In its report of November 5, 2018, a review panel of the Canadian Judicial Council (CJC) found Justice Patrick Smith, a supernumerary judge of the Ontario Superior Court, had acted breached the Judges Act and the CJC’s Ethical Principles for Judges (these are currently under review) by taking a position that was susceptible to controversy, that of unpaid interim dean (academic) at the Boris Laskin Faculty of Law. The Review Panel concluded, however, that his conduct did not warrant removal from the bench. In November 2018, I posted a comment on my blog, Idlemusings, about “the Patrick Smith case”, explaining why I thought the CJC had misinterpreted the Judges Act. The Globe and Mail reports Justice Smith has now sought judicial review of the review panel’s report.
Justice Smith’s challenge to the CJC’s decision was stymied earlier because the CJC was arguing in another case, Girouard, that it was not subject to judicial review. The CJC was unsuccessful at trial in Federal Court and on appeal in the Federal Court of Appeal (Justice Smith intervened in the latter case). The Supreme Court of Canada dismissed the CJC’s application for leave to appeal the FCA’s decision.
Both levels of of the Federal Court provided detailed reasons, even though the FCA was in complete agreement with those of Justice Noël in the FC, often an invitation to write a more succinct judgement. I merely summarize some main points here.
The CJC argued it was not a “federal board, commission or other tribunal” within the meaning of section 2 of the Federal Courts Act. The CJC had maintained that its jurisdiction and powers derived from the constitution, a position rejected by both the FC judge and the FCA panel. Rather, its powers derive from sections 60(2)(c) and (d) and 63(1) and 63(4) of the Judges Act (it is constituted under section 59 of the Judges Act). That is, “the Council’s investigative power is strictly statutory” (Girouard, FCA, para. 46)
Furthermore, both decisions held the focus is on the body or institution that exercises the powers, not the individuals. The CJC’s submission was that because its members are superior court chief judges, the CJC’s “powers and jurisdiction of its members are judicial in nature” and therefore not subject to judicial review (Girouard, FCA, para. 47). Rather, the trial judge and the FCA found that the powers are “investigative”(Girouard, FCA, para. 49). And the judges are not acting as individuals as judges do; the FCA agreed with the trial judge:
we are dealing with “members of a single collectivity who, acting together as an institution, submit a report and conclusions. Within the [Council], the judges and other members become part of this collective identity when undertaking an inquiry. The identity of the [Council] is [therefore] separate from that of its components” (Girouard, FCA, para. 73, citations omitted) (see FC, at para. 88).
The FCA also agreed with the trial judges that the members of the CJC are chief justices, sitting on the body in that role, which is “‘administrative in nature'”, and not in their judicial capacity (Girouard, FCA, para. 77) (indeed, not all the members are section 96 judges, some have been appointed under section 101 of the Constitution Act, 1867).
The trial judge did not merely dismiss all the CJC’s arguments (as did the FCA), but also criticized its conduct in relation to the hearing (see Girouard, FC, paras. 173 to 183). Among other negative comments, Justice Noël lambasted the executive director of the CJC for his perfunctory treatment of the Federal Court and for speaking to the Lawyer’s Daily about the case (Girouard, Fc, paras. 173 and 175). (The FCA made no reference to these comments.)
The SCC’s dismissal of the CJC’s application for leave to appeal Girouard paved the way for Justice Smith to seek judicial review of the CJC’s decision in his case. According to The Globe and Mail, “Justice Smith … says in a court document he has a strong case the council committed an “abuse of process,” in part because it carried on with its disciplinary process even after he went to court to try to stop it.” He submits in his application,
The council abused its process, which culminated in an unreasonable interpretation of the Judges Act that would put at risk of judicial discipline every federally appointed judge who engages in activities outside the courtroom that contribute to the legal profession or their communities.
Justice Smith had responded to a request to serve as unpaid interim dean (academic) of the Bora Laskin Faculty of Law at Lakehead University following the resignation of Dean Angelique EagleWoman who had accused the university of systemic racism. Dean EagleWoman had replaced the previous dean who had also resigned before the end of his term (replaced for six months by interim dean Lisa Philipps, an Osgoode Hall Law School professor and administrator). Justice Smith had served as a judge and had been a lawyer in Thunder Bay and thus had a connection to the community and was highly respected (other than in relation to a decision to which I refer below). Senator Murray Sinclair, former chair of the Truth and Reconciliation Commission and former justice of the Manitoba Court of Appeal, encouraged him to take the position.
As required by the Judges Act, Justice Smith had obtained the approval of his chief justice, CJ Heather Smith, who in turn had cleared the appointment with the federal minister of justice, Jody Wilson-Raybould, and he took a leave in order to serve as interim dean. Although members of a local First Nation had expressed criticism of Justice Smith because of a decision finding members of the First Nation guilty of contempt, this concern appeared to have been addressed prior to his appointment.
No one filed a complaint with the CJC until the executive director of the CJC took it upon himself to make a complaint. It was clear that Justice Smith was to be a test case to determine the limits of permitted extra-judicial activities. Local lawyers and the Canadian and Ontario Superior Court Judges Associations expressed support for Justice Smith (the Canadian Superior Courts Judges Association intervened in Girouard at the FCA stage) and Senator Sinclair also expressed his support, describing justice Smith as acting “according to the highest standards of the judiciary”.
Once the ED filed the complaint, Justice Smith resigned as interim dean and returned to his duties as a supernumerary judge. Senior Associate Chief Justice Robert Pidgeon of Quebec, vice-chair of the CJC’s conduct committee, found that the matter should be referred to a review panel because it might potentially warrant removal from the bench. The Review Panel found Justice Smith’s conduct did not call for removal from the bench and therefore did not refer the matter to an inquiry committee. It did, however, find that Justice Smith had contravened section 55 of the Judges Act and the CJC’s Ethical Principles for Judges. Associate Chief Justice Pidgeon determined it would be sufficient that he speak with Justice Smith and no further action be taken.
In my earlier post on Idlemusings.blog, I analysed the review panel’s consideration of sections of the Judges Act, which apply to judges’ extra-judicial activities. In my view, these provisions do not lead to the conclusions the review panel reached and, as Justice Smith contends, would result in many (if not most) of the activities in which judges engage, whether on leave or not, being off-limits. As a former law school dean, I am well aware of the value judges bring to the law schools, for example, in teaching, judging moots and other activities, and these are only some of the contributions judges make beyond the bench without interfering with their judicial duties. This does not mean that there are not limits, just that the CJC’s position goes far too far. I reproduce that analysis here:
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”.
[The review panel discusses whether “any occupation or business” includes non-remunerative activities, maintaining that it does; however, others argue that it does not, since to include them would prohibit even activity agreed by everyone to be innocuous. (see the review panel’s report, para. 46 and 47, and Pidgeon ACJ’s referral, p.7).]
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” ([Review Panel] 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. … 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 [is] 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 state 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 [when judges are] “active in other forms of public service …[it] 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. ….
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.
It seems that the CJC had concerns, for good reason or not, about the nature of activities in which judges engage beyond their judicial duties, or at least its executive director did, and that the Patrick Smith case provided an opportunity to explore how far those extra-judicial (or non-judicial) duties could extend.
It is true the situation at the Bora Laskin Faculty of Law was somewhat controversial; to avoid the ramifications for Justice Smith, his position was deliberately changed from “interim dean” to “interim dean (academic)”; he would also recuse himself from any litigation that might raise a conflict of interest. Yet many activities have the potential for controversy: judges who teach do so, of course, in their areas of expertise and may well express a view on a matter that might come before their court; judges who judge moots might ask questions or provide input that appears to raise a suspicion of bias; judges who write books are obviously stating positions on the law. I could go on, but in reality judges engage in these and many other activities without any difficulty and have for many years.
As the Ethical Principles (in their current form, at least) explain, there are benefits to judges’ participation in activities in the legal community and beyond, for both the judges and the communities. The CJC’s interpretation of sections 54 and 55 of the Judges Act is wrong on the basis of statutory analysis and in principle. An appropriate interpretation, one that acknowledges that judges do engage in activities other than their judicial duties, does not open the floodgates, just as, in the vast majority of cases, these activities today are within reasonable bounds. And it is reasonable that some activities are compatible with judges’ continuing to undertake their judicial duties and some are not. Some kinds of activities are acceptable only if the judge is on leave. And some activities (operating a business, for example) are likely not acceptable at all. In all cases, the activities must not impair the functioning of the court, including the availability of its judges.
Once the Federal Court determines the correct interpretation of sections 54 and 55 and related provisions of the Judges Act in the Patrick Smith case, the more difficult question in at least some cases will be whether any given activity is inconsistent with judicial independence, conflict of interest and integrity or other ethical principles. The CJC’s current approach in the Patrick Smith case, on the other hand, is absolute and does not lend itself to a more nuanced consideration of judges’ activities outside the courtroom.