Judges associations declare support for former interim Lakehead law dean

Justice Patrick Smith is facing a conduct review over his decision to take the job.

Justice Patrick Smith is facing a conduct review over his decision to take the job

The Canadian and Ontario Superior Court Judges Associations are applying to intervene in a court application launched by Justice Patrick Smith. (Lakehead University)

The Canadian and Ontario Superior Court Judges Associations are defending Justice Patrick Smith, as the former interim dean of the Lakehead University law school faces a conduct review over his decision to take on the role. 

The organizations, which represent Superior Court judges, say they will intervene at the Federal Court of Canada to support Smith. In a statement, the Canadian judges association said Smith cannot be removed from the bench over his decision to serve as interim dean of the Lakehead University law school.

In a letter sent to Smith's lawyers, federal justice officials and the Canadian Judicial Council, obtained by CBC News, lawyers retained by the Ontario judges association said the organization will "assist the court with the factual and legal issues before it," which the association is "uniquely positioned to address."

The Canadian Judicial Council has referred a question regarding Smith's conduct in taking the interim dean job to a conduct review panel.  

Smith has applied to the federal court to quash the review.  

The vice-chair of the council's conduct committee, Chief Justice Robert Pidgeon, allowed the matter to proceed to a review, ruling that the departure of former law dean Angelique EagleWoman amid allegations of systemic racism was inherently litigious and was being publicly debated, meaning that Smith's taking the position could shake public confidence in the judiciary.  

Pidgeon also said in his decision that Smith failed to consider "the possible public controversy" involved in accepting the post.

Smith acted in a 'careful and thoughtful manner'

But Smith's conduct was not so egregious as to fail the Marshal test — the test used to decide whether to remove a judge from office — according to the president of the Canadian Superior Court Judges Association.  
 
"The CSCJA is of the view that the conduct of Justice Smith, who acted as interim dean, given the careful and thoughtful manner in which he sought and obtained approval before accepting the mandate, could not satisfy the Marshal test and cause his dismissal," Julie Dutil said in the statement. 

The test requires that a judge's conduct be "so manifestly and profoundly destructive of the concept of the impartiality, integrity and independence of the judicial role, that public confidence would be sufficiently undermined to render the judge incapable of executing the judicial office." 

Smith sought and obtained permission from Chief Justice Heather Smith before accepting the role at Lakehead.  The chief justice, in turn, sought advice from a senior counsel who recommended certain conditions be placed on the judge's role to insulate him from controversy. Smith complied with those conditions, according to the judges association's statement. 

The association does not normally take a position on the merits of individual complaints about the conduct of judges, it added.  However, it made an exception in the case of Smith.

The new board chair of Lakehead University also issued a statement in support of Smith. Ross Murray said that it's "saddening and tragic" that Smith is facing a conduct review due to his decision to serve in the interim role.

"I wish Justice Smith and his family the best and support him completely."

Smith took over as the dean of the Bora Laskin Faculty of Law in May, shortly after EagleWoman's departure. 

Indigenous leaders had called for EagleWoman's successor to be Indigenous and criticized Smith's appointment over his role in jailing six leaders of Kitchenuhmaykoosib Inninuwug during a 2008 dispute with the mining company Platinex. 

With files from Matt Prokopchuk