TORONTO — The Canadian Judicial Council is telling Federal Court its actions in investigating Justice Patrick Smith's acceptance of the interim deanship of the Lakehead University law school were entirely appropriate.
Smith, a semi-retired Superior Court judge, has asked the court to overturn the CJC's finding that he should not have taken the post.
A CJC review panel said Smith's decision to accept Lakehead's request for help during a period of crisis in 2018 was ill-advised and in breach of the Judges Act.
It determined that he 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."
The law school's previous dean, Angelique EagleWoman resigned in April 2018, alleging systemic racism within the university.
First Nations' leaders publicly criticized Smith's appointment.
In a submission in advance of a Jan. 21 Federal Court hearing in Toronto, the CJC says "litigation was a distinct possibility" and there were serious concerns that the Faculty of Law would lose its accreditation.
"Judicial ethics prohibit the prestige of judicial office from being used to bolster the reputation, status or public confidence in extra-judicial organizations. Deploying judicial prestige to advantage certain individuals or institutions risks undermining the impartiality and independence of the judiciary," it states.
Ontario and federal judges' associations have intervened in the case in support of Smith.
The CJC, however, refutes the concerns raised by Smith and the judges' associations that the review panel's decision will have chilling effects on judges' ability to contribute to their communities.
It argues that Smith's case is distinctive because he had to take a leave of absence from the bench, and "as such his undertaking constituted an occupation which impermissibly interferes with judicial obligations."
The CJC notes there is a difference, as well, between a ceremonial position such as chancellor of a university, and an academic position of leadership that exposes a judge to "matters of ongoing controversy and potential litigation, or is intended to lend the prestige of the judicial office to assist in resolving the controversy."
The Attorney General of Canada, in a submission to Federal Court, maintains that the CJC improperly interpreted the section of the Judges Act which states that federally-appointed judges shall not engage in any occupation or business other than their judicial duties.
However, in its submission the CJC defends the way it conducted its investigation from start to finish, saying the legislative history supports its interpretation.
Smith's lawyer has called the CJC's actions an abuse of process.
The CJC received no formal complaint about his decision to accept the LU appointment, but argues there is no requirement for a complaint to be made in order for it to investigate judicial conduct.
"The Council is permitted to develop its own procedures. As a general rule, tribunals are considered to be masters in their own house," it states.
Justice Smith received permission from both the Chief Justice of the Superior Court of Ontario and federal Justice Minister Jody Wilson-Raybould to take a leave of absence.
His initial appointment at the law school was for six months, but he stepped aside after three months to return to the bench.
EagleWoman launched a lawsuit against the university, seeking $2.6 million for alleged constructive dismissal and an alleged breach of the Ontario Human Rights Code.
In August 2019, Lakehead named University of New Brunswick professor Jula Hughes as its new Dean of Law.
