On May 21, 2020, the Federal Court released a decision (2020 FC 629) strongly in favour of Justice Patrick Smith, a judge of the Ontario Superior Court of Justice, and highly critical of the Canadian Judicial Council. It is unfortunate that the decision is so one-sided. The CJC deserves some of the criticism. However, the position taken by the CJC is not as untenable as the court claims. More importantly, there is legitimate cause for concern about Justice Smith’s conduct.
This litigation arises from events in the spring of 2018 when Justice Smith accepted an appointment as the Interim Dean of the Bora Laskin Faculty of Law at Lakehead University. Shortly thereafter the CJC raised concerns about this appointment with Justice Smith and then appointed a Review Panel to consider his conduct. In November 2018 the Review Panel concluded that in accepting the appointment Justice Smith had breached section 55 of the Judges Act and had breached his ethical obligations as a judge. Justice Smith brought judicial review proceedings in Federal Court and has now been successful in having the Review Panel decision quashed.
Section 55 requires judges not to engage in any “occupation or business” other than his or her judicial duties. To serve as Interim Dean, Justice Smith took a leave of absence under the Judges Act and he was not paid by the university for his service. In finding that Justice Smith had breached this provision the Review Panel adopted an unacceptably broad interpretation of its wording and an unduly narrow understanding of the permitted bases for a leave of absence. The Federal Court, quite correctly, held that the Review Panel’s analysis and conclusions on this issue were unreasonable.
In addition, the Review Panel had concluded that “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. There were also reputational risks to Justice Smith and to the Ontario Superior Court of Justice associated with lending their support to the Faculty”. The Federal Court held this was also unreasonable.
The Federal Court based its decision on this issue on three key points. First, “significant conditions were agreed upon that removed Justice Smith from the administration of the Law School and the university”. His role was limited to academic matters and was in essence “ceremonial”. Second, Justice Smith indicated that “he would recuse himself from any litigation in his Court relating to the University”. The Federal Court thought this “removes all possibility he would be in a conflict of interest”. Third, it was not improper that the “association of a judge with any extra-judicial organization will, to some degree, bolster its reputation, status and public confidence”.
The handling of the ethical issues is the weakest aspect of the Federal Court’s decision. First, despite the conditions attached, the role Justice Smith was playing was not akin to that of a university Chancellor. The position of Dean is one of senior management and administration within a university. The university expected him to have an impact on matters of substance. This is supported by the university’s initial request to him, seeking to draw on his “knowledge, skills, and experience as a Judge” and “significant work with Indigenous communities”. The university told him these attributes were “critical to the ongoing evolution and success” of the Faculty of Law. This understanding of the nature of the work is also supported by Justice Smith’s own recognition that his involvement would require subsequent recusal in respect of any litigation involving the university. None of this is consistent with the notion that his role was purely ceremonial. Indeed, the Federal Court, after listing some of the duties performed by his as Interim Dean, acknowledges that “these arguably take his role outside a purely ceremonial one”.
Second, rather than relying on their ability to recuse cases in the future, judges should actively avoid situations that would necessitate their recusal in the first place. One of the key Ethical Principles is that “Judges should as much as reasonably possible conduct their personal and business affairs so as to minimize the occasions on which it will be necessary to be disqualified from hearing cases”. Lakehead University has a significant and sizable presence in Justice Smith’s region. To be unable, in future, to sit on any case involving it is not a trivial restriction on his perceived impartiality or his work as a judge. This is particularly a concern in the Northwest region because of its relatively small number of judges. Had Justice Smith been approached to serve in a similar position with another local major economic enterprise, such as the Thunder Bay Regional Health Sciences Centre, it could not be considered acceptable that he would accept the position on the basis that he would thereafter recuse himself from hearing any dispute involving it.
Third, while it is generally true that any judicial association with an organization will bolster its reputation, status and public confidence, that does not mean the Review Panel was incorrect in expressing concern about judges so doing. Judges should be wary of using the prestige of their office to benefit extra-judicial organizations, even universities. The university approached Justice Smith in part precisely because he is a judge. That should be cause for concern.
The one-sided nature of the Federal Court’s decision is evident elsewhere. On the issue of whether the Minister of Justice approved Justice Smith’s leave of absence to take the position, the Federal Court states that the “position that there was no Ministerial approval on these facts is absurd”. Absurd? When asked for approval, the Minister responded “I have no concerns”. The Federal Court contends that if “the Minister was not approving, then it was simple enough for her to say so. She did not”. But this argument proves nothing. If she was approving, why not say so explicitly rather than adopt the more guarded language of “I have no concerns”. She could have said “I approve” and she did not. To characterize the CJC’s position as absurd is injudicious.
While the Federal Court’s rejection of the Review Panel’s analysis of the Judges Act is commendable, it is far less clear that it was correct to overturn its decision that Justice Smith breached his ethical obligations, especially given that the Review Panel is entitled to a degree of deference in reaching its conclusions. Going forward it would be cause for regret if the Federal Court’s decision was treated as having endorsed or otherwise approved of Justice Smith’s decision and was relied on by other judges who engage in similar conduct.