Judicial council saga not quite over

When earlier this month a review panel of the Canadian Judicial Council decided it would not go after Ontario Superior Court Judge Patrick Smith’s job after all, it may have seemed as if this unpleasant chapter of the council’s modern history was over.

But it isn’t, either in the Smith case in particular or in the larger, ongoing cat fight between the judicial council and the Federal Court of Canada, wherein, basically, the council says it is accountable to no one, and the Federal Court says whoa, yes you are.

The Canadian Judicial Council comprises 39 senior chief and associate chief justices and has the power to investigate all federally appointed judges in the country.

The Smith case was a public relations disaster for the council.

He of course is the Thunder Bay judge who was asked to step in on a temporary basis this spring when the fledgling law school at Lakehead University suddenly lost its dean, Angelique EagleWoman, the first Indigenous person to hold that title in Canada, amid a maze of bad publicity.

She alleged at the time she was a “victim of systemic discrimination” at the school and indeed, is now suing Lakehead, seeking a total of $2.67 million, for “constructive dismissal and racial discrimination.”

Her abrupt departure, at a law faculty only five years old and with Indigenous law as its focus, left the school in crisis.

Dr. Moira McPherson, the Lakehead president, wrote Smith and begged him to accept a temporary position as interim dean to buy the law school the necessary time to conduct a proper search for a successor and, inferentially, to quell the roiling waters left behind by EagleWoman’s departure by lending his excellent reputation and gravitas to the school.

Smith did everything right: He asked his boss, Chief Justice Heather Smith, for her blessing; the chief justice in turn asked Justice Minister Jody Wilson-Raybould for hers, and with Wilson-Raybould having no concerns, Smith gave Judge Smith the go-ahead.

It was a non-paying position; Smith would take a leave; he was already a supernumerary judge, meaning part-time, so his absence wouldn’t devastate the strength of the court.

Then, out of the blue, with no complaint or complainant before it, the judicial council’s executive director and senior general counsel, Norman Sabourin, sent Smith a letter, warning him the appointment may attract consideration by the council.

Sabourin attached a CBC story about Smith’s appointment that mentioned in its last paragraph that dozens of First Nations communities across northwestern Ontario were demanding an independent probe of EagleWoman’s allegations (none of which had anything to do with Smith) and that Lakehead commit to appointing an Indigenous person as her successor. This in itself was highly unusual, in that the judicial council usually acts on complaints about judges either from the public or a provincial attorney-general. Here, it was instigating its own complaint, and from a press report no less.

In any case, in short order, Sabourin referred the matter to the vice-chair of the council’s judicial conduct committee, Associate Chief Justice Robert Pidgeon, who promptly concluded Smith had engaged in misconduct that might be serious enough to warrant his removal from the bench, and referred the matter to a review panel.

There was a tremendous, and righteous, backlash.

First, Smith took immediate steps to resign as interim dean after only three months on the job. His lawyer, Brian Gover, filed an application in the Federal Court, seeking review of the judicial council decision.

Various judges’ associations — the Canadian Superior Court Judges Association and the Ontario Superior Court Judges Associations, which represent all but a handful of the federally appointed judges in Canada — signed on as interveners on behalf of Smith.

Lawyers in Thunder Bay wrote a letter to the local paper, calling the suggestion that Smith had behaved badly and now might face removal, “outrageous.”

Most important, Senator Murray Sinclair, a former appeal court justice and one of the country’s most distinguished First Nations leaders, wrote the council, saying he was “deeply troubled” by the review of Smith’s conduct, and revealed that Smith had sought his advice before accepting the position.

“Knowing Justice Smith and his deep experience in Indigenous law as I do, I encouraged him to agree to the appointment … In my opinion, he acted according to the highest standards of the judiciary.”

So then, when the judicial council review panel released its decision on Nov. 5, what did it do but issue what Smith’s lawyer, Gover, calls “a dirty acquittal.”

In other words, the judicial council found that Smith shouldn’t have accepted the appointment — because it was “fraught with risk and controversy” and could have exposed him to criticism and publicity “inconsistent with the dignity of judicial office” — but that his conduct wasn’t “serious enough to warrant his removal as a judge.”

Gover is proceeding with an amended application for judicial review at the Federal Court, seeking a declaration that Smith did not contravene the Judges Act and that he was denied procedural fairness throughout the process. The two judges associations are seeking to remain as interveners.

But the judicial council, in another matter, is already appealing a Federal Court ruling that it is even subject to judicial review.

That’s a very complex matter involving another judge and with five years of history. But it does raise the question: If the Federal Court were to grant the declarations Smith seeks before it decides the larger question of whether the council is accountable to anyone but itself, would the council even acknowledge a rap on the knuckles?

If the Canadian Judicial Council falls in the Federal Court forest and doesn’t acknowledge the forest, does it even fall?