Canadian Judicial Council acted with extreme unfairness in public rebuke of Justice Patrick Smith, judge rules

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A judge has ruled that a body of Canada’s top jurists acted with extreme unfairness in publicly rebuking a judge for taking on an unpaid, temporary post as dean of a troubled law school.

The ruling on Thursday in the case of Ontario Superior Court Justice Patrick Smith was a condemnation of the Canadian Judicial Council, a disciplinary organization of chief and associate chief justices. “I find that the CJC process involving Justice Smith was unfair to the point that it is contrary to the interests of justice. It was an abuse of process,” Federal Court Justice Russel Zinn wrote.

Justice Zinn’s ruling, which fully exonerated Justice Smith, means that federally appointed judges may take on volunteer activities outside of the bench, such as teaching courses or becoming involved with civic groups.

In the spring of 2018, Justice Smith was asked by the head of Thunder Bay’s Lakehead University if he would help its Bora Laskin Faculty of Law through a difficult time. Its previous dean, Angelique EagleWoman, had resigned, and accused the school of racism. Justice Smith, who has been a judge since 2001, said in a legal document he feared the law school had been in danger of collapse.

The council’s executive director, Norman Sabourin, filed a complaint against Justice Smith, citing an online story from earlier in May that said Indigenous leaders had asked Lakehead to appoint an Indigenous successor to Ms. EagleWoman. There were no complaints from the public against Justice Smith.

Later in 2018, a review panel of the judicial council found Justice Smith guilty of breaching his ethical duties for taking a post it said could have exposed him to public controversy, thus harming the justice system’s reputation. Because he had left the volunteer post as the complaint against him was under way, he was not otherwise punished.

Justice Smith had received permission to take the post from the chief justice of his court, Heather Smith, and then federal minister of justice, Jody Wilson-Raybould, Justice Zinn found. ”If his decision was ill-advised, what does that say of the decisions of his chief justice and the minister of justice?” It was as if, he said, a teenager who had received parental permission to extend his curfew were punished for having done so.

So strict was the position of the judicial council – that judges should use their “productive” time only to be judges – that Beverley McLachlin could have been disciplined for writing a mystery novel while she was still chief justice of the Supreme Court, wrote Justice Zinn.

He ordered the judicial council to post his ruling on its website and to refer to it whenever it mentions Justice Smith in any report or discussion from here on.

Brian Gover, a lawyer representing the judge, said the process had taken a toll on Justice Smith, but that he is “delighted” by the ruling. “He’s been vindicated. He really sought to do the right thing here when he was asked to assist the law school in a time of crisis.”

Mr. Gover said he is asking the judicial council for an apology. Justice Smith, who is still a sitting judge, declined to be interviewed.

Johanna Laporte, a spokeswoman for the council, said it needs time to review the ruling before commenting. A spokeswoman for Chief Justice Richard Wagner, who chairs the judicial council, gave the same reply.

Federally appointed judges are guided by two documents: the Judges Act, which bars them from taking on a “occupation or business” outside their judicial duties; and voluntary ethical principles in a CJC document urging them to steer clear of controversy, in their activities away from their bench.

A review panel of the judicial council found that “occupation” includes unpaid duties, a finding Justice Zinn mocked: “In response to the question, ‘What is your occupation?’ I daresay the response of [the] four members of the review panel would be ‘judge’ – a paid occupation.”

He said the council had so badly misinterpreted the federal Judges Act that he wondered whether it had engaged in “reverse engineering” to achieve the result it wanted in Justice Smith’s case.

As for the ethical principles, Justice Zinn said they are a voluntary code, and expressly allow for the possibility of disagreement.

Justice Zinn began his ruling in an unusual way, with an assessment from the late journalist Christie Blatchford: “The fact that Judge Patrick Smith is in danger of removal is a sobering illustration of the ‘no good deed goes unpunished’ saying.”

The council had argued that its decisions made by multiple judges carry more weight than a review by a lone judge. Justice Zinn replied that two judges’ associations, which intervened in the case, and the Canadian justice department, agreed with him with that the council’s rebuke had been unreasonable. In any event, he wrote, quality is what matters, not quantity.

The Smith case is the latest in which the CJC has drawn fire from the Federal Court. In two previous cases, the CJC argued unsuccessfully that the courts have no authority to review its disciplinary proceedings. In one instance, a Federal Court judge accused the council of becoming a law unto themselves in the disciplining of judges.

Last summer, the Lakehead law school hired Jula Hughes, a professor at the University of New Brunswick, as its permanent dean.

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