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Judge who took on temporary deanship of law school cleared of wrongdoing

TORONTO — A justice who accepted a temporary deanship of an Indigenous-focused law school did nothing wrong but was instead the victim of unfair treatment at the hands of the body that oversees judges, Federal Court ruled on Thursday.

In clearing Ontario Superior Court Justice Patrick Smith, Federal Court Judge Russel Zinn rapped the Canadian Judicial Council for abusing its powers in a case that sparked widespread anger among supporters who saw him as being persecuted.

"The (council) did misuse its disciplinary procedure in a manner that is excessive and unreasonable," Zinn concluded.

Smith's lawyer, Brian Gover, called on the council to apologize for its "overzealous and ill-advised pursuit" of the judge given that the court had "roundly denounced" the body's treatment of his client. He also urged it not to appeal.

"The decision illustrates the importance of access to judicial review for judges whose conduct has been criticized by the CJC and who have been unfairly reprimanded by it," Gover said.

Although it had received no complaints, the council investigated Smith for taking leave from the bench in 2018 to become temporary dean of the Bora Laskin law school at Lakehead University in Thunder Bay, Ont. Smith had cleared his acceptance of the posting with his own chief justice, who in turn had cleared it with the federal justice minister.

Nevertheless, a judicial council review panel concluded Smith had violated Section 55 of the Judges Act, although it found he had no improper motives. Among other things, the act requires judges to devote themselves exclusively to their judicial duties and to avoid involvement in controversy or public debate that could expose them to political attack.

Following the panel's findings, the chairman of the council's conduct committee agreed Smith had behaved unethically and violated the act. However, Quebec Associate Chief Justice Robert Pidgeon called for no further action against him.

Smith, who resigned his university position in light of the proceedings, turned to Federal Court. He argued the council's finding had put his livelihood and reputation at risk and undermined trust in the oversight body.

In his analysis, Zinn found the Judges Act does not prohibit judges from taking on non-judicial roles. Rather, it bars judges from acting in ways that could undermine confidence in them and the justice system. Smith, he noted, had permission to take on the Lakehead appointment, meaning the chief justice and justice minister had found no conflicts.

"The decision of the review panel is not reasonable," Zinn concluded. "It was never the intention of Parliament in enacting section 55, to prohibit judges from all non-judicial activities."

Zinn was scathing in his assessment, finding the disciplinary procedure was "misused from the beginning." He faulted the council's executive director, Norman Sabourin, for even looking into the issue based ostensibly on a straightforward media report that had no criticism of Smith's appointment.

"There is nothing in the record explaining how and on what basis the executive director concluded that his referral to the judicial conduct committee was in the public interest and the due administration of justice," Zinn said.

The council said on Thursday it needed time to review Zinn's decision. However, Sabourin has previously said he stood by his decision to launch the Smith probe. Council was obligated to act whenever judicial misconduct was suspected, he said.

"It's also beneficial that there is clear understanding now of the obligations for judges," Sabourin said.

Zinn ordered the judicial council to post a copy of his judgment and reasons on its web site and to refer to it in all its mentions of the case. As agreed by the parties, he awarded no costs.

Canada's chief justice, Richard Wagner, who is chairman of the council, has previously called for major internal and external reforms.

This report by The Canadian Press was first published on May 21, 2020.

Colin Perkel, The Canadian Press

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