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Lawyers for former Lakehead University interim law dean Justice Patrick Smith have filed an application to quash a conduct review over Smith’s decision to take on the role. (Lakehead University) The former interim dean of the Bora Laskin Faculty of Law at Lakehead University could potentially be removed from the bench for taking on the position, according to an application filed with the Federal Court of Canada this week.

Justice Patrick Smith was named interim dean in May after Angelique EagleWoman — who headed the fledgling law school since 2016 — left the position, citing systemic racism and discrimination at the university.

Lakehead said Smith was recalled to the bench in September , about two months sooner than expected, however court documents say he "moved to resign" to minimize possible disruption to the school in the face of an ongoing conduct review. The Superior Court of Justice said at the time that Smith returned to the bench for "personal and professional reasons, not related to the university."

Smith’s decision to take on the role in the first place was not well-received by the Canadian Judicial Council, according to court documents. The council oversees the conduct of judges in Canada’s superior courts.

The council’s chief administrator, Norman Sabourin, referred Smith taking on the role to the council’s conduct committee. The court filing is asking a judge to quash the matter, specifically a decision by the committee to bring together a panel that would decide whether Smith’s case should proceed to a public inquiry. That inquiry, if held, could recommend Smith "be removed from judicial office."

Any final decision would have to come from Justice Minister Jody Wilson-Raybould.

Smith is "very surprised and very concerned about this," said Brian Gover, a partner with Stockwoods LLP in Toronto who is representing the Superior Court judge. Lawyer Brian Gover is representing Patrick Smith in his application. (Martine Laberge/Radio-Canada) According to the application, Smith received clearance from his chief justice, Heather Forster Smith to become interim dean at Lakehead; additionally, Wilson-Raybould expressed no concerns.

"What is quite unreasonable about the whole thing is that the Minister of Justice … has already approved the conduct," Gover said. "So we say that when you take a few steps back, this is a patently unreasonable decision that was made."

Sabourin told CBC News that if the review panel doesn’t send the matter to a public inquiry, the judicial council could also pursue other discipline. ‘A judge is always a judge’

The conduct review is over whether Smith should have taken on the role as interim dean — which the application said was an unpaid position — in the face of the judicial council’s guidelines, specifically that judges "should avoid involvement in causes or organizations that are likely to be engaged in litigation."

The vice-chair of the council’s conduct committee, Chief Justice Robert Pidgeon, allowed the matter to proceed to the review panel phase, ruling that EagleWoman’s departure was inherently litigious and was being publicly debated, meaning that Smith taking the position could shake public confidence in the judiciary.

In his decision, obtained by CBC News, Pidgeon also added that Smith didn’t consider "the possible public controversy associated with the reaction from the chiefs of First Nations and without considering the political environment or the potential effect on the prestige of judicial office."

"It confirms that judges have serious ethical obligations and these obligations exist whether you’re discharging your duties as a judge or whether you’re on leave," Sabourin told CBC News. Norman Sabourin, executive director of the Canadian Judicial Council (CBC) "A judge is always a judge and their ethical obligations stay with them."

Smith’s appointment drew a swift […]

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