Smith v. Canada (Attorney General)

Smith v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2020-05-21
Neutral citation
2020 FC 629
File numbers
T-1713-18, T-2055-18
Notes
A correction has been made on July 16, 2020. A correction was made on August 20, 2021.
Reported Decision
Decision Content
Date: 20200521
Docket: T-1713-18
(T-2055-18)
Citation: 2020 FC 629
Ottawa, Ontario, May 21, 2020
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
THE HONOURABLE JUSTICE PATRICK SMITH
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
and
THE CANADIAN JUDICIAL COUNCIL,
THE CANADIAN SUPERIOR COURT JUDGES`ASSOCIATION AND
THE ONTARIO SUPERIOR COURT JUDGES`ASSOCIATION
Interveners
JUDGMENT AND REASONS
“The fact that Judge Patrick Smith is in danger of removal is a sobering illustration of the ‘no good deed goes unpunished’ saying.”
Christie Blatchford
I. INTRODUCTION
[1] The Honourable Justice Patrick Smith [Justice Smith] is a judge of the Superior Court of Justice of Ontario.
[2] He challenges two decisions of the Canadian Judicial Council [CJC]. The first is the August 28, 2018, decision of Québec Superior Court Associate Chief Justice Robert Pidgeon, in his capacity as Vice-Chairperson of the Judicial Conduct Committee [Pidgeon ACJ], to constitute a Judicial Conduct Review Panel [Review Panel] (Court File T-1713-18). Second, Justice Smith challenges the November 5, 2018, decision of the Review Panel (Court File T-2055-18).
[3] The Review Panel concluded that Justice Smith, in accepting the appointment of Interim Dean (Academic) at Bora Laskin Faculty of Law at Lakehead University [the Law School], contravened section 55 of the Judges Act, RSC 1985, c J-1. It further found that Justice Smith failed in his “ethical obligations 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.” It recommended that an Inquiry Committee not be constituted, and remitted the matter back to Pidgeon ACJ for a decision on the most appropriate way to resolve the matter.
[4] Pidgeon ACJ, in a letter to Justice Smith dated November 6, 2018 [Letter of Concern], writes that he “fully support[s] the Panel’s reasons and conclusions” and describes the decision to accept the role of Interim Dean as “ill-advised.” As Justice Smith had resigned as Interim Dean (Academic) of the Law School prior to the decision of the Review Panel and had resumed his judicial duties, it was concluded that no further measures were necessary.
[5] In their memoranda and oral submissions, Justice Smith and the CJC focused on the decision of the Review Panel and the subsequent Letter of Concern as they overtook the decision to refer the conduct of Justice Smith to the Review Panel. Likewise, I shall focus on the decision of the Review Panel and the Letter of Concern, except when relevant to the submission of Justice Smith that the CJC proceedings were procedurally unfair and an abuse of process.
[6] The Review Panel decision and this application bring into issue the interpretation of several sections of the Judges Act, which are reproduced in Appendix A.
[7] For the reasons that follow, I conclude that these applications must be allowed. The decision of the Review Panel is not reasonable, and the CJC procedure was applied unfairly to Justice Smith and was an abuse of process. Justice Smith is entitled to a meaningful remedy.
II. BACKGROUND
I. Procedural History
[8] Both applications for judicial review were under case management. By her July 4, 2019 Order, the Case Management Judge consolidated these applications. Pursuant to Rule 109 of the Federal Courts Rules, SOR/98-106, leave to intervene was granted to the Canadian Superior Court Judges’ Association and the Ontario Superior Court Judges’ Association.
[9] The Attorney General of Canada was named as the Respondent pursuant to Rule 303(2). The Attorney General agrees with Justice Smith that the decision of the Review Panel is unreasonable, and that its interpretation of sections 54 to 56.1 of the Judges Act, as adopted by Pidgeon ACJ in the Letter of Concern, is unreasonable.
[10] The Case Management Judge granted the CJC leave to intervene in these applications, restricted to the issue of its jurisdiction. That issue was resolved by the decisions in Girouard v Canada (Attorney General), 2018 FC 865; appeal dismissed Canadian Judicial Council v Girouard, 2019 FCA 148; leave to appeal to the SCC refused December 12, 2019.
[11] In her October 17, 2019 Order, the Case Management Judge expanded the scope of the CJC’s intervention permitting it to defend its decision on the merits, within the parameters set out by the Supreme Court of Canada in Ontario (Energy Board) v Ontario Power Generation Inc, 2015 SCC 44.
II. Facts
[12] On April 16, 2018, the Interim President and Vice Chancellor, Lakehead University, wrote to Justice Smith asking him to accept an appointment to the position of Interim Dean of the Law School. The Law School has existed only since 2013. Its mandate is “Aboriginal and Indigenous Law, Natural Resources and Environmental Law, and small firm and Sole Practice.” The second permanent dean of the Law School, Angelique EagleWoman, resigned earlier in 2018, alleging institutional racism. In her letter to Justice Smith, the Interim President notes the importance that it “maintain the confidence and support of the Law Society of Ontario, the Federation of Law Societies of Canada, and of our local bar and extended communities.” The Interim President explains why he is being asked to take on this interim position:
We make this urgent request based on your knowledge, skills, and experience as a Judge of the Superior Court of Ontario. In addition, your long standing connections and the respect you garner in the local, provincial and national legal communities, combined with your significant work with Indigenous communities and your important publications focused on Aboriginal Law in Canada, are critical to the ongoing evolution and success of the Faculty of Law.
[13] Justice Smith sits in the Northwest Region and before becoming a judge in 2001, practised law in Thunder Bay for 25 years. He has significant expertise in Aboriginal and Indigenous law. In November 2009, he was appointed to the Specific Claims Tribunal. Justice Smith worked with former judge and current Senator Murray Sinclair, Chair of the Truth and Reconciliation Commission, on various judicial education initiatives, including developing and co-chairing a three-day intensive course, sponsored by the National Judicial Institute on Aboriginal Law for judges from across Canada, and creating and updating a Judicial Bench Book on Aboriginal Law. He is often invited by legal organizations to speak on Aboriginal and Indigenous law, and is called upon regularly by judges across Canada to assist with the mediation of land claims and other litigation between First Nations and various levels of government.
[14] Justice Smith informed the Honourable Heather J. Forster Smith, Chief Justice of the Superior Court of Justice [the Chief Justice] of the request from the Law School. In his letter, Justice Smith says, “the affairs at the school are in a crisis.” This characterization of the situation at the Law School is not questioned. He asked for the approval of his Chief Justice and the Minister of Justice to accept this short-term appointment.
[15] The Chief Justice wrote to Minister of Justice, Jody Wilson-Raybould, expressing her support for Justice Smith to accept this role. She notes that this request “would take him outside of his judicial duties in a role that is unprecedented for a judge of our Court.” She also notes that Justice Smith is a supernumerary judge “so the impact may be less than it would in other circumstances, particularly until the fall.” As a supernumerary judge, Justice Smith performs judicial duties for only six months each year. She indicates that this is an exceptional situation and “an opportunity for our Court to respond positively to a number of Truth and Reconciliation Commission recommendations.”
[16] The Chief Justice proposes to grant Justice Smith a leave of up to six months, from June 1, 2018 into November 2018, under the authority given to her in paragraph 54(1)(a) of the Judges Act. She notes that anything beyond that would require an Order in Council.
[17] The Chief Justice writes that Justice Smith appreciates that he can only accept the role “within certain clear parameters” including that his role be confined to “academic leadership.” He would delegate administrative authority over recruitment, financial decisions, and academic appeals to others within the school. Lastly, she observes, “given the restrictions of s. 55 of the Judges Act (which prohibits extra-judicial employment, occupation or business) he could not accept any remuneration from the university.”
[18] On April 27, 2018, the Minister replies:
As Chief Justice, you have authority to grant Justice Smith a “special leave” under the Judges Act, for a period up to six months. …
I have no concerns about your granting Justice Smith a “special leave” from June 2018 to November 2018, as outlined in your letter. In the event that more than six months is required, I will consider any requests for additional leave at the appropriate time. [emphasis added]
[19] On April 30, 2018, the Chief Justice granted Justice Smith special leave pursuant to paragraph 54(1)(a) of the Judges Act from June 1, 2018, to accept the assignment of Interim Dean at the Law School, subject to the parameters set out in her letter to the Minister of Justice.
[20] On May 9, 2018, the Executive Director of the CJC, Norman Sabourin, wrote to Justice Smith, with a copy to his Chief Justice. He observed that pursuant to section 4.2 of the Canadian Judicial Council Procedures for the Review of Complaints or Allegations About Federally Appointed Judges [the Review Procedures], in addition to receiving and reviewing complaints, he may “review any other matter involving the conduct of a superior court judge that comes to the attention of the Executive Director and appears to warrant consideration.” He further noted that under section 4.3 of the Review Procedures, if he determines that the matter warrants consideration, he “must” refer it to the Judicial Conduct Committee.
[21] With that background, Mr. Sabourin writes in his letter to Justice Smith that media reports indicate that he has accepted to serve as “Dean of Lakehead University (on an interim basis)” and he attaches a CBC web report posted May 3, 2018, entitled “Justice Patrick Smith named interim dean of Lakehead law school.” It reports on the departure of former Dean Angelique EagleWoman who on stepping down said, “Systemic issues within the university and challenges to implementing the Bora Laskin Faculty of Law’s Aboriginal and Indigenous law mandate have made my continued involvement in the law school untenable.” The news report concludes with the reaction of some Indigenous leaders to the situation at the Law School:
Since then indigenous leaders representing dozens of First Nations communities across northwestern Ontario called for “immediate change” at Lakehead University. They made several recommendations, including that Lakehead commit to appointing an Indigenous person as EagleWoman’s successor, that an independent review examine “all issues and allegations” raised by her and that appropriate measures are subsequently taken.
[22] Mr. Sabourin says, “in light of sections 54 and 55 of the Judges Act, and given the general duties and ethical obligations of judges,” acceptance of the Interim Dean role “brings me to the view that the situation may warrant consideration by Council.” Prior to reaching any decision, Mr. Sabourin invites Justice Smith’s views.
[23] The Chief Justice quickly responds by letter of May 11, 2018, noting that Justice Smith is unable to respond as he is out of the country. She assures Mr. Sabourin that she considered the request “very carefully taking into account the CJC’s ethical principles and the Judges Act.” She informs him that she obtained assurances that the appointment would attract no remuneration, that Justice Smith’s duties would be restricted to providing only academic leadership, and that he would be insulated from concerns about future litigation. Further, she informs Mr. Sabourin that she had sought and obtained approval from the Minister of Justice. She closes her letter with the following:
I trust that the above clarifies how the matter unfolded and that it was thoroughly considered and approved both by me and the Minister of Justice. As such, I trust that you will agree that any further review of this matter is unwarranted.
I anticipate that this explanation will satisfy all concerns you may have, but if not, please advise me and we may be able to suggest possible solutions.
[24] This response apparently did not satisfy Mr. Sabourin. He did not accept the invitation of the Chief Justice to contact her; he referred the matter to Pidgeon ACJ. On his behalf, Mr. Sabourin requests “more information about the precise scope and nature of the duties” Justice Smith will undertake at the Law School and asks for his comments on the following:
* who first contacted you in respect of the proposed appointment as Dean;
* whether you have been granted leave from your judicial duties and, if so, by whom and on what basis;
* whether, in your view, section 55 of the Judges Act is a bar to a judge engaging in professional activities other than judicial duties, whether remunerated or not;
* whether you intend to engage in any judicial activities while acting as Dean;
* whether there is any possibility of litigation in relation to Lakehead University;
* whether the public confidence in the judiciary might be undermined by your engaging in the activities you propose at Lakehead University.
[25] Justice Smith responds directly to Pidgeon ACJ on May 24, 2018. He points out that the position he was invited to fulfill is not Dean of the Law School, as Mr. Sabourin’s letter states, but Interim Dean. He reiterates that he has been granted a leave of absence from his judicial duties by his Chief Justice who has consulted with the Minister of Justice who has “no concerns” with that.
[26] Justice Smith responds that he does not view section 55 of the Judges Act as a bar to his acceptance of the position at the Law School:
While I do not believe that this provision creates a blanket ban on engaging in any “professional activities other than judicial duties”, I am hesitant to opine in the abstract on the circumstances in which section 55 prohibits such activities. I am pleased, however, to have the opportunity to provide submissions on whether this provision prohibits my proposed activities as Interim Dean.
The role of “Interim Dean”, as defined above, does not in my respectful view qualify as an “occupation or business” in which the Legislature intended to prohibit judges from engaging. The Legislature intended to prohibit judges from moonlighting in other roles – particularly remunerative ones – that could undermine their ability to devote themselves fully to their judicial duties.
Moreover, the role that I intend to play at the Bora Laskin Faculty of Law is not unlike a study leave granted to a judge to reflect, research, or teach at a Canadian Law School, as authorized by the Canadian Judicial Council and the Minister of Justice.
Further, section 55 must be read in conjunction with section 54, which expressly contemplates that a judge may “be granted a leave of absence from his or her judicial duties.” It is necessarily inferred that during a period of leave granted pursuant to section 54, a judge is relieved of the obligation in section 55 to “devote himself or herself exclusively to those judicial duties.”
Viewed in this context, as well as in the circumstances in which I would be fulfilling the temporary role of Interim Dean (i.e., during a period of leave pursuant to section 54), I respectfully submit that section 55 does not prohibit taking on this role, as defined above.
Nevertheless, if this remains a concern for you, I would be open to suggestions on how this role might be more tightly tailored or differently stylized (e.g., “Interim Academic Dean”, “Interim Dean/Judge-in-Residence”, “Academic Lead” or “Special Academic Advisor”) to ensure I do not run afoul of section 55.
[27] Justice Smith says that the restrictions placed on him to providing academic leadership “are intended, in part, to insulate me from concerns about future litigation.” Upon his return to judicial duties, he will recuse himself from any matter in which Lakehead University is a party.
[28] Additionally, he expresses his view that public confidence in the judiciary would be enhanced and not undermined by him engaging in the proposed activities at the Law School:
I share Chief Justice Smith’s concerns about the current risk to Lakehead University’s Faculty of Law, which includes a real possibility that the Faculty may collapse. I have only accepted to take on the role of Interim Dean in order to try to help the Faculty navigate a period of real crisis. I do not believe the public confidence in the judiciary could be undermined by me providing assistance to the Faculty as proposed. To the contrary; I believe the public confidence in the judiciary would be enhanced by knowing that a judge of the Superior Court is willing and enthusiastic to answer a call to service made by Lakehead University to assist its Faculty of Law through an existential crisis, while also ensuring full compliance with his obligations as a judge. That confidence would only be further enhanced by knowing that the Chief Justice of the Ontario Superior Court of Justice, the federal Minister of Justice, and the Canadian Judicial Council are united in their support of this effort to ensure that a Law Faculty with such important mandates continues to survive and thrive, and to address one of the Truth and Reconciliation Commission’s Calls to Action in furthering the project of reconciliation. This will contribute to the public perception of the judiciary and the Canadian Judicial Council as relevant and responsive to a crisis in the community. [emphasis in original]
[29] The Chief Justice also wrote to Pidgeon ACJ on May 28, 2018, repeating her support of Justice Smith accepting the position. Further, she provided a legal opinion from former Ontario Deputy Attorney General Murray Segal who, after outlining the legislative history of and Parliamentary intention regarding sections 54 and 55 of the Judges Act concludes that the appointment did not contravene section 55 of the Judges Act:
In sum, our view is that ss. 54 and 55 of the Judges Act did not prevent Chief Justice H. Smith from granting special leave to Justice P. Smith to act as Acting Dean in a limited capacity, nor do they prevent Justice P. Smith from taking such leave.
Granting special leave was within Chief Justice H. Smith’s power and did not contravene s. 55 of the Judges Act. When leave is granted under s. 54, it must be for a purpose that is consistent with the office of the judge and judicial ethics, and it must be particularly sensitive to the judge’s eventual return to the bench. These considerations were apparent in Chief Justice H. Smith’s decision to grant leave on carefully designed conditions. Given the plain meaning and history of ss. 54 and 55, the history of judges pursuing roles in academia, and the principles of judicial ethics, granting special leave for Justice P. Smith to take on a closely circumscribed role as Acting Dean did not contravene s. 55. [emphasis added]
[30] In his opinion, Mr. Segal notes, as had Justice Smith, that academic leaves of absence established by the CJC were not viewed as offending the Judges Act or a judge’s ethical principles. Further, he points out that there are precedents for a Superior Court justice acting as Dean of a law school. Former Chief Justice Gerald Fauteux was a justice of the Superior Court of Québec while serving as Dean of McGill Law School (1949-50) and a justice of the Supreme Court of Canada while serving as Dean of Ottawa Law School (1953-1962). Mr. Segal also points out that while a Superior Court judge, Justice Bora Laskin joined the Board of Governors of York University (1967-1970) and was Chair of the Ontario Institute for Studies in Education.
[31] Mr. Segal recommends some additional conditions on Justice Smith’s role at the Law School, including that a written agreement be entered into setting out the limitations of his appointment. Justice Smith and Lakehead University signed such a written agreement on May 31, 2018, and it was sent to Pidgeon ACJ. His position title was modified to Interim Dean (Academic) to reflect the limitations on his role.
[32] On July 12, 2018, Pidgeon ACJ sought further information from Justice Smith on the additional limitations on his role (as recommended in Mr. Segal’s opinion), his duties, the written agreement, and the status of the search for a permanent dean. Justice Smith replied on July 17, 2018, stating that the agreement embodied the additional recommended limitations, except the condition that he approach his Chief Justice if there was a change in circumstances or the appearance of controversy. In its place, he confirmed that he had “undertaken to Chief Justice Smith to approach her or her office immediately should circumstances change, or any issues arise which may raise new ethical implications, possibly lead to public controversy, or generally on which I require direction.”
[33] Mr. Sabourin notified Justice Smith by telephone on August 20, 2018, that Pigeon ACJ decided to constitute a Review Panel in respect of the appointment, and that a press release would be issued by the CJC.
[34] Justice Smith replied on August 23, 2018, providing an update on his duties and the results he had achieved, and asking the CJC not to issue a press release because of the negative effect this would have on the morale and reputation of the Law School. The CJC later issued a Press Release on October 3, 2018, stating, “Specifically, the decision of the Honourable Patrick Smith to become the Interim Dean of the Bora Laskin Law School at Lakehead University raises some questions about whether such duties are compatible with judicial office.”
[35] Justice Smith received a letter from the CJC dated August 28, 2018, attaching the reasons for the decision to appoint a Review Panel “in respect of your appointment as Dean [sic] of the Faculty of Law at Lakehead University.” Justice Smith was invited “to provide any written comments you may wish to make to the Panel, including on whether or not an Inquiry Committee should be constituted.”
[36] The reasons provided by Pidgeon ACJ for the referral include his interpretation of the relevant provisions of the Judges Act. However, and contrary to the explanation in the press release, his decision to refer rests on his view that Justice Smith accepted the role “without considering the possible public controversy associated with the reaction from First Nations chiefs and without considering the political environment or the potential effect on the prestige of judicial office.”
[37] The reasons for referral, in relevant part, are as follows:
I begin my review by noting that this matter raises a question of interpretation with regard to sections 54, 55 and 56 of the Judges Act. Indeed, Justice Smith and his Chief Justice obtained a legal opinion in this respect (attached), prepared by Mr. Murray Segal, former Deputy Attorney General of Ontario. Mr. Segal provides a broad interpretation of sections 55 and 56 of the Judges Act:
The history of s. 55 and its predecessors does not suggest that it was targeted at preventing judges from engaging in unpaid academic pursuits. The history of s. 55 suggests it was aimed at preventing judges from: (1) engaging in paid employment while acting as judges, and thereby neglecting their judicial duties; (2) being involved in commercial enterprises; and (3) being involved in matter of public controversy. [emphasis added by Pidgeon ACJ]
…
In my view, a somewhat different interpretation must be given to the provision in question. In my respectful opinion, the question for Council in this matter is whether Justice Patrick Smith’s conduct in accepting an appointment as Interim Dean of the Law Faculty potentially contravenes the Judges Act or his ethical obligations as a member of the judiciary.
…
Section 55 of the Judges Act requires judges to devote themselves exclusively to their judicial duties, and to abstain from businesses and occupations falling outside the judicial sphere. This is confirmed by the legislative history of sections 55, 56 and 56.1 of the Judges Act. Being granted a leave of absence under section 54 of the Judges Act does not permit a judge to take on a business or occupation outside of the judicial sphere (except for acting as a commissioner, arbitrator, adjudicator, referee conciliator or mediator on any commission or on any inquiry, provided certain statutory conditions under section 56 of the Judges Act are met). The meaning of “occupation” should be broadly interpreted to capture all non-judicial activities that interfere with the judicial role, whether due to their onerous or time-consuming nature or given their incompatibility with judicial office.
In addition, it is worth noting that in a decision rendered on 22 June 2015 (attached), regarding a complaint made against an Ontario Court of Appeal judge who had accepted a position as chancellor at Brescia University College, the Chairperson of the Judicial Conduct Committee, the Honourable Michael MacDonald, concluded:
Chief Justice MacDonald came to the opinion that Justice Gillese’s appointment to the Chancellor’s post did not place her in a position that is incompatible with her judicial functions. Chief Justice MacDonald took into consideration the strict limitations that were agreed upon by officials from Brescia and by Justice Gillese, as well as her pro-active course of action which included discussions with her Chief Justice to avoid any potential conflict and limit any associated risks. In these specific circumstances, Chief Justice MacDonald agrees with Chief Justice Strathy that Justice Gillese’s acceptance of this ceremonial post is not contrary to judicial ethics and may, in fact, be of benefit to the judiciary. [emphasis added by Pidgeon ACJ]
Note that in that case, the Chief Justice of the Ontario Court of Appeal, the Honourable George Strathy, in response to a request from Chief Justice MacDonald regarding the interpretation of sections 55 and 56 of the Judges Act, suggested the following:
The words “occupation and business” cannot be interpreted to apply to any activity. Otherwise they would prohibit such things as hobbies or personal activities. The words “occupation or business” certainly prohibit judges from engaging in any remunerative employment or business, but they cannot be interpreted to prohibit any unremunerated activity. [emphasis added]
…
After considering the interpretation of the relevant legislative provisions, only one question remains: did Justice Smith err by incorrectly assessing the situation, that is, by erroneously weighing the inherent risks of the situation? [emphasis added]
My answer is that he did.
…
In summary, I am of the view that Justice Patrick Smith engaged in misconduct by accepting a position as Interim Dean without considering the possible public controversy associated with the reaction from chiefs of First Nations and without considering the political environment or the potential effect on the prestige of judicial office.
I had to answer this question bearing in mind that (1) an interim or permanent dean is the public face of a faculty and (2) Justice Smith accepted the appointment while the media attention was underway. In addition, and with respect, it is my opinion that the situation is exacerbated by his erroneous assessment of the risks that will continue to exist at an institution where litigation would surely come before the Court of which he is a member.
I therefore conclude that the matter might be serious enough to warrant the removal of Justice Patrick Smith from office. I accordingly refer the matter to a Review Panel, in keeping with subsection 2(1) of the Canadian Judicial Council Inquiries and Investigations By-Laws, 2015, to decide whether an Inquiry Committee should be constituted in accordance with subsection 63(3) of the Judges Act.
[38] Subsection 2(1) of the Canadian Judicial Council Inquiries and Investigations By-laws, 2015, SOR/2015-203 [the By-laws] provides:
The Chairperson or Vice-Chairperson of the Judicial Conduct Committee, established by the Council in order to consider complaints or allegations made in respect of a judge of a superior court may, if they determine that a complaint or allegation on its face might be serious enough to warrant the removal of the judge, establish a Judicial Conduct Review Panel to decide whether an Inquiry Committee should be constituted in accordance with subsection 63(3) of the Act.
[39] In concluding that the conduct of Justice Smith was contrary to judicial ethics, Pidgeon ACJ relies on passages from the CJC’s Ethical Principles for Judges [the Ethical Principles], and particularly the following statement under the heading “Impartiality:” “Judges are free to participate in civic, charitable and religious activities subject to the following consideration: … (c) Judges should avoid involvement in causes or organizations that are likely to be engaged in litigation.” He also notes section C.9 of the Commentary:
Several Canadian judges have served as chancellors of universities or dioceses. Others have served on the boards of schools, hospitals or charitable foundations. Such participation may now present risks that did not appear evident in the past. These risks must be carefully weighed. Universities, churches and charitable and service organizations are now involved in litigation and matters of public controversy in ways that were virtually unheard of even in the very recent past. A judge serving as a chancellor of a university or a diocese or as a board member may be placed in an awkward position if the organization should become involved in litigation or matters of public controversy.
[40] The Court notes that Pidgeon ACJ does not reference the statement in the Ethical Principles that it is provided for guidance and “does not preclude reasonable disagreements about their application or imply that departures from them warrant disapproval.”
[41] I also note that in the referral decision Pidgeon ACJ writes that the conditions imposed on Justice Smith in the role of Interim Dean (Academic) “for all intents and purposes would limit his role to a ceremonial one.” This suggests that his role was no different from that of Justice Gillese as chancellor of a university.
[42] Justice Smith outlines the duties he performed in this role in a letter to Mr. Sabourin. He says that he delivered an address to graduating students of the Law School; he recommended the installation of a video conference facility to connect academics, elders, jurists, and others with the student body; through his efforts Senator Murray Sinclair delivered a keynote address during a special lecture at the Law School; and his efforts resulted in the engagement with the Aboriginal Advisory Committee regarding the content of Indigenous courses, and the provision of support for and connection with Indigenous students. While these arguably take his role outside a purely ceremonial one, as is noted by Pidgeon ACJ elsewhere in his reasons, the content of his role is not examined by the Review Panel in its decision. In my view, his duties as reflected in the record are consistent with the description given by his Chief Justice as one of academic leadership.
[43] Following notice that the matter had been referred to the Review Panel, Justice Smith’s counsel wrote to Mr. Sabourin on September 4, 2018, stating that he had resigned his position at the Law School effective September 14, 2018, and would return to his judicial duties with the Superior Court of Justice on the following business day.
[44] On September 14, 2018, counsel for Justice Smith wrote to the CJC requesting that Pidgeon ACJ reconsider his decision to refer the matter to the Review Panel. Mr. Sabourin replied on September 19, 2018, that Pidgeon ACJ believes he is unable to reconsider his decision and that his function in the matter has concluded, unless and until the Review Panel returns it to him after a conclusion that no Inquiry Committee should be constituted.
[45] Justice Smith provides written submissions to the Review Panel on September 27, 2018, and his Chief Justice provided her comments on October 10, 2018.
[46] On September 24, 2018, Justice Smith commenced his application for judicial review challenging the decision to refer the matter to the Review Panel and refusing to reconsider that decision. He also brought a motion seeking an order staying the Review Panel’s consideration of the matter referred to it.
[47] Counsel for Justice Smith together with counsel for the Attorney General on October 1, 2018, wrote to the CJC, asking the Review Panel not to proceed with the review until the stay motion had been decided. The CJC replied that the request had been put before the Chair of the Review Panel. The Panel never responded. The stay motion was adjourned at the request of counsel for Justice Smith and the Attorney General of Canada, and subsequently rescheduled by the Court to a special sitting on November 20, 2018. The CJC was informed of this revised hearing date. Prior to the scheduled motion date, the Review Panel issued its decision, rendering the motion moot.
[48] The Review Panel issued its decision on November 5, 2018. It concluded that section 55 of the Judges Act “requires judges, subject to a limited number of narrow exceptions, to confine themselves to their judicial role” and that a leave of absence granted under section 54 does not remove this prohibition. It further found that, regardless of the interpretation of these sections, Justice Smith breached an ethical obligation to avoid becoming involved in public controversy, and he impermissibly used the prestige of judicial office to bolster the Law School. The Review Panel found that as Justice Smith had no bad behaviour or improper motives, his conduct was not serious enough to warrant removal from the bench and it therefore decided not to constitute an Inquiry Committee.
[49] The matter then returned to Pidgeon ACJ “to make a decision on the most appropriate way to resolve this matter.” He endorsed the decision of the Review Panel and noted that Justice Smith had resigned from the position and returned to his judicial duties. He concluded that no further measures were needed.
[50] On November 6, 2018, the CJC told two reporters that the Review Panel had reached its decision and that it would be released that day without having so informed Justice Smith or his counsel. The CJC published a press release on its web site the same day, with a link to the Panel Decision.
III. ISSUES
[51] These applications focus on three issues:
whether the decision of the Review Panel Decision is reasonable;
whether the CJC proceedings were procedurally unfair or an abuse of process; and
if the applications succeed, what is the appropriate remedy?
IV. ANALYSIS
I. Is the Review Panel Decision Reasonable?
[52] The Review Panel reached two conclusions concerning the conduct of Justice Smith. First, that Justice Smith breached section 55 of the Judges Act. Second, that Justice Smith breached his ethical obligation “to avoid involvement in public debate that may unnecessarily expose him to political attack or be inconsistent with the dignity of judicial office” and he and the Superior Court of Justice, in lending their support to the Law School, put their reputations at risk.
[53] All parties agree, as does the Court, that the standard of review of the Review Panel decision is reasonableness, regardless of whether one is reviewing its interpretation of section 55 of the Judges Act or its finding that Justice Smith breached his ethical obligations.
[54] The Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paragraph 16, teaches that there is “a presumption that reasonableness is the applicable standard whenever a court reviews administrative decisions.” Moreover, it makes it clear at paragraph 115 that “Matters of statutory interpretation are not treated uniquely and, as with other questions of law, may be evaluated on a reasonableness standard.”
[55] As the Supreme Court explains at paragraph 87 of Vavilov, “a court conducting a reasonableness review properly considers both the outcome of the decision and the reasoning process that led to that outcome.”
[56] In Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, which was issued with Vavilov, the majority at paragraph 31, explains that when conducting a reasonableness review, a court should start with the reasons, looking to see if there is a coherent and rational chain of analysis based on the facts and law:
A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).
[57] Other helpful guidance from Vavilov, when conducting a reasonableness review, includes the observation at paragraph 105 that a decision “must be justified in relation to the constellation of law and facts that are relevant to the decision.” We are told at paragraph 106 that these considerations are many and varied:
It is unnecessary to catalogue all of the legal or factual considerations that could constrain an administrative decision maker in a particular case. However, in the sections that follow, we discuss a number of elements that will generally be relevant in evaluating whether a given decision is reasonable, namely the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. These elements are not a checklist for conducting reasonableness review, and they may vary in significance depending on the context. They are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached.
[58] In Vavilov, like the present matter, the decision under review involved the decision-maker’s interpretation of a statutory provision. The Supreme Court at paragraphs 115 to 124 provides extensive guidance to a reviewing court when reviewing such decisions. The main principles therein on which I rely in reviewing the Review Panel’s interpretation of section 55 of the Judges Act, are the following:
1. The proper approach to interpreting a statutory provision, whether done by a court or an admin