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Scott Hutchison is a lawyer and senior partner with Henein Hutchison.

The Canadian Judicial Council’s review of an Ontario judge’s actions suggests that there is something wrong with the body that disciplines our country’s most senior judges. More broadly, it raises issues about the council’s assertion that its decisions are immune from judicial review.

The troubling narrative began last April, when Lakehead University’s law school was plunged into controversy. Its dean, Angelique EagleWoman, resigned, accusing the university of systemic racism. An American Indigenous scholar, she was the second dean to resign at a law school that came into existence in 2013. The university’s president then asked Justice Patrick Smith, a respected and senior judge based in Thunder Bay, to temporarily take on the dean’s role during the search for a permanent replacement.

For many, Justice Smith was a wise, even obvious, choice to bridge this gap.

Indigenous law forms a key part of the law school’s curriculum and its broader mission as an institution. Justice Smith has strong credentials in that field. He wrote a key guidebook on Indigenous law that is relied on by judges across Canada and spent five years as a member of a specialized group of judges that adjudicates claims made by First Nations groups.

Before agreeing to take on the role, Justice Smith obtained permission from his chief justice, a decision that federal Justice Minister Jody Wilson-Raybould was aware of and had no concerns with. He also obtained advice from Senator Murray Sinclair.

On June 1, Justice Smith became the law school’s interim dean.

Meanwhile, a local association of First Nations criticized the university’s decision to invite Justice Smith to take this interim appointment, citing a lack of consultation. In a move apparently prompted by an item posted on CBC’s website that mentioned this isolated criticism, and in the absence of any actual complaint to it, the council took it upon itself to launch a review.

In late August, the council’s Judicial Conduct Committee’s vice-chair, Quebec Superior Court Senior Associate Chief Justice Robert Pidgeon, decided that Justice Smith had engaged in misconduct sufficiently to potentially warrant his removal from judicial office. How? By accepting the interim dean position “without considering the controversy associated with the reaction from chiefs of First Nations, and without considering the political environment or the potential effect on the prestige of judicial office.”

On learning of this decision, Justice Smith promptly resigned as interim dean and returned to his judicial duties. Chief Justice Pidgeon refused a request to reconsider his decision and Justice Smith's lawyer, Brian Gover, has now applied to Federal Court for judicial review.

The council – repeating a questionable claim it has made on other occasions – contends that it is immune from judicial review. It seems more than a little ironic that an institution dedicated to fostering judicial independence and integrity would take the position that its decision-making processes should be exempted from the sort of review that is common for such bodies (a claim twice rejected by the Federal Court).

The Smith case underscores why judges, like everyone else, need access to the courts to review the council’s actions. Judges from across Canada agree. Two associations that speak for almost every federally appointed judge in the country are seeking to intervene in the judicial review application.

While the council claims this case provides an opportunity to test “the permissible scope of activities for judges outside their normal judicial duties,” ‎prominent people see it differently.

As reported by The Globe and Mail, Senator Sinclair has written, calling on the council to carefully reflect on its role and mandate, and put an end to its review.

The chair of Lakehead University’s board of governors, Ross Murray, published an open letter, thanking Justice Smith and expressing upset and sadness about the council’s actions.

Justice Smith is almost 69 years old and is a supernumerary (semi-retired) judge. The full-retirement age is 75. It seems profoundly unfair that he should face removal proceedings for what he has done.

It also seems especially unfair and ham-handed for the council to use removal proceedings for its professed purpose of providing clarity for other judges about the permissible scope of extrajudicial activities.

Before this review arose, the council’s chair, Chief Justice Richard Wagner, committed to reforming the judicial discipline process. The Smith case makes it obvious that such a review is long overdue. It is time for the council to take a hard look at itself.

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