Ontario judge facing removal
Censure possible for taking an Aboriginal’s job
An Ontario Superior Court judge is facing removal from the bench basically because he’s not Indigenous.
That’s the crux of a recent move by the Canadian Judicial Council to examine Judge Patrick Smith’s alleged misconduct for accepting a temporary unpaid appointment as acting dean of the Bora Laskin School of Law at Lakehead University in Thunder Bay.
Smith was asked to step in to solve a crisis when Angelique EagleWoman quit the dean’s job, calling herself a “victim of systemic discrimination” and blasting the university for allegedly thwarting her efforts.
Smith took the job only after asking for and getting the blessing of his own chief justice, Heather Smith (the two are not related), and of federal Justice Minister Jody Wilson-Raybould, the country’s first Indigenous justice minister.
It was always meant to be an interim appointment, with Patrick Smith effectively acting as a placeholder until the university could conduct a full hiring process for a new permanent dean.
The judicial council had no complaint about Smith, nor is there a complainant other than Norman Sabourin, the executive director and senior general counsel of the council itself.
The council is comprised of 39 senior justices and chief justices and has the power to investigate them.
Sabourin was reacting to a May 3 CBC website report about Smith’s appointment, in which unnamed local Indigenous leaders were described as demanding that an Indigenous person be appointed as dean, this amid the fiery exit of EagleWoman in April.
About two weeks later, despite getting lengthy explanations from Smith and his chief justice, Sabourin referred the matter to Chief Justice Robert Pidgeon, vicechair of the judicial council’s judicial conduct committee.
According to federal court documents, Pidgeon concluded Smith had engaged in misconduct by taking the job “without considering the possible public controversy associated with the reaction from the chiefs of the First Nations and without considering the political environment or the potential effect of the prestige of judicial office.”
On Aug. 28, Pidgeon concluded the matter might be serious enough to warrant Smith’s removal from office and referred the matter to the review panel.
Smith took immediate steps to resign as “Interim Dean (Academic).”
His lawyer, Brian Gover, Monday filed an application in the Federal Court of Canada, seeking judicial review of the council’s decision. The council has not yet filed a response.
The fact that the judge is in danger of removal is a sobering illustration of the old “no good deed goes unpunished” saying.
Smith was asked “on an urgent basis” if he’d take the job in the wake of EagleWoman’s sudden and controversial departure.
The request came April 16 from Dr. Moira McPherson, who was then the interim Lakehead president and who has since been formally sworn in as the president. The role she described was largely ceremonial, but would allow the fledgling law school to maintain stability while it conducted a full-fledged search for a successor.
The Lakehead law faculty was founded only in 2013, with a particular focus on Aboriginal and Indigenous law and on Indigenous students.
Smith immediately wrote Chief Justice Smith, requesting her approval and that of Wilson-Raybould.
Chief Justice Smith wrote to the justice minister, explaining that the school’s law faculty “was in crisis and if a leader of ‘stature and gravitas’ was not immediately appointed, the faculty could lose its accreditation and its hard-won reputation,” according to the court documents.
She allowed that it was an unusual request and that her court’s resources were strained, but said she saw the situation as “an opportunity for the court to respond positively to a number of the Truth and Reconciliation Commission recommendations.”
She also pointed out that because Smith, who has been a judge in Thunder Bay since 2001 and practised law there before that, is “supernumerary” (part-time), he didn’t count as part of the court’s regular complement of judges.
On April 27, the Federal Court document says, Wilson-Raybould wrote the chief justice back, granting approval for the proposed leave, saying she had “no concerns” about it and offering to extend it if it became necessary.
Smith started a six-month leave on June 1. His role was “to be limited to academic leadership” and he agreed to delegate administrative authority to others.
But on May 9, Sabourin first warned that the appointment “may warrant consideration” by the judicial council, the court documents say. In his complaint, he attached the May 3 CBC story, which in the last paragraph noted that after EagleWoman’s resignation, “dozens of First Nations communities” across northwestern Ontario called for “immediate change” at Lakehead and demanded the school commit to appointing an Indigenous person as EagleWoman’s successor.”
Both Smith and his chief justice answered Sabourin and, later, Pidgeon’s concerns, with the chief justice even getting a legal opinion from former deputy Ontario attorney general that what Smith was doing was fine and that he wasn’t breaching any ethical guidelines.
But Pidgeon cited the judicial council’s Ethical Principles for Judges, which says they should avoid involvement in causes or organizations that are likely to be engaged in litigation.” He said Smith had “erroneously weighed” the risks by taking the job.
Yet Gover says in his application for judicial review that “in all the questions Mr. Sabourin and Chief Justice Pidgeon” had asked Smith, “they never asked whether he had considered those potential risks or what steps he had taken to address them.”
He said Pidgeon’s conclusions show “a profound misunderstanding” of the situation, particularly Smith’s experience in Indigenous law and “his sincere motivation to protect the Faculty of Law’s hard-won accreditation and reputation and to meaningfully advance its efforts at reconciliation with local Indigenous groups.”