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A judge is facing the possibility of being removed from the bench for accepting a law school’s request to become its temporary dean. But Justice Patrick Smith of Ontario Superior Court is fighting back, asking a court for an immediate halt to the Canadian Judicial Council’s disciplinary process.

Indigenous leaders had criticized the hiring of Justice Smith last spring, saying the interim dean at Lakehead University’s Bora Laskin Faculty of Law in Thunder Bay should have been aboriginal.

The judicial council, a disciplinary body of chief and associate chief justices, says Justice Smith should have known when he took the job he was putting himself into the middle of a controversy, and the possibility of a legal case involving his own court, thereby potentially harming the public’s respect for judges.

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In a filing in the Federal Court of Canada, Justice Smith describes the complaint against him, and the manner in which the judicial council has investigated it thus far, as unreasonable.

The 68-year-old, who has 17 years on the bench and is supernumerary, or semi-retired, is seeking a stay of the disciplinary process, while he asks the Federal Court to conduct a judicial review of the matter. A judicial review is a court’s look at the fairness of an administrative body’s proceedings.

“This appears to be an exercise in second-guessing by the Canadian Judicial Council,” Toronto lawyer Brian Gover, who is representing Justice Smith, said in an interview.

Before Justice Smith took the job, Mr. Gover said, the judge asked Superior Court Chief Justice Heather Smith for permission for a leave of absence to take on the job, and through her, also asked federal Justice Minister Jody Wilson-Raybould. Chief Justice Smith then told the Justice Minister that the law school, which specializes in Indigenous law, small firm practice and environmental issues, was at risk of losing its accreditation unless it could find a leader of “stature and gravitas,” according to the judge’s filing at Federal Court. The chief justice granted permission, and the Justice Minister said she had no concerns.

The case is the second recent dispute between judges and the judicial council at the Federal Court. Federal Court Justice Simon Noël issued a scathing ruling in August upholding the right of judges to judicial review of CJC decisions. The CJC had said the Federal Court has no authority over it. Justice Noël accused the body of chief justices of attempting to become a law unto themselves.

The dean’s job became vacant last spring after the resignation of former dean Angelique EagleWoman, who is Indigenous. She had made public allegations of systemic racism at the university.

No one complained to the judicial council when Justice Smith became interim dean, but media reports of native leaders criticizing his appointment led the judicial council’s executive director, Norman Sabourin, to initiate an investigation. That led to a review by Associate Chief Justice Robert Pidgeon of Quebec Superior Court, the vice-chair of the judicial council’s conduct committee.

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“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,” he said in a written ruling. He referred the matter to a panel of four judges and a layperson that could in turn call a public inquiry.

In an interview, Mr. Sabourin criticized Justice Smith for spending public money on a legal challenge aimed at shutting down the process. The council believes the Federal Court has “very little jurisdiction, if any” – it is appealing the court’s August ruling on the issue – but in any event, Justice Smith should have waited for the outcome of the proceedings, Mr. Sabourin said, adding that the judge has “ample opportunity to make his case” to the council.

Justice Smith withdrew as interim dean in August, in the face of the judicial council’s investigation. The school’s website, under Interim Dean, still shows his photograph and biography.

From 2009 to 2012, Justice Smith served on the Specific Claims Tribunal, an independent body of up to six superior court judges, adjudicating First Nations’ damage claims against the Crown. He is the author of two volumes of a “bench book” providing guidance to judges on Indigenous Law.

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