Judicial Council Overturned on Dean Appointment

The Bora Laskin Faculty of Law was founded in 2013, to much fanfare. It was the first Canadian law school to offer an integrated licensing curriculum, and has mandatory courses in Aboriginal law.

Since that time, the school has also had its challenges, most significantly, the resignation of Angelique EagleWoman as Dean in June 2018, citing systemic racism in the law school. Given that she was the first Indigenous law dean in Canada, this resignation sent shock waves throughout the school.

EagleWoman expressed these concerns internally in writing as early as March 7, 2018, leading the university to request that the Honourable H. Patrick Smith of the Ontario Superior Court of Justice take the position of Interim Dean. The Chief Justice approved this special leave of absence, pursuant to subsection 54(1)(a) of the Judges Act, but provided several conditions:

  • the temporary appointment would not be a paid position;
  • the position would be solely to provide academic leadership;
  • the University would be required to make other arrangements for
    financial and administrative decision making and education appeals;
  • no involvement in fundraising on behalf of the Faculty or the University, whether from governmental or non-governmental sources;
  • particularly sensitivity in making public statements;
  • continued vigilance about avoiding conflicts or potential conflicts;
  • notify the Chief Justice immediately should circumstances change or should any issues arise which might raise ethical implications or lead to public controversy; and
  • Attempt to facilitate and expedite the Faculty’s process of appointing a permanent Dean

It would not be the first time that a judge has served as dean at a Canadian law school. In 1949-1950, Gérald Fauteux, the former Chief Justice of the Supreme Court of Canada, served as the dean at McGill, in 1953-1962 a judge of the Superior Court of Quebec served as dean at Ottawa, and in 1999 Justice Gillese of the Ontario Court of Appeal served as Chancellor of Brescia College.

In part, Lakehead’s request was intended to provide the law school some stability, but it was also based on his experience as a judge and his professional and academic work around Aboriginal law. However, Justice Smith is not Indigenous himself.

On the tail of EagleWoman’s resignation, the move was inevitably going to be controversial. Several community members objected to this appointment, including many Indigenous members of the community who had concerns and complaints. Ultimately, the Executive Director of the Canadian Judicial Council referred the matter to the Canadian Judicial Council, on the basis of a potential breach of s. 55 of the Judges Act,

55. 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 interpreted the leave provisions of the Judges Act as not removing the prohibition against judges carrying on other occupations or business,

[49] …The legislation recognizes that in the working life of a judge, circumstances may arise in which a judge may require a leave of absence, such as an illness, a period of recovery from accident or a parental leave. Section 54 is not an enabling measure, providing judges with the opportunity of excusing themselves from their judicial duties and responsibilities, while they become active in pursuing extra-judicial activities.

[55]…A judge’s ethical obligations, including the obligation pursuant to section 55 not to engage in other occupations or businesses, remain constant, whether or not a judge is on leave.

They distinguished previous cases of judges serving at universities due to shifting societal norms, increased concerns around controversy, limitations placed on previous judges in these roles, and the ceremonial nature of such roles. This was not the situation that Justice Smith found himself in:

[71] In the circumstances which existed in May 2018, Justice Smith was facing a choice fraught with risk and controversy. The circumstances and public debate surrounding the situation at the Law School had the potential of exposing Justice Smith to criticism and unwelcome publicity inconsistent with the dignity of judicial office.

[76] … Regardless of the interpretation ascribed to sections 54 to 56.1 of the Judges Act, Justice Smith has an ethical obligation as a judge to avoid involvement in public debate that may unnecessarily expose him to political attack or be inconsistent with the dignity of judicial office…

The Review Panel clearly stated this is not a case of bad behaviour or improper motives by Justice Smith, which prevented this conduct from being serious enough to warrant a removal. No further measures were necessary, as Justice Smith had already resigned as Interim Dean and resumed his judicial duties.

Regardless, Justice Smith sought judicial review before the Federal Court in Smith v. Canada (Attorney General), where the court concluded he did not breach his judicial ethics or section 55 of the Judges Act. However, the court went even further, indicating he was denied procedural fairness and that it was an abuse of process.

Justice Zinn applied a standard of reasonableness in reviewing the decision. In a post-Vavilov world, judges will not extend deference to the judges who judge the conduct of judges, on the basis that they have expertise in the subject matter. This is a stark departure from the approach used in previous decisions, such as in Moreau-Bérubé v. New Brunswick (Judicial Council), where the Court stated,

44 Judicial councils may be viewed as unique not only amongst administrative tribunals but even amongst professional disciplinary bodies. A tribunal charged with the task of disciplining provincial court judges does not fit into the more traditional specialized against non-specialized dichotomy for purposes of evaluating the appropriate standard of review…

49 … It is fair to say that the Council, in this case, is a tribunal with a rich and wide-ranging collection of judicial expertise. The Council is eminently qualified to render a collegial decision regarding the conduct of a judge, including where issues of apprehension of bias and judicial independence are involved. There is no basis upon which one could claim that a single judge sitting in judicial review of a decision of the Council would enjoy a legal or judicial advantage.

Justice Zinn responded to this case as follows,

[65] …With respect, I may not enjoy a legal or judicial advantage to the Review Panel, but neither do I suffer any disadvantage. Indeed, one might ask what advantage the Review Panel has in this matter in light of the Attorney General and two judges’ associations, one of which represents superior court judges across Canada, expressing the view that the Review Panel’s decision is unreasonable. The point surely is that judicial review is not a quantitative analysis, but a qualitative one; one judge is as well placed as several when performing that task.

In interpreting the Judges Act, the court found that the Review Committee interpreted the prohibition against extra-judicial activities in isolation from its context,

[90] In neither language do these words support the conclusion of the Review Panel that the intent of Parliament was to restrict judges from performing non-remunerative engagements. To the contrary, they are focused on remunerative commercial engagements.

[100] The Review Panel’s interpretation of “occupation” as including “non-remunerative pursuits and activities gives it a much broader definition than the word “vocation.“Pursuits and activities” includes most of what one does in daily life, including taking children and grandchildren to soccer and ballet classes, attending choir practice, going to the gym, quilting and knitting, etc. Again, as was pointed out to counsel at the hearing, the phrase “pursuits and activities” includes writing a mystery novel. Even if written at night and on weekends, as our former Chief Justice did, is that a nonjudicial activity done in a judge’s productive time? If so, did the former Chief Justice of Canada breach section 55 of the Judges Act in doing this prior to her retirement? Her activity certainly conflicts with the interpretation of section 55 given by the Review Panel.

Justice Zinn also noted that nothing in the leave of absence provisions in the Act prevent a judge from taking on responsibilities outside their judicial duties, and that Justice Smith was also limited to academic matters while at the law school. Instead, the creation of potential ethical problems stemmed from media reports, potential loss of the school’s accreditation, and discontent from the Indigenous community. These concerns did not rise to the level of an ethical concern,

[129] The CJC submits, “Judicial ethics prohibit the prestige of judicial office from being used to bolster the reputation, status or public confidence in extra-judicial organizations.” The Ethical Principles do not make that broad statement. Section C1 under Statement 6 dealing with impartiality provides that while judges are free to participate in “civic, charitable and religious activities” they “should not solicit funds … or lend the prestige of judicial office to such solicitations.” The commentary to that Section repeats the same in C.6. C.10 speaks of using the prestige of judicial office to advance a person’s private interests.

[130] The association of a judge with any extra-judicial organization will, to some degree, bolster its reputation, status and public confidence. It is for precisely that reason that law schools seek to have judges teach. I daresay it was also for such reason that McGill and Ottawa Law School sought out Justice Fauteux as their Dean, and Brescia University College sought out Justice Gillese as its Chancellor. If that were the test, then no judge could ever join or participate in any extra-judicial civic, religious, or charitable organization.

Finally, the court concluded there was an abuse of process, and that Justice Smith was denied procedural fairness, given that he was not provided any of the public comments or statements about his appointment,

[164] A finding of judicial misconduct may result in the removal of the judge from office. In Baker v Canada (Minister of Citizenship and Immigration)1999 CanLII 699 (SCC)[1999] 2 SCR 817, the Supreme Court observed that the duty of procedural fairness is flexible and variable and depends on an appreciation of many matters. These were said to include: (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the agency itself.

[165] Specifically, at paragraph 26, it was observed, “The importance of a decision to the individuals affected … constitutes a significant factor affecting the content of the duty of procedural fairness.” That factor alone, in the context of a complaint regarding judicial conduct, points to the CJC being required to accord a judge significant procedural fairness.

Given that the seriousness of the matter potentially warranted the removal of a judge, the information around the case should have been provided to Justice Smith in advance.

The involvement and approval of the Chief Justice in this case was particularly important in this case, as it illustrates how ethical concerns and issues can potentially be resolved or addressed in a cooperative manner. The court also interpreted a letter from the Minister as also approving the appointment, which the Review Panel provided no weight to. The open and transparent manner in which this occurred bolstered the ethical nature of the process observed in this case.

Judges play an especially important role in our communities, ones that are not limited to the bench. Some members of the public go as far as saying that judges today are too far removed from their communities, and have little context or depth about the factual matters they may adjudicate over. The justice system as a whole is already too intimidating and distant for many marginalized members of society, and the judicial members who preside over that system should not be shuttered away in gilded cages.

This decision is particularly important in clarifying that judges are not prohibited from all non-judicial activities, especially where they do not impair the ability to perform judicial duties. Ensuring there is a mechanism and an ability to be involved in appropriate ways helps alleviate ethical and societal concerns, and has the potential to enrich the experiences of the bench further.

Comments

  1. Thanks Omar, that’s very helpful. I had forgotten that the review panel decision had been posted online.

    The CJC has now complied with the order to post the FC decision on its website, and has decided not to appeal. But I think this story is not over. And neither it appears is the quest to clarify section 55.

    One of Justice Zinn’s comments in particular caught my attention. At paragraph 100 – which you quoted – he says that the former Chief Justice’s writing of a “mystery novel” “certainly conflicts with the interpretation of section 55 given by the Review Panel.”

    I’m not inclined to agree with that. The penning of a novel in one’s own time qualifies as a hobby, and nothing more. Where I would say she did contravene section 55 was in negotiating to have the novel published. That turned a hobby into a business venture, and section 55 says that judges may not “engage in any occupation or *business* other than his or her judicial duties”.

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