THUNDER BAY — Federal and provincial judges' associations are lining up behind Thunder Bay Superior Court justice Patrick Smith in his bid to overturn a rebuke from the Canadian Judicial Council.
The Attorney General of Canada is also intervening in the case, saying the CJC adopted an "unreasonably restrictive" interpretation of the Judges Act which states federally-appointed judges shall not engage in any occupation or business other than their judicial duties.
Comprised of the country's chief justices and associate chief justices, the CJC's mandate includes reviewing complaints against judges.
In November 2018 it issued a letter reprimanding Smith for having accepted an unpaid post as Dean of the Lakehead University Faculty of Law
Smith, who was semi-retired, had been approached by the university to fill in while it looked for a successor to Angelique Eaglewoman after she resigned in April 2018, alleging systemic racism at the university.
He took a leave of absence from the bench only after receiving approval from both the Ontario Superior Court Chief Justice and the federal Justice Minister, Judy Wilson-Raybould.
Wilson-Raybould wrote that she had "no concerns."
However, when the appointment became public, it was criticized by First Nations leaders who said they should have had input.
They also cited Smith's 2008 ruling which sent six members of Kitchenuhmaykoosib Inninuwug's council to jail for contempt of court during a dispute over mining activity near Big Trout Lake.
Two weeks later, the CJC sent Smith a letter advising that his acceptance of the post "may warrant consideration" by the council. Although it had not received a formal complaint, the CJC attached to the letter a copy of a news report about the concerns of Indigenous leaders.
When the council informed him the matter was being referred to its Conduct Review Panel, Smith stepped down as the law school dean at the end of August 2018, after serving only three months of a six-month term, and returned to the bench.
He also brought forward an application for judicial review of the CJC's decision, but the council declined to wait for it to be heard.
Its panel then ruled that although Smith had done nothing to warrant his removal from judicial office, he had "had an ethical obligation to avoid involvement in controversy or public debate, as those could expose him to political attack or be inconsistent with the dignity of judicial office."
He received a letter calling his actions "ill-advised."
Justice Smith argues the CJC's actions were 'an abuse of process'
In a hearing scheduled for later this month in Federal Court in Toronto, Smith's lawyer, Brian Gover of Stockwoods LLP, will ask for a ruling that Smith did not contravene the Judges Act when he agreed to help Lakehead University in a time of crisis, and that the CJC's actions were an abuse of process.
He will also ask that the Letter of Concern the council issued to him be quashed.
"The Council's entire investigation of this matter was misguided and overzealous," a submission to the court states.
It says the CJC's interpretation of the Judges Act "would put at risk of judicial discipline every federally-appointed judge who engages in activities outside the courtroom that contribute to the legal profession or their communities."
The submission adds that "to help restore Justice Smith's reputation," the CJC should be ordered to "correct its public communications about this matter to conform with the Court's decision."
In its intervention, the Ontario Superior Court Judges Association says Smith "acted out of the highest motives and governed his conduct by openly and carefully consulting with his Chief Justice to ensure the appropriateness of his actions."
The Canadian Superior Court Judges Association, in its submission, says it believes the CJC's interpretation of the Judges Act is problematic in a number of respects, including its inconsistency with the council's own Study Leave Program.
It notes that the program permits judges to take academic leaves longer than six months to engage in teaching, talks with faculty, curriculum development, organizing conferences, guest lectures, and discussions with students.
"During the leave, judges are performing these functions full-time, not their judicial function. If [the CJC's] Review Panel was correct, each of the judges who participates in this program would be performing functions incompatible with their judicial role, and in breach" of the Act.
"This obviously cannot be the case," the judges' association concludes.
In an interview with Tbnewswatch, Gover described the case as important for judges across Canada, because the CJC has called into question their ability to do anything other than judging.
"And, in particular," Gover stated, "it divorced them from the community in a way that makes it impossible for them to be alive to issues of social context, for example, which they are called upon to do when they adjudicate cases involving the Charter of Rights."
The CJC's submission to the Federal Court is not available as yet.
