THUNDER BAY - A local judge who took on the position as interim dean at the faculty of Law at Lakehead University did contravene the Judges Act, but the Canadian Judicial Council has rule there was not enough misconduct to remove him from judicial office.
But Smith’s attorney, Brian Gover, is arguing there was no misconduct at all, and the Canadian Judicial Council releasing its report comes before a motion to throw out the entire review was to be heard in a federal court.
“To be clear, our view remains that Justice Smith did absolutely nothing wrong,” Gover said. “He acted in good faith with the permission of his chief justice and the Minister of Justice and the Canadian Judicial Council’s criticism of him to the extent there is any, is the result of a completely unsatisfactory process, one that we intend to review in the federal court.”
Justice Patrick Smith was under review by the Council’s Judicial Conduct Review Panel after taking on the role as dean last spring following Angelique Eaglewoman's resignation, which she said was due to ongoing systemic racism at the post-secondary institution.
Smith's appointment by Lakehead as interim dean drew criticism from First Nation leaders, who said the position was filled without input from Indigenous partners and cited Smith's 2008 ruling where he sentenced Chief Donny Morris and five other members of the Kitchenuhmaykoosib Inninuwug council to prison during a lengthy fight to keep mining activity off their traditional lands.
In late September, Gover filed an application in federal court to quash the decision to order the review. He said on Tuesday that the application was to be heard in two weeks.
“It is surprising and disappointing that the council has proceeded in the face of an outstanding application for a judicial review and our motion to stay the decision to constitute the review panel that made the decision,” Gover said.
“It is quite surprising that the Canadian Judicial Council has taken this step. The principal that tribunals normally follow, which is known as judicial comity, is they stand down in the face of a pending court application. But the Canadian Judicial Council of all bodies, chose to proceed.”
The panel ruled that Smith did contravene section 55 of the Judges Act by taking on the position as dean, but the misconduct was not serious enough to warrant his removal from judicial office.
Section 55 of the Judges Act states that judges should devote themselves exclusively to judicial duties.
The Review panel said in its report: “Justice Smith was motivated by a genuine desire to use his skills, background and experience to help the Faculty in a time of crisis. As previously noted, this is not a case involving bad behaviour or improper motives on the part of Justice Smith.”
The panel also found that Smith 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 Judicial Conduct Review Panel said further that the situation of Smith in the role as dean could have "led to judicial challenges of decisions regarding the university and that such litigation would have come before the Court of which the judge is a member."
"The judge's decision, notwithstanding his genuine desire to help the Faulty of Law at Lakehead, was ill-advised," the panel said in its findings.
The matter was referred to Senior Associate Chief Justice Pidgeon as per the council's by-laws. Pidgeon agreed with the panel's findings and because Smith resigned from his position as interim dean, he determined that No further measures will be taken by the Canadian Judicial Council.
