How Long Would it Take You to Fire This Guy?!

You’ve just hired a new CEO of your company, which is large and diverse.

The multifaceted nature of the company requires many people with specialized expertise in communications, cybersecurity, relations with government and with other companies, as well as specialized knowledge in many other areas. Your company’s relationship with others, especially with those with similar company characteristics, is on the whole good, despite the occasional disagreement. There are some companies, however, about which it is agreed among members of your board of directors, senior executives and yourself you need to be wary.

Inevitably, internally, there have been disputes, disagreements about specific decisions, as well as the general direction of the company, but again, for the most part, things are going well, despite certain philosphical differences. However, there was some disagreement about hiring your new CEO. He happens to be male and quite a few people would have preferred hiring a diferent candidate, a woman, including you. If anything, more of your other employees preferred the other candidate, but the board of directors, to whom you had entrusted the decision, chose the other candidate who has now been in the position for a short period of time.

Your new CEO talked big during the hiring process, but it doesn’t take long before you realize he has trouble realizing some of the promises he made (some he manages to accomplish, primarily because of help from others). Indeed, there are some people who are completely dedicated to the new guy and go out of their way to make your employee look good; one impact of how he operates is that it reveals that things weren’t really that great internally, after all. He knows how to take advantage of this, not to improve the company, but to benefit himself.

Over the next few monhs, several of the employees in quite senior positions who were hired to assist the CEO with difficult issues outside his own area of expertise leave the company. You find that he is making decisions and announcing them at will, without any approval from you or the board of directors. He doesn’t care what his advisors say — he knows better than anyone on a whole lot of different subjects, subjects in which he objectively speaking shows a great deal of ignorance .

It becomes clear that he often lies, sometimes mispresenting events that have happened and sometimes fabricating information, results of company projects or the actions of others in the company out of whole cloth. But this is not the only problem as far as lies are concerned, because you discover he is requiring other employees to lie for him, to make him look better, especially, but certainly not only, in comparison with his predecessor.

The CEO starts having public fights with many people and groups; it’s not unusual that there are sometimes a few arguments or a bit of hostility, but it’s reached the point where, except for one or two members of these groups, he exhibits ongoing and public antagonism towards them. The good, even excellent, relationships with other enterprises start to deteriorate, while at the same time, the CEO cozies up to those you’ve distrusted in the past. You find, as well, that they are working with competitors to help them and to hurt others in the organization.

You find out that the CEO is carrying on his own business, a chain of high-end restaurants, although technically it is being run by relatives. Sometimes other employees hold company events at his restaurants, as do people from other companies. He’s also appointed relatives to positions in the company where the relatives also can benefit themselves; indeed, these relatives become involved with your company’s operations, although they’ve never been been formally considered for them.

Although the CEO has a very good fund to pay for legitimate expenses, you discover that he ise using it to hold big events to promote his keeping hisjob beyond his current contract — to make it seem okay, he sometimes will take an hour or so to do some actual business. But when he go out of town for these events, you’ve been told he doesn’t always pay what he owes those who provide services for these events.

He doesn’t prepare for meetings or even public pronouncements. Even when he does talk from prepared notes (prepared by other people), he ad libs, sometimes with crass remarks, sometimes with fabrications, sometimes with insults to others. He seem incapable of writing comprehensible sentences, but he insists on sending out notes to all and sundry without checking with anyone first.

Although far from perfect, your company has committed to policies designed to increase equality in the firm. You were shocked to hear the CEO make misogynist and racist comments in private meetings and also in public settings.

In short, your CEO is highly incompetent in carrying out the job for which he was hired, his actions raise serious ethical and moral issues and his conduct, unfortunately aided by others, makes it difficult to achieve the company’s goals.

HOW LONG WOULD IT TAKE YOU TO FIRE AN EMPLOYEE LIKE THIS?!

Secularism and Religious Complexities

For many years, my view of the world has included a belief in secularism. Depending on how confident I feel at any given time, I am an atheist or agnostic. But what does this really mean and what does it say, from my perspective, about the place of religion in the public square and in private life? What can we say about the nature of a secular society, especially one that has recognized freedom of religion? (I stress, at least as far as I see it, no absolutes, or very few, here.)

In contrast to a theocratic state, which is governed by a particular religion, a secular state does not advance a particular religion, or religion generally: thus government and education, for example, do not have a connection with religion (although this is complicated by the constitutional guarantee of denominational schools). The moral attributes of the state are not explicitly attributed to religion, although religious tenets may serve as a subtext to an ostensibly secular moral code, whether admitted or not.

On this last point, secular states may be officially atheist, not accepting freedom of religion, recognizing freedom of religion or, despite stating acceptance, nevertheless oppressive of it or of some forms of it. My personal perspective believe in a liberal-democratic state that does acknowledge and permit freedom of religion (and of conscience, a rather trickier ground I think, despite the broad scope the Supreme Court of Canada has given religious belief in cases such as Big M Drug Mart and Anselem). Such a state also prohibits the corollory of freedom of religion, the right not to be discriminated against on its basis.

However, inevitably things are really not so simple. A state that is appropriately described as secular today may have had significant religious components or influences in the past that linger today. Canada is a good example of a state that at one time, although not identifying an official or state religion, nevertheless behaved as if Christianity was a state religion. A brief description of the discrimination against Indigenous peoples, in part based on religion, on Jews and on others can be found in the Ontario Human Rights Commission’s history of “creed”. Some states, such as France (and Quebec), once governed by religious practice, now seek to eliminate religion from the public square completely or in part .

Our respect for civil liberties — freedom of speech, freedom of religion, freedom of association — derives from the historical denial of those liberties. As far as religion is concerned, world history and current circumstances is replete with forced conversions, death, sometimes horribly so, for those who do not accede to the dominant religion and, in a less dramatic sense, denial of education, employment or housing. We can point to many such occurrences across the world, including in Canada. It is a mark of an advanced society, in my mind, that it can accept people’s religious observances, recognize the strength they gain from their religious belief and understand that their commitment to their religion is a fundamental aspect of their identity. Similarly, those who have no religious views should be allowed that perspective, as well.

I appreciate, and even envy at times, the comfort people can receive from religion, whether because they believe they will see their loved ones again after they have passed away or at least that the afterlife has meaning.

I read not long ago a beautiful and moving description of the “afterlife” by Ted Rohn, publisher Greg Younging’s brother:


When Dr. Younging began his spirit journey on May 3, he was surrounded by family and the love of friends who had inundated the hospital with calls and posted messages online. His father spoke to him while his daughter Nimkish held his hand and sang to him, much like he had sung her to sleep as a child.

“He found peace in the surrender,” brother Ted wrote online. “We washed him in cedar water and prayed for his spirit.”

“On the first night, he travelled to the Sky World. He rested, lit a fire and ate a meal,” Ted said in his eulogy. “On the second night, he travelled to the Star World. That night, we watched from his balcony as the night sky lit up and danced with his energy. The third night, he travelled to the place where the waters are. There, our ancestors met him and greeted him and showed him how to cross the waters. On the final night – last night – the ancestors took him into the dark. They had to leave him, this part of the journey he had to take on his own. Alone, he followed the light through the Dark World, and made his final crossing over into the light and into the love.”

Kateri Akiwenzie-Damm, “Publisher Greg Younging nurtured Indigenous voices in Canada“, The Globe and Mail (online May 28, 2019)

Such belief can only be described and truly felt by those for whom it is an integral part of who they are. The rest of us, or at least I know I am, are outsiders who can only acknowledge how important this belief is. That is what freedom of religion is ultimately about, I believe. Even those of us who do not have the faith religion requires, should in a liberal secular society, be willing to accept the faith of others with the important caveat that the faith is not grounded in hatred or ill-treatment of others.

But that is the easy part. Inevitably, conflicts will arise when religious beliefs run up against other religious beliefs or other situations in which the religious expression negatively affects other people directly or cannot be reconciled with another significant societal interest. Despite a commitment to religious freedom, a secular society requires that some expressions of religious belief may have to give way in the face of the public good. Otherwise, we run the risk of developing a theocracy, albeit one that is manifested in the dominance of several different sets of religious belief. (Although some would argue the public good requires observance of the morality reflected in or following from certain religious beliefs.)

Sometimes the struggle is an internal one: for example, a public figure must somehow reconcile — or ignore — their religious beliefs in order to conform to other loyalties.

In secular countries, adherents of the church who also have public decision-making powers and authority must struggle themselves with conflicts that might arise from their religious beliefs — and expectations of their church — and their government responsibilities. I recall being impressed by Mark MacGuigan’s honest and thoughtful journey into this struggle in his book Abortion, Conscience & Democracy (1994) (still available, it appears, from Dundurn Press). (See my 1995 review in the Canadian Bar Review). I wrote in my review,

MacGuigan’s theoretical position grows from the parallel developments of pluralist democracy and of the liberalization of religion, merging in the secular democratic state, the separation of the political from the religious, and the growth of secular principles to guide the determination of moral decisions. Yet he sees the religious and the secular as ultimately intertwined : “a religiously neutral, pluralist democracy. . .is more than a mere toleration of diversity. It is an acceptance of pluralistic society as God’s plan for the world”. (P.526)

I reread this review for the first time in many years (I probably haven’t looked at it since 1995!) for this post and realize that, while I have always thought about MacGuigan’s position as one to be admired (and probably still do), that it does not suffice in the end to address the fundamental question because of MacGuigan’s starting point:

MacGuigan’s position is grounded in the rights of women who are “morally impelled to have abortions”. This attribution of the demands of conscience provides a symmetry perhaps necessary to a thesis premised on rationality and logic. But in the nearly twenty-five years that I [had then] been involved in this struggle, I have never heard a woman claim that she has been “morally impelled” to have an abortion. Rather, I have heard women talk about the failure of contraception, having to raise existing children singlehandedly, having conceived from rape, and young women who, like their male companions of the instant, were careless and faced severe disruption of their lives. These are not reasons which MacGuigan would recognize as legitimate after viability, but they are the reasons women need access to abortion. (P. 528)

Individuals with other religious beliefs in public positions of authority will have faced the same challenge, maintaining adherence to their religious beliefs and observing public policies and laws that affect others. Others (and I think of Vice-President Pence of the United States who appears to bring his particular Christian beliefs to legislation denying LGBTQ+ peoples their rights, even to perhaps influencing taking away the rights they have already acquired) use their public positions to advance their own religious outlook.

In other cases, and perhaps increasingly so, the conflict will be more direct and open. For example, if a public school teacher’s religious faith restricts his interaction with women and he refuses to meet alone with a female parent of a student, his belief must give way to the more general commitment to gender equality rights. Some may argue that an accommodation could be achieved: if there is a male parent available, he could meet with the teacher; a male employee of the school could meet at the same time. Such adjustments might seem simple and possibly both female parent and teacher would be willing to make these arrangements. But what does it say about our understanding of the equality of women that they must be subject to the tenets of a religion that somehow does not see them as equal (I say this realizing that others would argue that there are different ways to think about equality)? This is a case in my view where the religious belief must give way to another right.

A similar issue arose at York University when a male student refused to work with female students in a course requiring group work. The student had taken internet courses because he said his religious beliefs prevented his interacting with women; however, the group work was required. The professor refused the student’s request and the student did accept that. Despite the student’s response, the York administration took a different tack, ordering the professor to accommodate the male student. The professor refused. (The university claimed that the order to accommodate was based on the nature of the course: it was an online course and the student had selected it because he would not have to attend classes on campus, but without seeing the course syllabus it is difficult to see whether this might have been the case from the outside and it is not the reason apparently given by the student.) These cases affect particular groups, but they also represent the public interest in not having authorities complicit in infringing broader rights.

Let me consider another example: the refusal on religious grounds to vaccinate children. (There are issues relating to adults who do not get vaccinated, such as failure to get a flu vaccination every year, but I’m limiting myself to children here). Here the broader public interest is clearly at stake, since it is necessary for a sufficient percentage of persons to be vaccinated in order to have the proper impact (the so-called “herd immunity”). Children who cannot be vaccinated for some reason are also at greater risk from other children around them who contract measles, for example, because the latter were not vaccinated. This example is also complicated because some parents refuse to vaccinate their children for non-religious reasons, because, for example, they believe debunked notions that vaccinations cause autism.

In Ontario, the law requires children to be vaccinated against a list of diseases before they can attend school; however, the Immunization of School Pupils Act permits exemptions for medical reasons (this requires a medical certificate limited as to disease and effective time period) and for reasons of “conscience or religious belief” (in this case, the parent must, since September 2017, attend an educational session about vaccines and must file a certificate with the medical officer of health, subject to a fine of $1,000 for non-compliance). A report in the National Post earlier this year suggests that these sessions have not changed anyone’s mind and may have entrenched opposition because parents feel insulted. Non-vaccinated students can be removed from school if there is an outbreak of disease.

New Brunswick, which also has a mandatory vaccination law with medical and religious and conscientious exemptions, is eliminating the non-medical exemptions, as are some other jurisdictions, including New York. (I have considered the constitutional aspects of removing non-medical exemptions in a Slaw post.) According to a report in the National Post, Australian parents can lose child benefits if they do not vaccinate their children.

There is disagreement about how to address what is called in an unfortunate euphemism, “vaccine hesitancy”, or more pointedly, labelling those opposed “anti-vaxxers”. Measles can result in death (and has since its resurgence), hearing loss, brain damage and other problems, yet parents still refuse. And measles is easy to catch — one person will probably infect 18 others and even after someone leaves a room, people may still catch it over the next wo hours — and there’s no cure once someone contracts it. It seems that many people opposed to vaccinations develop that view through the internet and social media, where there is false information or emotional stories, compared to the sheet of dry facts and statistics. Better, it is said, to treat those opposed with respect and to discuss their concerns.

We do not permit parents to refuse blood transfusions or other medical procedures that are required to save a child’s life (see B. (R.) v. Children’s Aid Society of Metropolitan Toronto, in which four judges held that the right to religious belief is broader than the right to act on that belief and the other five held that limitation on the right was justified under section 1 of the Charter) and so it is reasonable to ask why we permit religious objections to vaccinations. Not only the parent’s own children are at risk, but other children and adults with certain conditions. Requiring vaccinations is an example of where the public interest should take precedence over personal belief.

Another example can be found in the refusal of some doctors to provide certain services on religious grounds and, in particular, the view that even to refer patients to other medical professionals who would provide the services infringes their religious beliefs. I discussed the Ontario Court of Appeal’s decision in Christian Medical and Dental Society of Canada upholding the College of Physicians and Surgeons of Ontario’s referral policies in a Slaw.ca post. The doctors’ obligation to ensure that their patients will have proper treatment arises from the doctor’s fiduciary relationship to their patient and that may require setting aside religious beliefs.

However, a secular state can tolerate individual religous expression even in those who represent the state: what it cannot tolerate is influencing state policies on the basis of those beliefs.

Quebec’s Bill 21, An Act respecting the laicity of the State (available at
http://www.assnat.qc.ca/en/travaux-parlementaires/projets-loi/projet-loi-21-42-1.html?appelant=MC) has now passed the National Assembly. It prohibits certain civil servants, that is, persons in public positions such as teachers, police officers, government lawyers, judges and others in similar positions of authority providing government services to the public from wearing clothing or other manifest examples of religious belief. While it grandparents current employees, it is only in their current positions, with the paths to a different position or a promotion blocked if they do not secularize their appearance.

The premier considers the legislation a compromise because it only targets people in authority and is a response to the majority of Quebecers’ desire to ban all manifestation of religious symbols in public. Although there is already a challenge to the law, the government employed section 33 of the Canadian Charter of Human Rights (the notwithstanding clause) and amended Quebec’s own Charter of Human Rights and Freedoms so that the legislation cannot be held to contravene it. Nevertheless, those going to court are basing their challenge onthe legislation’s vagueness and on the pre-Charter law holding only the federal level can legislate in this way about religion.

There are several difficulties with the legislation. For example, it is not clear what particular clothing will be considered religious; generally, the forbidden items are “any object, including a garment, a symbol, a jewel, an adornment, an accessory or a headdress” [that] is worn “in connection with religious belief” or “reasonably considered to refer to religious affiliation”. As someone who believes in a secular state, and, I think, understands the view that religious clothing speaks not only for the individual, but for the state itself (a view I reject), such a significant intrusion into religious freedom makes a state autocratic, not liberal, with the possibility of inspectors to ensure compliance with the law (it appears individuals in an organization will be responsible for ensuring compliance and that other inspectors will be checking institutions that may not be applying the law, as some have said they will not.)

How does the principle of freedom of religion until its manifestation harms others play out here? The Premier’s defence, at least in part, is that it is acceptable to limit people’s rights in order to prevent others from acting badly; some may consider that this is asking those who may be subject to harassment or worse to give in to the extremists (according to the Premier, “To avoid extremism, you have to give a little to the majority,” referring to extremist parties in Europe). More philosophically, the premise underlying the legislation is that an individual’s religious expression is transmorgified into the state’s religious expression. It is true that the state is entitled to control the behaviour of its agents so that their ill deeds or even less serious behaviour do not rebound on the state or become associated with the state. The state’s failure to control such conduct might be treated as acceptance of the conduct.

Should the state recognize the degrees of a university that because of its religious commitment singles out a particular group for negative treatment? Here I believe the state would be complicit in the discrimination by the university, although the Supreme Court of Canada found otherwise. (See Trinity Western University v. British Columbia College of Teachers for the relevant case.) However, contrast this decision with Law Society of British Columbia v. Trinity Western University and Trinity Western University v. Law Society of Upper Canada in which the SCC upheld the decision of law societies not to approve the TWU law school. These decisions did not deny people to have particular religious beliefs; rather they meant that people could not act on those religious belief to deny others’ rights (to equality) and still expect to get the benefit the governing authority controlled.

What is the difference between the TWU situations and Quebec’s Bill 21? In my view, the former uses religion to harm a particular group, and thus the state or other governing body becomes complicit in allowing it, while in the latter, the state uses its so-called secular identity to hurt persons who are not harming others solely on the basis of their religious beliefs. Allowing those in authority to wear religious garb, given the different religions involved, would be an example of religious pluralism, which is compatible with a secular state. It would be different if on the one hand, those holding these (different) religious beliefs brought those beliefs to bear in carrying out their functions, or, on the other hand, if the state required the wearing of religious garb or some other indication of religion, whether of one or several religions. Rather, the state is denying religious expression that does not harm others (except that others will see it) and at considerable cost to the religious employees.

A secular state that protects religious belief will not necessarily find it easy to decide when those beliefs cross the line to harm others. This is particularly the case when religious beliefs acted upon may be contrary to other significant societal values. However, for me, the secular state has the same obligation to prevent that harm as it does to prevent harm done to those engaging in religious practice or expressing religious belief through what they wear. A secular state that recognizes freedom of religion can find itelf in treacherous waters, but for me, the way it navigates them — and this is, I admit, easier to say than to do — is to avoid favouring a religion while protecting the expression of all religions unless religious belief is used to harm others.

(One last point: can religion effectively meet its purposes for the individual without structure or a religious institution? That raises the question of the extent of state support for religion through recognition as having a charitable purpose under the Canada Revenue Act, and whether religions/religious institutions are beyond the scope of the state. This, to my mind, does not follow from the place of faith-based institutions in a secular society. However, a complicated topic for another day — maybe!)

Michael Wernick: Mounting the Offence? (A Hypothesis)

As clerk of the privy council, Michael Wernick is Canada’s most senior public servant and, therefore, ostensibly neutral. But a more passionate defender before the House Justice Committee this past Thursday (February 21st) of the various actors (the prime minister, the PM’s principal secretary, others and himself) who helped to present, in his word, “the context” about the SNC-Lavalin situation to former Attorney General Jody Wilson-Raybould, is unlikely to be found. His doing so set the stage for the former attorney-general’s appearance next week.

Discussing the various meetings Wilson-Raybould had with these various political actors, as well as his non-partisan self, Wernick went to great pains to make it clear that these conversations may have been pressure, but that they were not “inappropriate”, merely ensuring that Wilson-Raybould had the necessary information about the economic consequences if the director of public prosecutions (DPP) did not invite SNC-Lavalin to negotiate a remediation agreement. (For details of Wernick’s testimony, see “Top bureaucrat says Trudeau, staff pressed Wilson-Raybould on SNC-Lavalin settlement” in the February 21st edition of The Globe and Mail online and “Privy Council Clerk Michael Wernick adamant no undue pressure exerted on Wilson-Raybould” in the February 21st online edition of the National Post.)

Was Wernick’s testimony the neutral setting out of events about the interactions between the former AG and others? Or was it intended to set up the former AG so that she would be on the defensive when (if) she testifies before the committee? Was his testimony a cool articulation of how much political pressure on an AG is permitted before it cross the line? Or was it intended to ensure that when (if) the former AG testifies, she will come across as overly sensitive to legitimate discussions, indeed, even to some degree of okay pressure?

The stronger argument seems to me to be that Wernick was another form of attack against Wilson-Raybould. After all, he put it clearly:


So I can tell you with complete assurance that my view of those conversations is that they were within the boundaries of what’s lawful and appropriate, I was informing the minister of context. She may have another view of the conversation, but that’s something that the ethics commissioner could sort out. [emphasis added]

The National Post

In short, Wernick’s testimony puts Wilson-Raybould on the defensive. Yes, his testimony implies, she was subject to pressure, but really this is nothing more than one would expect in the tough world of politics. After all, the economic consequences of SNC-Lavalin having to go to trial, be convicted and not being able to bid for government contracts would be severe. The PM, the PMO, the clerk of the privy council and others all expected she would understand that and take the appropriate action: instruct the DPP to offer to negotiate an agreement with SNC-Lavalin (even though by then the DPP had already decided against doing so). And even though the reason behind all the (“not inappropriate”) pressure, the national economic interest, was a reason the DPP could not take into account in deciding whether to offer to negotiate a remediation agreement (s.715.32(3)).

So let’s think about being in Wilson-Raybould’s position. She is the AG. She is not to take political considerations into account in making legal decisions, including any instructions to the DPP. The DPP makes a decision not to offer SNC-Lavalin an opportunity to negotiate a remediation agreement. The AG does not need to be involved in that under the relevant provisions of the Criminal Code; she needs to consent if the DPP does want to offer the opportunity, but not if the DPP does not (s.715.32(1)(c)). She is assailed on all sides to think about the bad impact on employees and other other negative consequences if SNC-Lavalin has to go to trial, but she decides (let us suppose) that the DPP’s decision is the correct one that reflects the requirements of the remediation agreement provisions and the independence of the DPP. She rejects the pressure she has been subject to and does not counteract the DPP’s decision.

Perhaps that seems to end the matter. Although Wilson-Raybould does apparently believe that she had been inappropriately pressured by the PMO, at least, she had not resigned as AG, perhaps because no one did give her a direct order to countermand the DPP’s decision. (The Globe and Mail reported that when she met with cabinet on February 19th, she told cabinet members that the pressure from the PMO was improper.) The PM was careful to say when questioned after The Globe and Mail story revealing there had been pressure, that he had not directed Wilson-Raybould, although that had not been the The Globe and Mail‘s assertion. For example, on February 15th, he explained,


There were many discussions going on. Which is why Jody Wilson-Raybould asked me if I was directing her, or going to direct her, to take a particular decision and I, of course, said no, that it was her decision to make and I expected her to make it. I had full confidence in her role as attorney general to make the decision.

National Post

The PM said if Wilson-Raybould had concerns, she should have raised them with him, but she did not. Or perhaps she was not concerned because she did not give in to the pressure, did what she thought was right and nothing negative followed.

Until the prime minister had an opportunity to shuffle his cabinet in mid-January when Scott Brison left government, Wilson-Raybould continued to be attorney general. And, said, Trudeau, if Brison hadn’t left, she still would be. The PM took the opportunity to move Seamus O’Regan from Veterans Affairs to Indigenous Services, replacing Jane Philpott who was given Treasury. And. to the surprise of many, he filled Veterans Affairs with Jody Wilson-Raybould (Global News had reported on January 14th that there was some expectation that Veterans Affairs would be filled by a newcomer from Nova Scotia).

The reality is, fair or not, that Veterans Affairs is seen as a less significant portfolio than many others and thus a demotion for Wilson-Raybould. Although the PM is free to name cabinet members as he wishes (taking into account the usual factors of geography and competence, among others), there are times appointments raise eyebrows and this was one, since overall, Wilson-Raybould had been a successful minister). Was she being punished because she refused to toe the line? Or was her removal a reflection of the lack of trust the PM now had in her to do what he wanted?

The PM replaced her with David Lametti, an MP from Quebec, who wasted little time in letting everyone know that he might still direct the DPP to offer to negotiate a remediation agreement with SNC-Lavalin. This suggested that the PM still wanted a different outcome on the SNC-Lavalin file, through a possibly more compliant minister (although possibly one who genuinely thought that there was cause to override the DPP’s decision, despite the remediation agreement provisions) . Possibly, we might infer from Wernick’s testimony, one who could take more pressure than could Wilson-Raybould without seeing it as inappropriate.

On that point, The Globe and Mail reported that “Lametti said the attorney general ‘is not an island’ who can’t talk to cabinet colleagues or government officials before making a decision about a prosecution. ..” but he also said
it is crucial that the final decision must be the attorney general’s alone.”

This is an accurate statement about the independence of the attorney general: she can consult with colleagues and is encouraged to do so, but she must make the decision. When she concludes that the political actors have become directing, she may have to resign. (This is the Shawcross doctrine, named after a UK attorney-general, Lord Shawcross). This is the crux of the matter. Repeated efforts to convince her to change her mind (or to reach a particular conclusion contrary to her inclination) from senior members of the government, the PMO and the PCO might well have crossed the line, but may also have been very close to it. At least one statement of attorney general independence, that relies on the Shawcross doctrine, says that “the government is not to put pressure on him or her” and that


although the Attorney General is a cabinet minister, he or she acts independently of the cabinet in the exercise of the prosecution function. This convention is now so firmly entrenched in the Canadian political system that any deviation would likely lead to the resignation of the Attorney General or would, at the very least, spark a constitutional crisis


The Honourable Marc Rosenberg , “The Attorney General and the Prosecution Function on the Twenty-First Century“, Ontario Court of Appeal website

Here there was “pressure”, not merely consultation. Rather than resigning, however, Wilson-Raybould kept her own counsel. The large clue to this lies in her statement posted on her website following her demotion:

The role of the Attorney General of Canada carries with it unique responsibilities to uphold the rule of law and the administration of justice, and as such demands a measure of principled independence. It is a pillar of our democracy that our system of justice be free from even the perception of political interference and uphold the highest levels of public confidence. As such, it has always been my view that the Attorney General of Canada must be non-partisan, more transparent in the principles that are the basis of decisions, and, in this respect, always willing to speak truth to power. This is how I served throughout my tenure in that role. (emphasis added)

Website of Jody Wilson-Raybould

She may well have thought all was forgiven until she was demoted and then, she, a good member of the Liberal government accepted that, or at least it seems she did, until the PM went one step too far. He mused that Wilson-Raybould was satisfied with the government because she was still in cabinet — upon which she resigned as minister of veterans affairs on February 12th.

Back to Michael Wernick’s testimony before the justice committee. The prime minister said on Friday (February 22nd) that Wernick “is someone we need to heed very carefully when he chooses to express himself publicly and I’m sure everyone is taking a careful look at his words yesterday”, effectively saying, “here’s the truth of the matter against which other views must be compared”. Wernick confirmed (it appears) the extent of the extensive pressure from various high officials on Wilson-Raybould. What he did not necessarily confirm is that that degree of pressure, despite Wilson-Raybould’s not giving in, did not constitute attempts to undermine the AG’s independence.

Why I’m a Friend of the Ontario Community Legal Clinic System

For the last several years, I’ve been a member of an advisory group called Friends of the Community Legal Clinics. We support the community legal clinic system and we’re available to advise the Association of Community Legal Clinics of Ontario (ACLCO). Many of the members have been closely involved with the system one way or the other, but my own connection is a bit different: I’m familiar with the system and have been for many years, but mostly I just believe strongly that people living in low income are very fortunate to have this system available to help them address legal problems that arise primarily because can’t afford legal assistance otherwise.

I had my first brush with Ontario’s community legal clinic system at Osgoode Hall Law School, when Professor Fred Zemans asked me to be his research assistant in 1979, my first year of law school. He was the first Director of Parkdale Community Legal Services, the first law school-connected clinic in Ontario and one of four in Canada, established in 1971. By 1979, over 30 clinics had been established; it was my job to visit them to contribute to the research and analysis that Professor Zemans would use in an article “Community Legal Clinics in Ontario: 1980, A Data Survey”. So in one sense, this was a “brush” with clinics, but in another, it was a deep dive into the details of all the clinics existing at the time. I became a fan of the system then and I remain one today.

Professor Zemans, aware of my interest in legal aid generally, invited me to legal aid roundtables he, with others, organized from time to time and I was able to attend even when I was in Fredericton as the Chair in Women and Law at UNB or in Calgary as dean of the law school. One of the first events I attended when I returned to Toronto from Calgary in 2007, to become the first executive director of the Law Commission of Ontario, was a legal aid conference. There I met quite a few people I’d known when I had lived in Toronto before I went to New Brunswick in 1992; they continued to work in the system. All along, I’d kept up to date with developments in the clinic system. When I started making the rounds of those who might be interested in the LCO’s work, who could contribute to it or benefit from it or both, I met with a number of the clinic directors, in part though the help of Lenny Abramowicz, the executive director of ACLCO.

Today, there are 74 clinics, some serving a specific geographic area, others “speciality” clinics serving particular communities (such as older adults, injured workers, Indigenous communities, persons living with disabilities, African-Canadians, Chinese and Southeast Asians, South Asian, persons living with HIV and AIDS and francophones). Right from the beginning, the LCO benefited considerably from the assistance of many sectors, legal and otherwise, with expertise and contacts related to its projects. Its project heads also met with hundreds of people affected by the various issues it addressed in its projects. (This may all still be the case; however, I left the LCO in December 2015 and, with one exception, have not had a connection with it since then.) Among the many contributors to LCO projects, clinics have been of enormous assistance in different ways that illustrate the depth of their expertise and the breadth of their connections to the community.

Geographically-based clinics made written submissions to almost the projects (if not all), bringing the everyday experience of their clients to the mix of factors the LCO considered in making recommendations. We heard from clinics all across Ontario, giving us insights that would have been very difficult to obtain otherwise. They knew about the struggles their clients faced — and members of the community in similar situations — because they dealt with them over and over again.

The specialized clinics revealed the depth of knowledge and commitment of their workers to serving their particular communities in numerous ways: some representatives served on advisory groups composed of members who reflected various and often conflicting views; a few clinics served on advisory groups in more than one project. Many made written submissions, several helped organized focus groups. We received more indepth analysis through research papers from a few clinics (the LCO paid for commissioned research).

In addition to what I learned about clinics through the LCO, I’ve also participated in some clinic events, which merely reinforced what I had seen in a more distant way. I made presentations for workshops organized by and served on advisory groups for research undertaken by Community Legal Education Ontario (CLEO), for example.

Clinics’ locations encourage people who might otherwise be reluctant to seek legal help to approach them. Their boards of directors, coming from the community, can keep clinics apprised of developments that help the clinics ensure their work meets the needs of their clientele. I know that they have an impact beyond the individual clinic. Since I undertook the research for Fred Zemans many years ago, I’ve become more convinced than ever that Ontario is fortunate to have the clinic system as an integral part of legal aid, with a structure that reinforces respect for the communities they serve and, given the on-going relationship, enables them to respond to the changing challenges facing those communities.

Forty years after Professor Zemans introduced me to the community clinics, I continue to be a “Friend” of the community clinics, I’ve seen first hand how important the expertise they’ve developed is in providing legal services to those living on low income. My more peripheral contact with other clinics confirms for me that the accumulated knowledge and understanding of the legal system that the clinics bring would be almost impossible, if possible at all, to duplicate.

Bookmark Memories….

Over the years, I’ve collected a treasure trove of bookmarks. I say “treasure trove” because so many of them were brought back from travels, accompanied books bought from now-shuttered bookshops or were given to me as gifts. 

I’ll start with one of those I’ve picked up, sometimes free, sometimes for a pittance, just because I smiled when I saw them — and they continue to make me smile. 

The idea of a sheep wearing rimless glasses and knitting a long multi-coloured scarf is just fun! The short tag to hang outside the book is made of wool. Not like those cannibalistic ads showing potatoes eating potato chips (or something like that)!

On to bookmarks from bookstores! I have a bookmark from Pages: Books on Kensington in Calgary, It was a short stroll from my house, along with the other small shops along Kensington & down 10th, often a destination on free Friday evenings. Several Christmas tree decorations from another shop enroute to Pages are carefully packed away in seasonally-themed boxes ready for their next outing.

A shop
in Victoria known not only for how gorgeous it is, but also for having been co-founded by Canada’s Nobel Laureate Alice Munro (in 2013) and her then husband Jim Munro in 1963. I spent time browsing the books and the surroundings on trips to Victoria for the Uniform Law Conference and the Federation of Law Commissions of Canada when I was at the Law Commission of Ontario.

Of course, three of my favourite bookshops are Ben McNally Books on Bay Street, Toronto, Munro’s Books in Victoria and Fanfare Books in Stratford. 

I drop into Ben McNally’s on the way to Union Station to catch the Go train home and rarely leave without new acquisitions. As I browsed one late afternoon, I heard a voice say, “there’s someone here”. I’d inadvertently door-crashed the launch of a poetry book – amazingly by someone I knew because she’d accompanied her husband whom I also knew to winter open houses at my house. And even more amazingly, a lawyer I had worked with at the Ministry of the Attorney General over thirty years was a friend of theirs and was attending the launch; he now lives on the west coast. More recently, he sent me an email on my first post on Slaw, the legal on-line blog.


The tree in the U of T bookmark reminds me of a poster for The Cherry Orchard I went to at Hart House during that time.


I must have picked up this bookmark from the U of T Bookstores when I was doing my PhD there: it seems old (as do I, sometimes). 

Not so fun are the bookmarks that I still have from independent bookstores that closed years ago.

From the Toronto Women’s Bookstore, which I visited frequently, especially during its years on Harbord, and which was a casualty (although not a fatal one) of the firebombings of the Morgentaler clinic nearby. It was finally a fatal casualty of the economic challenges facing independent bookstores, closing in 2012. I have several of these and other versions of Women’s Bookstore bookmarks and they can usually be found in my books, fiction and non-fiction, by and about women.

Another is from The Book Cellar Yorkville, which apart from its “fine books” also sold international magazines and newspapers (when I still had hopes for learning French, I bought gardening magazines in French) — it closed in 2004. I was a customer of the Longhouse Bookshop on Bloor Street, too, when I lived in the area.  I have fond memories of  dropping into Britnells with my friend Alexis after our annual Christmas/Chanukah brunch at what I remember as Oliver & Bonacini on Yonge, just north of  Eglinton. We reserved a table by the fire and next to a deep-silled window decorated with a large poinsetta. Then we’d take ourselves to Britnells for the music and book browsing/buying. Happily, the bookmark here highlights its 100th year; sadly, it closed six years later. McNally Robinson in Calgary was a refuge on 8th Avenue SW for me when I worked downtown, but it closed in 2008, about the time I left Calgary to come back to Toronto (no relationship between those two events, despite the fact I’d no longer be shopping there!).

I regret I don’t have bookmarks from Nicholas Hoare or David Mirvish Books. David Mirvish Books, in Mirvish Village, I’d visit when I lived near Bathurst and Bloor: ironically, it’s David Mirvish who’s responsible for the dramatic changes now coming to that corner. After I moved to Fredericton, I’d get my fix of Nicholas Hoare Books on Front Street whenever I could on visits to Toronto. 

Another group of bookmarks make easy to carry souvenirs of places I’ve visited or exhibits. Knowing how much I like to read, my parents sometimes included bookmarks in their gifts from their trips.

My mum included a package of Japanese bookmarks in her gifts from a trip to that country, with several depicting geishas in different, but all lovely, kimonos and obi. I use one of these to mark my place in Haruki Murakami’s IQ84. The other bookmark here, which I may have bought myself, is from Switzerland; it is beautifully embroidered. My friend Harry and I visited Zermatt many years ago and being far more fit than either of us is now, we climbed up & down one of the mountains for an hour or more after we arrived. Not having taken into account the altitude of Zermatt itself, plus the increase with the climb, we couldn’t understand why we were exhausted at the end of the day! 

These bookmarks  come from Israel (in the middle) and Mexico (on the right); given the similarity in colours, the one on the left is probably from Mexico, too, although far different from the first one. My parents bought these back from trips. I have another one from Israel that is currently marking my place in Vol. 1 of Simon Schama’s The Story of the Jews.

These are from London. The first one, with Churchill’s profile, comes from The Cabinet War Room and was probably selected by my dad. He served in WWII and had a fine grasp of English war history. The middle one is from Westminster Abbey, very dignified and smart looking. The third pictures various types of guards for London’s historical buildings. On the occasion of Queen Elizabeth II’s coronation, when we were still in England, my parents bought me a miniature version of her coach with some of these guards.

I’ve included these three because they reflect my own history. I was born at home in Bedworth (the one across the top, difficult to see, is leather and reads “Nuneaton & Bedworth”, with their respective shields. The middle one is an example of the very fine weaving long produced in Coventry (where we lived before we came to Canada in 1956); it shows the cathedral and Lady Godiva: in a tale dating from the 13th century, she rode naked through the streets to convince her husband, Leofric, to remove the high tax he had imposed, hidden only by her long hair. No one looked at her except “Peeping Tom”, who was struck blind. Godiva’s ride and Tom’s peeping are immortalized in a clock tower in the centre of Coventry. I believe the third bookmark, with the cross at the upper end, is also woven, coming from Coventry Cathedral, the second emanation of which was almost completely destroyed in the bombing of Coventry in November 1940. The surviving walls and timbers fallen in the shape of a cross were joined with the “new” cathedral consecrated in 1962. When I spent a year at Warwick University in the late ‘sixties, I’d visit the Cathedral quite often and every Friday, I’d meet my aunt Isabel who would treat me to coffee and teacakes at the Owen Owen department store in Broadgate, the post-war shopping centre. More on the Cathedral and its history can be found at http://www.coventrycathedral.org.uk/wpsite/our-history/. (The first cathdral was actually built in 1043 by Leofric and Godiva, she of the legendary ride fame.)

I’m including this woven bookmark, a gift from Dad, because it is meant to be given as a gift of “A Bookmark by Cash’s, the Weavers of Coventry”. Cash’s was founded in 1846 and the holder for the bookmark says the firm was “one of the leaders of the 19th Century Coventry silk ribbon industry” and today “revive[s] a delicate early Victorian art-form”. Dad also gave me small framed woven pictures of birds produced by Cash’s. I am fond of these woven bookmarks and the birds, not only because I admire the workers’ skill they reflect, but also because they remind me of my dad.   

The last travel bookmark comes from Venice and shows the Rialto Bridge, over the Grand Canal. The bookmark is made (I think) of parchment paper and the design is very Italian. I also bought a small eraser with the design of a red domed church. This was an energetic trip, using Eurail passes to visit France, Italy and Switzerland. Harry and I bought several posters that are framed and spread about the house. We spent the night before we flew back home in a rather unpleasant hotel in Geneva and took the train to the airport. It wasn’t until we arrived at the airport that we realized that we’d left a tube of posters in the room. Harry raced to catch the train, which ran frequently, back into Geneva. I remained in the airport, imagining my options once they called boarding for the last time. He made it back, with little time to spare, with the tube in his hand. Fortunately, we didn’t take time to think through whether he should have gone and fortunately, we were relying on the Swiss train system!

The last few bookmarks are representative of different memories. 

The first comes from an exhibit in Toronto a few years ago that explored the way law has treated people of Chinese descent. For more, see http://www.roadtojustice.ca/home.

A different type of bookmark, made of metal,  is a souvenir of the Jessup Moot in 2001. The late Professor Don Fleming organized it when the Faculty of Law, University of New Brunswick, hosted it. I became very good friends with Don and his wife, Lesley Fleming, also a faculty member at UNB (in the Biology Department). They hosted a pizza night on Fridays, inviting a number of us who were on our own in Fredericton (we each contributed $5.00 and they made the pizzas and provided libations and other food). I stayed with Don and Lesley just before I left Fredericton for my trip to Calgary. Somehow we lost touch and I was shocked and devastated to learn that Don had died of cancer. Lesley, Harry and I have since renewed our friendship and we stayed with her when we visited Fredericton a few years ago. 

This is rather a special bookmark, given to me by a student when she finished her time with us at the Law Commission of Ontario. It is also made of metal, a simple strip, with the words, “It is true that those we meet can change us, sometimes so profoundly that we are not the same afterwards…” (Yann Martel, Life of Pi). I thought of Gita as someone with integrity and committed to certain values, stronger than I, when I knew her, in living in accordance with them.

This last is not really a bookmark, but can be used as one. It is really a card announcement for an exhibit by the Fredericton artist Janice Wright Cheney whom I met through her sister Joanna Wright. Joanna took a directed readings course in law from me at UNB when she studied political science there; she and her husband, Donald Wright (by chance both their last names are the same), are now teaching in the Department of Political Science at UNB. Janice is an accomplished artist who has been recognized for the excellence of her work. One of my great memories of Fredericton is her young son Thomas’s engagement with my campaign when I ran for federal office in 1997. Every year I invited some 50 or 60 women in different areas of life for a “Women’s Brunch”. (My sister, Karen, drove from Nova Scotia on those weekends, making a big difference in preparation and hosting. For my 50th birthday, she wanted to invite some of my male friends to the consternation of some of the regular attendees, one of whom could be heard muttering, “I thought this was a women’s brunch”. Harry rode his motorcyle from Toronto for the birthday brunch, staying with the Flemings the night before. When he arrived at my house, he pulled a bouquet of flowers from a saddlebag, causing some oohs and aahs.) For the 1995 brunch, Janice brought along a pile of cards for her Women & Fiction exhibit that we left on a table for guests to pick up. 

As do most readers, at least those my age and those who read books, I have many more bookmarks. They take little room, yet expand with memories of bookstores, trips, people and events that span almost a lifetime. It’s taken a while to finish this post for that reason (and because I’m still figuring out the workpress block system!). Still, the memories recounted here merely skim the surface in many cases.

Blog: Idle Musings

Who I am…Patricia Hughes, Founding Executive Director of the Law Commission of Ontario (2007-2015); former Dean of Law, University of Calgary; previously law professor; Alternate Chair, Ontario Pay Equity Tribunal; Vice-chair of the Ontario Labour Relations Board; Counsel, Ontario Ministry of the Attorney General; professor of political science

What My Blog is About….Whatever takes my fancy on legal, access to justice, political and sometimes more personal issues.  

Twitter: @phughes9112

The Patrick Smith Case: How the Canadian Judicial Council Went Wrong

When Justice Patrick Smith agreed to come to the assistance of the Bora Laskin Faculty of Law at Lakehead University in Thunder Bay by serving as unpaid Interim Dean (Academic) for six months while the school sought a permanent replacement for its early resigning dean, Angelique EagleWoman, it’s unlikely that he thought he was risking the end of his judicial career.

Dean EagleWoman had resigned because she had concluded that the school evidenced systemic racism. She followed another dean who resigned early in his tenure, founding dean Lee Streuser. In between the two, Professor Lisa Phillips of Osgoode had filled in as interim dean. The school needed some breathing space to get its house in order. Justice Smith, now supernumerary, who sits in Thunder Bay, seemed to provide that opportunity.

Probably Justice Smith thought he had dotted his i’s and crossed his t’s, having obtained approval for a six month leave from Chief Justice Heather Smith of the Ontario Superior Court, who in turn notified the federal Minister of Justice, Jody Wilson-Raybould. He must have felt some security in taking the position after being urged to do so by Senator Murray Sinclair, former chair of the Truth and Reconciliation Commission and former justice of the Manitoba Court of Appeal. Senator Sinclair was familiar with Justice Smith’s contribution to the legal landscape in Thunder Bay; they had worked together on a “bench book”, a guide to cases involved Indigenous parties.

Had Justice Smith thought any of this, he would have been wrong. Instead, he found his judicial career and reputation in jeopardy and his willingness to assist the school backfiring on both him and the law school as a result of a complaint to the Canadian Judicial Council.

One might have expected a complaint to come from the Indigenous community in and around Thunder Bay, since the law school had created for itself an identity based on an emphasis on Indigenous law  and Justice Smith, not Indigenous, had replaced, even if temporarily, an Indigenous dean. Indeed, a decade ago, Justice Smith had sentenced members of the Kitchenumaykoosib Inninuwug (Big Trout Lake) Council to prison for contempt of court when the Nishnawbe Aski Nation had been fighting against mineral activity on their traditional territory on the basis that the land was theirs. Given that history and lack of consultation on this (temporary) appointment, the Nishnawbe Aski Nation considered the selection of Justice Smith “an insult”. Discussions between the university and the Aboriginal Advisory Committee to the law school, however, seem to have diminished the impact of this controversy prior to Justice Smith’s assumption of the position and according to the chair of Lakehead’s Board of Governors, during his three months at the law school, Justice Smith had “strengthened relations with the Indigenous community and the Faculty’s Aboriginal Advisory Committee“.

Whether a complaint from the Indigenous community or some part of it would have warranted a review of the judge’s conduct is a matter of conjecture, however, since they did not make a complaint. In fact, the actual complaint against Justice Smith came from a source internal to the CJC: its long-time executive director, Norman Sabourin, who took it upon himself to raise the issue of  controversy around Justice Smith’s willingness to take the appointment at Lakehead. The vice-chair of the CJC’s conduct committee, Senior Associate Chief Justice Robert Pidgeon of Quebec, raised the stakes by referring Sabourin’s complaint to a review panel. And suddenly Justice Smith, who had simply responded to the call to assist a law school in need, faced an ignominious end to his judicial career, with removal from the bench on the line.

Justice Smith commenced the appointment on June 1, 2018. On August 28th, Pidgeon ACJ referred the matter to a Review Panel and Justice Smith subsequently resigned the position of Interim Dean (Academic) and resumed his judicial duties.

Following Pidgeon ACJ’s initial finding that Justice Smith had engaged in conduct that might warrant his dismissal, members of the legal community wrote letters objecting, including a group of 36 lawyers from Thunder Bay and the Canadian Superior Courts Judges Association and the Ontario Superior Court Judges Association. Senator Sinclair also spoke out in support of Justice Smith. Their main message was that Justice Smith had stepped up to assist a law school in difficulty, described by Senator Sinclair as acting “according to the highest standards of the judiciary”.

The Review Panel, in its report of November 5th, while finding Justice Smith should not have taken the position, also decided not to refer the matter to a committee of inquiry because it concluded that his conduct did not warrant dismissal from the bench. The furor caused by the review of Justice Smith’s misconduct and the somewhat difficult situation that would result had the review panel recommended dismissal, thereby involving Minister of Justice Wilson Raybould (who had indicated she had no concern when notified of the leave request by Chief Justice Smith), may or may not have had an impact on the Review Panel’s decision. Justice Smith’s good intentions, lack of “bad behaviour” and resignation did play a part, according to the Report.

I’m relying on the Report of the Review Panel’s detailed account of the events leading up to Mr. Sabourin’s complaint for background.

Mr. Sabourin’s involvement occurred just over a week after Chief Justice Smith had approved Justice Smith’s request for leave on April 30, 2018. Mr. Sabourin wrote to Justice Smith on May 9th, warning him that his taking the position might mean Justice Smith’s conduct would be subject to the CJC’s consideration. Chief Justice Smith then assumed the communications with Mr. Sabourin.

In her May 11th reply two days after Mr. Sabourin’s initial letter to Justice Smith, Chief Justice Smith referred to an “‘existential crisis’ at the Faculty and the need for Justice Smith to provide the Faculty with stability by way of a leader with ‘appropriate gravitas and experience'” (para. 18 of the review decision). (In her letter to the Minister of Justice, the Chief Justice had also noted that the appointment would reflect the court’s commitment to the recommendations of the Truth and Reconciliation Committee.) The Chief Justice explicitly noted that she had taken the Ethical Principles for Judges into consideration in determining whether to grant Justice Smith leave. (Thus, for example, the terms of appointment would limit Justice Smith’s role to academic leadership and all other responsibilities would be delegated to other members of the Faculty and he would recuse himself from any litigation involving Lakehead.)

Mr. Sabourin indicated that the matter had been referred to Pidgeon ACJ. The Chief Justice reaffirmed her support for Justice Smith in a letter to Pidgeon ACJ, enclosing a legal opinion letter supporting allowing Justice Smith to accept the position, given the constraints on its exercise. Justice Smith responded to questions from Pidgeon ACJ.

While the Review Panel decided it was not appropriate to constitute an inquiry committee, recognizing that Justice Smith meant well (and by then he had in fact resigned, having no choice but to leave the law school high and dry), it did hold that Justice Smith had been wrong to accept the position. It explicitly found that he had contravened section 55 of the Judges Act, mandating a judge’s duties, a conclusion I suggest below was founded on an incorrect interpretation of section 55 and of the relationship between section 54 of the Judges Act, permitting judicial leave, and section 55. It also found that Justice Smith’s conduct was inconsistent with the CJC’s Ethical Principles for Judges, which it appeared to incorporate into the application of section 55. The Review Panel’s decision is confusing, since it both treats section 55 as absolute and also as modified by the ethical principles (I address this below).

As required, the Review Panel tossed the ball back into Associate Chief Justice Pidgeon’s court (as it were) and he determined it was sufficient to express his concerns to Justice Smith and not recommend further action.

Section 55 of the Judges Act states, “No judge shall, either directly or indirectly, for himself or herself or others, engage in any occupation or business other than his or her judicial duties, but every judge shall devote himself or herself exclusively to those judicial duties”.

(I note briefly that the meaning of “occupation or business” in section 55 and whether it includes non-remunerative activities is also at issue. The Review Panel, considering the French provision, which refers to “activité”, section 55’s legislative history and what it considers to be explicit exceptions under section 56 of the Judges Act to the prohibition in section 55, concludes that “occupation or business” includes non-remunerative activity (Report, paras. 46 and 47) . However, others, including Chief Justice Strathy of the Ontario Court of Appeal, find that this is not realistic, since it would prevent judges from undertaking even hobbies (p.7 of Pidgeon ACJ’s referral). In fact, it flies in the face of the various kinds of activities even sitting judges engage in on a regular basis, such as teaching law courses.

The Review Panel concluded that “Justice Smith should not have accepted the appointment as Interim Dean (Academic) and by doing so, he contravened section 55 of the Judges Act” (para. 37; also see paras. 5 and 76).  To understand this conclusion, it is crucial not only to appreciate the Review Panel’s broad interpretation of “occupation or business”, but also, perhaps more significantly, its interpretation of how section 55 and section 54 relate to each other.

For the Review Panel, section 55 “has always been comprised of two foundational components”: these are “[a] prohibition on judges carrying on extra-judicial activities” and “[a] requirement that judges devote themselves exclusively to their judicial duties” (Report, para. 38). In its view, section 55 applies regardless of whether a judge is on leave. Therefore, although judges obviously cannot adhere to the second part of the provision when they are on leave (they cannot devote themselves exclusively to their judicial duties when they have none), they must nevertheless refrain from undertaking other activities. (It is worth noting that the French version identifies the duty more elegantly: “Les juges se consacrent à leurs fonctions judiciaires à l’exclusion de toute autre activité, qu’elle soit exercée directement ou indirectement, pour leur compte ou celui d’autrui.” The French says that a sitting judge should carry out his or her functions to the exclusion of other activities, but it does not seem as easily to be broken into two “foundational components” and therefore seems more clearly to apply to sitting judges only.)

Section 54 of the Judges Act sets out the process for a judge to obtain leave. (Under section 54, leaves of up to six months require the approval of the chief justice of the Superior Court of Ontario and leaves over six months require approval of Cabinet.) The leave permitted by section 54 is described as “leave of absence from his or her judicial duties“. (The French refers only to “leave”.) That is to say, that the judge will not be performing his or her judicial duties while on leave.

The Review Panel observes that there is “nothing in the language [of section 54]…to suggest leaves…may be granted to enable judges to take on responsibilities outside of the judicial sphere” (Report, para. 51). The only exceptions, in the Review Panel’s view, are circumstances such as illness or parental leave (para. 49) and those it treats as provided for by the Judges Act in section 56 (such as acting as a commissioner, arbitrator or mediator, among other roles for which judges cannot under subsection 57 (1) receive remuneration).

I suggest the Review Panel’s interpretation of section 55 and its relationship to section 54 are incorrect.

First, it does not really make sense to say that a judge on leave cannot undertake other substantive activities, although these would have to be consistent with the Ethical Principles, and presumably only with the approval of the chief justice as an aspect of approving the leave. A leave is a “leave from judicial duties” and thus it can be argued that a leave takes the judge out of section 55, except to the extent that other than for unavoidable reasons, the leave would not be granted if it interfered with the court’s ability to function effectively, for example. While section 54 does not specify the purpose of permitted leaves, nor does it limit activities for which leave will be granted.

Second, one may question whether the Review Panel is correct in treating  section 56 as exceptions to the general rule. It does not actually say words to the effect of “judges may undertake the following activities without contravening section 55: commissioner, arbitrator, adjudicator, referee, conciliator or mediator on any commission or on any inquiry or other proceeding”. Rather, it places a precondition on accepting these roles (roles that are akin to judicial duties): if the matter is within the legislative authority of Parliament, the judge must receive the authorization of Parliament; there is a similar provision for matters within the legislative authority of provincial legislatures. In addition, subsection 57(2) addresses remuneration, contemplating that judges might perform functions other than those identified in section 56:  section 56(1) does not apply if a judge has the right to receive remuneration under a provincial statute “other than for acting in any capacity described in subsection 56(1), …, but no judge is entitled to receive remuneration under any such Act or Acts in an aggregate amount exceeding $3,000 per annum”.

In short, the Review Panel interprets section 55 rigidly by specific interpretations and applications of sections 54, 56 and 57. Yet this ignores the reality that judges do engage in activities other than their judicial duties, whether they are sitting or on leave. A more reasonable interpretation of sections 54 and 55 would be that judges are not to undertake any activities that would interfere with their judicial duties when they are sitting and that they are able to undertake more substantive activities when they have been granted leave.

This alternative interpretation is consistent with the CJC’s own Ethical Principles for Judges, which refer to a wide range of activities beyond actual judicial duties in which judges might (and do) engage. The Ethical Principles states explicitly that “judges are free to participate in other activities that do not detract from the performance of judicial duties” (p.18). The Principles say that judges being “active in other forms of public service … is good for the community and for the judge” (p.33). Sitting judges, never mind judges who have taken a leave, teach courses in law schools, judge moots, give speeches and write articles and books and serve as judges-in-residence, among other activities beyond the bench. Judges are able to sit on boards of appropriate organizations. They are encouraged to sit on law reform commissions, given their expertise in law. A sitting judge may serve as a University Chancellor (see discussion of such an instance at p.10 of Pidgeon ACJ’s Reasons for Referral and at p.62 of the Review Panel’s Report, as well as the reasons for dismissing a complaint by a retired judge).

The Review Panel’s Report shows the difficulty of its interpretation of section 55 of the Judges Act, while at the same time acknowledging that the CJC’s own ethical principles contemplate that a judge may legitimately (while exercising caution) engage in activities that are not “judicial duties”, whether on leave or continuing to sit. In trying to reconcile the principles with the Act, the Review Panel twists itself into a knot to determine that Justice Smith had been wrong to accept the position, that is, to have engaged in misconduct, by grounding its conclusion in section 55.

I suggest that the focus in the Smith case would more appropriately have been on the Ethical Principles, rather than section 55. The Principles caution, for example, that regardless of the activity, judges should seek to avoid controversy, noting that “unfair or uninformed criticism … can adversely influence public confidence in and respect for the judiciary” (p.14). More specifically, they “should avoid involvement in causes or organizations that are likely to be engaged in litigation” (p.20).

The Review Panel has to acknowledge that judges do undertake non-judicial activities, such as those I referred to above, but it also notes, echoing the Ethical Principles, that there are limitations: the judge must maintain independence and impartiality (by not accepting remuneration or becoming involved in fundraising); “avoid[] public controversy” and conflicts of interests (or appearances of bias); consider whether it could be appropriate to become a spokesperson for an organization; and “avoid[] the perception that the judge has lent his or her judicial status to enhance the credibility or prestige of the outside organization”. (Report, para. 59)

In its decision, the review panel found that the appointment gave rise to problems that the conditions and limitations Justice Smith (with Chief Justice Smith) imposed on his role as Interim Dean (Academic) were insufficient to address: avoidance of public controversy and of conflicts; his appearing to be a public spokesperson for the school; and his lending his judicial status to the school (and by extension, that of the court).

Almost all, if not all, the activities referred to in the Ethics Principles, as well as others, can give rise to controversy. Boards of directors, as the Ethical Principles point out, may be involved in disputes with staff or breaches of government regulations (p.36) and even ceremonial university position holders are usually required to speak publicly for the university,

The university did think that Justice Smith’s stature and reputation as a member of the judiciary would assist the law school in moving past its difficulties; both Justice Smith and the Chief Justice acknowledged that. However, the members of the Review Panel are naive if they think that any organization that seeks the involvement of a member of the judiciary is not doing so in part, at least, because it expects that the judge will enhance its credibility or prestige. There may be ways in which this is manifested that are less desirable than others (in Justice Smith’s case, for example, he apparently wore his robes for a photograph for the school’s website, not the best course of action), but it is a benefit to organizations to be able to point to a judge that considers their activities sufficiently worthwhile to participate in them in some way.

It is often difficult to predict if and when an organization with which a judge has become associated may become embroiled in litigation (or if not the individuals themselves, the university) (p.37). Not only does this give rise to public controversy, but could make it difficult when the litigation is before the judge’s court, even though the judge recuses herself or himself. Here, though, no one should have been surprised that the former dean has launched a lawsuit against Lakehead.

This situation raised concerns. The fact is,however, that a judge’s involvement in law reform or scholarly writing may inadvertently offend people and lead to complaints. The real question isn’t whether there is a risk of controversy or litigation, but how foreseeable it is and what steps are taken to protect the reputation of the judiciary.

It seems that the CJC decided to make an example of Justice Smith, using his situation to “clarify” the kinds of activities judges can legitimately undertake outside their “exclusive” devotion to their judicial duties.

For whatever reason, the Review Panel insisted on an interpretation of section 55 of the Judges Act that cannot be sustained; it is contradicted by the CJC’s own Ethical Principles. The better view is that Justice Smith obtained a leave and therefore was able to accept the full-time, albeit voluntary, position of Interim Dean (Academic). He did not breach section 55.

The issue than becomes whether he was in contravention of the Ethical Principles. It is not clear why it is necessary to determine whether a judge is in breach of section 55 as a preliminary step to find that he or she has acted unethically, although this seems to be the Review Panel’s view. Put another way, because the Review Panel concluded that Justice Smith’s conduct contravened some of the ethical principles, it concluded he also contravened section 55.

Finally, there is one other major issue that should be addressed: that is that the biggest controversy in all of this has been the CJC’s decision to entertain the Sabourin complaint against Justice Smith. It is this action that created the publicly expressed anger of the Canadian and Ontario judges associations,  Thunder Bay lawyers, Senator Sinclair and others. Furthermore, the CJC’s decision to go ahead with the complaint even though Justice Smith had sought a stay from the Federal Court of the CJC proceedings also raised controversy, particularly because the CJC has taken the position, initially unsuccessful at trial, that the Federal Court has no jurisdiction to review its proceedings.

Mr. Sabourin, who initiated the complaint against Justice Smith, speaking,  for the CJC, said, “…judges and the public alike will benefit from greater clarity regarding the permissible scope of activities for judges that are outside their normal judicial duties“. The CJC’s rather confusing treatment of sections 54 and 55 and their relationship to the Ethical Principles is unlikely to achieve that goal. Furthermore, the controversy will continue since Justice Smith’s lawyer has amended his application to request a declaration that Justice Smith did not contravene the Judges Act. Both the Canadian Superior Court Judges Association and the Ontario Superior Court Judges Association are intervenors.

If the CJC’s unarticulated goal was to discourage judges from contributing to the common weal in appropriate situations, it may have succeeded. Given the public response to its treatment of Justice Smith’s efforts to provide a helping hand to his community, it has also succeeded in doing exactly what its own ethical principles warn against: jeopardizing the dignity and prestige of the judiciary.