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Backlash erupts over misconduct finding for judge who took on law school post

Judge invited to take on a six-month appointment as academic dean of the Bora Laskin Faculty of Law at Lakehead University
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A growing backlash has erupted over a finding that a respected judge engaged in misconduct by accepting a temporary position as dean of a northern Ontario university's Indigenous law school.

A growing backlash has erupted over a finding that a respected judge engaged in misconduct by accepting a temporary position as dean of a Northern Ontario university's Indigenous law school.

In a letter to the Canadian Judicial Council on Wednesday, Sen. Murray Sinclair said he was "deeply troubled" by the legal body's ongoing review of Justice Patrick Smith that could see him fired. Separately, 36 lawyers in Thunder Bay — where the university is located — have criticized what they see as the persecution of the judge.

In his letter, Sinclair — a former Appeal Court justice himself — writes he is "profoundly disappointed" by the review and calls for an immediate halt to the probe into Smith.

"In my opinion, he acted according to the highest standards of the judiciary," Sinclair says in the note to Chief Justice Richard Wagner, chairman of the council. "I urge the council to reflect carefully on this matter, on its own role and mandate, and the very real damage that will be caused if its review of Justice Smith is not brought to an end."

The lawyers in Thunder Bay also object to the judicial council's actions against Smith, a justice with the Ontario Superior Court of Justice. In a letter sent to a local newspaper, they describe the council's contention that Smith might deserve to be fired as "nothing short of outrageous."

One of the signatories, Neil McCartney, said Smith was a stalwart of the city's legal community both as a lawyer and later a judge.

"We aren't going to stand by and see him get railroaded," McCartney said. "He deserves nothing but credit."

Lakehead University invited the judge in April to take on a six-month appointment as academic dean of the Bora Laskin Faculty of Law after the previous dean, Angelique Eagle Woman, alleged systemic racism at the school and resigned. The interim appointment, which drew no objections from the federal government, was intended to fill the role only until Eagle Woman's permanent replacement could be found.

The province's chief justice had no issues and Smith took up the post on June 1, but resigned three months later after the council — without having received any complaints — began its investigation.

Quebec Associate Chief Justice Robert Pidgeon, vice-chairman of the council's judicial conduct committee, found fault with Smith and recommended further review.

"Justice Patrick Smith engaged in misconduct by accepting a position as interim dean without considering the possible public controversy associated with the reaction from the chiefs of the First Nations and without considering the political environment or the potential effect on the prestige of judicial office,'' Pidgeon said in his decision in August.

Sinclair, one of Canada's leading First Nations voices, said he had encouraged Smith to accept the position in light of his "deep experience" in Indigenous law.

In response to questions about the backlash, the council's executive director would only say the review was part of a screening process "designed to foster public confidence in the judiciary" and would be fair to the judge.

"In this matter, a panel of four judges and one layperson will examine all the circumstances of the case and make a ruling about the judge's conduct," Norman Sabourin, who initiated the complaint process, told The Canadian Press on Wednesday. "Until that review is completed, it would be unwise to draw conclusions about the merits of the matter."

Brian Gover, who is representing Smith in a Federal Court attempt at getting the review stopped, called it telling that Sinclair believes the council's actions risk undermining confidence in the administration of justice and in the council, which is responsible for investigating complaints against federally appointed judges.

"To say that the legal community has been shocked by the CJC turning on a valued and highly respected judge would be an understatement," Gover said. "The fact that the council went after him without a formal complaint having been filed is another strange irregularity. The CJC is facing a fierce counter-attack such as they have never seen before."

The review panel, constituted in late August, cannot be "unconstituted" and its decision will be made public, said Johanna Laporte, a spokeswoman for the council.

"The panel will surely explain why and how the judge's actions were compatible or incompatible with his professional obligations," Laporte said. "Judges and the public alike will benefit from greater clarity regarding the permissible scope of activities for judges outside their normal judicial duties."

Colin Perkel, The Canadian Press




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