A judge who filled in as interim law dean at Lakehead University could be facing removal from the bench for accepting that role.
Justice Patrick Smith, a 17-year judge on the Ontario Superior Court of Justice, is the subject of a Canadian Judicial Council review panel after a finding was made that accepting the job could be serious enough to no longer sit as a judge.
The council’s vice chair determined Smith engaged in misconduct by accepting the position “without considering the possible public controversy associated with the reaction from the chiefs of First Nations and without considering the political environment or the potential effect on the prestige of judicial office.”
Lawyers representing Smith filed an application in federal court earlier this week, seeking to quash the decision to order the review.
Lakehead in early May announced Smith’s appointment to take over from former dean Angelique EagleWoman, who had previously resigned amid allegations of systemic racism directed at the university that she said thwarted her efforts.
Smith had been contacted by interim university president Moira McPherson in April to consider the appointment. He then requested approval from Superior Court Chief Justice Heather Forster Smith to take a leave of absence for role. The chief justice was also asked to seek permission from federal Justice Minister Jody Wilson-Raybould.
“Although Chief Justice (Heather Forster) Smith noted this was an ‘unusual’ request, and that the court’s judicial resources were already significantly stretched, she nevertheless viewed this is as an exceptional situation and an opportunity for the court to respond positively to a number of the Truth and Reconciliation Commission recommendations,” the federal court filing reads.
The request was also approved by Wilson-Raybould, who the federal court filing noted had “no concerns” about the leave.
Smith accepted the position, which was to be effective June 1 and continuing until November. The justice minister was said to have indicated that consideration could have been given to extending the leave beyond the initial six months.
The job description was limited to academic leadership. Smith was not to accept pay from the university and he was to delegate administrative authority, including recruitment, financial decisions and academic appeals to other members of the faculty of law.
Indigenous leaders had called on the university to appoint an Indigenous dean to replace EagleWoman, who had gained national attention at the time of her firing as the first Indigenous woman to lead a faculty of law in Canada. They subsequently slammed Smith’s appointment, pointing to his history as the judge who sentenced the six Kitchenuhmaykoosib Inninuwug community leaders to jail in 2008 during a dispute to keep mining activity off their lands.
Canadian Judicial Council chief administrator Norman Sabourin contacted Smith a week after his appointment was announced, stating that his new role may warrant consideration by the council as a result of media reports.
Multiple letters were exchanged back and forth throughout May, including a letter from Superior Court Chief Justice Smith to reaffirm her support.
“She provided information about the faculty of law’s special mandate of providing legal education in Northern Ontario with a view to enhancing access to justice. She opined that the council had an opportunity in this matter to take concrete action to support a legal institution in crisis,” the federal court filing reads.
Upon receiving the council’s decision to order the review in late August, Smith began the process to resign as interim law dean. The school announced earlier this month that Smith would be departing to return to the bench.
Smith’s lawyers argued the decision to refer to a review panel not only tarnishes the judge’s 17-year judicial record, but endangers the university’s search for a permanent law dean as well as its accreditation.
“Should the faculty of law lose its accreditation, the consequences for all stakeholders – most importantly, its students – would be devastating. All advances to date, in particular those regarding the interests of Indigenous students and the Indigenous community in Northern Ontario, would be erased,” the court filing reads.
