Nov. 5 decision. They are also seeking to have the CJC produce its entire file on Smith.
The view that Smith involved his judicial office in an area of public debate and controversy “just lacks an air of reality that that assertion really lacks any foundation in the facts,” Gover says.
“My client, of course, has had this hanging over his head for some time and no criticism of him is warranted at all.” he says. “This decision really calls into question what judges can do in their personal lives.”
The CJC review panel found Smith in violation of s. 55 of the Judges Act, which requires a judge not “directly or indirectly . . . engage in any occupation or business other than his or her judicial duties” but must devote themselves “exclusively to those judicial duties.”
Smith’s role as law dean was “incompatible with judicial office,” says Norman Sabourin, executive director and senior general counsel of the CJC.
“Essentially, the very notion of being involved in societal debates other than those that are around the administration of justice proper are just not consistent with the dignity of judicial office,” he says.
In April, Angelique EagleWoman resigned as dean of the Bora Laskin School of Law at Lakehead University, saying she was the victim of systemic racism at the law school. Then, in May, Smith was appointed as interim dean. Some criticized the move, including Derek Fox, deputy grand chief of the Nishnawbe Aski Nation. Fox said the school failed to consult Indigenous groups and cited Smith’s sentencing of a chief and other members of northwestern Ontario’s Kitchenuhmaykoosib Inninuwug Council to prison for contempt of court for protesting mining development in their territory.
Smith resigned from his interim position as the CJC began a review and stated he might be removed from the bench.
The review panel said Smith has an ethical obligation to avoid becoming embroiled in a public controversy, which could tarnish the dignity of judicial office and could lead to litigation coming before the court of which he is a member.
“The review was created by the fact that there was a lot of reporting in the media about the general situation at the university and allegations that there were big problems,” Sabourin says. “Therefore, getting involved in such a dynamic, as the panel has identified, was problematic to begin with.”
The review panel also found fault in the fact that the status of Smith’s judicial role was being used to enhance the prestige of the school. The review report states as a limitation on a judge’s extrajudicial activities avoiding the perception that the judge is lending their status to raise the credibility of an outside organization.
“The appointment of Justice Smith of dean was clearly made for the purpose of benefiting the institution from the prestige of judicial office and the reputation of the Ontario Superior Court and that is highly problematic,” Sabourin says.
Section 55 of the Judges Act prohibits a judge from an occupation or business outside their judicial duties, but Lee Akazaki, partner at Gilbertson Davis LLP, says the panel took much too narrow a view of a "judicial duty."
“Law school belongs to a continuum that leads to the legal profession [and] your membership in the legal profession, and the court has a duty to regulate lawyers,” he says.
“It's part of the legal system, because unless you go to a Canadian law school, graduate and serve your articles, you cannot become a lawyer,” he says.
Akazaki says this raises the question: If a judge cannot teach at a law school, does that mean that judge cannot teach professional development programs either?
The argument that Smith exposed himself to public controversy that could result in litigation was not persuasive to Akazaki either, who says many things in life could potentially result in litigation.
“When the judge is driving home from work, there's always the potential to get into an accident, and from accidents, you get lawsuits. It is a matter of participating in life that exposes you to potential legal liability or potential litigation in the abstract,” he says.
Section 54 of the act dictates that a judge must gain approval from the chief justice of the Superior Court for a leave of absence under six months and must notify the federal minister of justice and provincial attorney general. Smith did both of those things, but the CJC says that does not relieve him of his s. 55 duties, which prohibited him from taking the Lakehead position.
Sabourin says it is not up to the minister of justice or chief justice to decide that a judge can be relieved of his duties; only Parliament can do that through a legislative change. But Smith’s getting their approval did lead the review panel to decide he was well intentioned and acted in good faith.