Guilty of not being Indigenous
To the layperson, Patrick Smith not only did nothing wrong but also did everything right.
Now, of course, he must pay the price.
Asked to accept an appointment as temporary dean of the Bora Laskin Faculty of Law at Lakehead University at a time of crisis for the school, the Ontario Superior Court judge first asked his boss for her approval to take a leave, and that she ask her boss, the federal justice minister, for hers.
His boss, Chief Justice Heather Smith, wrote to Justice Minister Jody Wilson-Raybould, for her blessing. She got it, and gave her own.
At almost 69, Smith is a supernumerary judge (meaning part-time) so though she would miss him, the chief justice said, Smith didn’t count in her regular complement, and besides, some of the leave would be in the slow summer months.
The crisis at the law school was real.
Only five years old, the law faculty, with Indigenous law one of its main focuses, had lost its dean — an Indigenous American woman and legal scholar named Angelique EagleWoman — in April of this year.
She resigned after only two years in a blaze of publicity, painting herself as a “victim of systemic discrimination” and stymied by senior administration at Lakehead.
(The truth appears to be more nuanced than that, with one former staffer filing a human rights complaint against EagleWoman herself. It was settled and the terms remain confidential.)
In any case, with students graduating in June and a new crop set to arrive in the fall, the faculty’s very status — “its accreditation and its hard-won reputation,” as the chief justice wrote Wilson-Raybould — was at risk if a person of stature wasn’t immediately appointed.
Smith had the stature. He was one of the first judges appointed to the Specific Claims Tribunal Canada, a joint initiative with the Assembly of First Nations and Ottawa to provide justice for First Nations claimants. The term specific claims refers to monetary damage claims made by a First Nation against the Crown. Smith served for the tribunal’s first three years.
He is also the author of two volumes of a handbook on Aboriginal and Indigenous Law that is published by the National Judicial Institute and is used as the “bench book” by all federally appointed judges in the country. And of course, he was a judge in the Thunder Bay area for about nine years, and before that ran his law practice there.
And yes, as the CBC pointed out in another story the next day, Smith was the judge who sentenced six Indigenous leaders to jail in 2007. They were from the Kitchenuhmaykoosib Inninuwug First Nation, and despite extraordinary efforts made by Smith to see the parties negotiate a settlement, the six admitted to contempt of court for refusing to ever allow a mining company on their land. The CBC report failed to mention that on appeal, the Ontario Court of Appeal noted that all parties said on the record “they were very appreciative of the efforts made by Smith to resolve this case.”
The KI-6, as they were called, actually spent just slightly more than two months in jail.
The temporary position Smith accepted was never meant, or discussed, or contemplated to be anything other than a short-term fix: As Lakehead president Dr. Moira McPherson made clear in her letter to Smith, this was a matter of urgency.
In effect, Smith would be a placeholder so that the school could conduct a proper search for a new dean. He would buy the school some time. He would do it for free. His role would be largely ceremonial.
But when EagleWoman quit and the school announced Smith’s appointment, in the last paragraph of a lengthy CBC story mention was made of “dozens of First Nations communities across northwestern Ontario” demanding an independent probe of EagleWoman’s allegations and that Lakehead commit to appointing an Indigenous person as her successor.
At the Ottawa offices of the Canadian Judicial Council, the body of Canada’s chief and associate chief justices that governs judicial conduct, executive director and senior general counsel Norman Sabourin took notice.
He attached that CBC story to a letter he sent to Smith on May 9, warning him the appointment may attract consideration by the CJC.
This in itself is unusual; the CJC usually acts on complaints against judges, either from the public or a provincial attorney general. I wasn’t aware that part of its mandate was to instigate its own complaints for referral or investigation.
But that’s what happened here.
In short order, Sabourin referred the matter to the vice-chair of the CJC’s judicial conduct committee, Associate Chief Justice Robert Pidgeon, who promptly concluded Smith had engaged in misconduct, that it might be serious enough to warrant removal from the bench, and referred the matter to a review panel.
Smith’s lawyers are fighting back, and already have filed in the Federal Court of Canada for a judicial review of Pidgeon’s decision.
As well, Thursday they also filed for a stay of the CJC proceedings, pending the outcome of the judicial review.
The only possible sin Smith appears guilty of is not being Indigenous.
And the CJC? Well, it not only hears complaints about judges, it also starts them up. Business must be slow.