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.