Sen. Murray Sinclair outside his Senate office on Parliament Hill, in Ottawa, Sept. 20, 2016. Canada’s chief justices are putting the reputation of their disciplinary body for judges at risk by threatening a judge with dismissal for accepting a temporary job as a law-school dean, says the former head of the country’s Truth and Reconciliation Commission.
Senator Murray Sinclair says in a letter addressed to Supreme Court Chief Justice Richard Wagner, chair of the Canadian Judicial Council, that it was he who advised Ontario Superior Court Justice Patrick Smith to take a leave of absence and become temporary dean at Lakehead University’s Bora Laskin Law School in Thunder Bay last spring. Justice Smith also obtained the permission of his court’s Chief Justice, Heather Smith.
After some Indigenous leaders criticized the appointment of a non-Indigenous person, the judicial council launched a review of whether Justice Smith violated the federal judiciary’s code of conduct by putting himself in a position he should have known would attract controversy, and which could ultimately lead to litigation before the court he represents. The council, which is made up of chief and associate chief justices, could recommend to Parliament that Justice Smith be removed from the bench.
“I am profoundly disappointed that the Council considers it appropriate to review Justice Smith’s conduct and whether it warrants his removal from the bench,” Mr. Sinclair says in his letter, obtained by The Globe and Mail. “In my opinion, he acted according to the highest standards of the judiciary. The Council’s investigation of this matter risks impairing confidence in the Faculty of Law [at Lakehead], the administration of justice and the Council itself, in a very public way.”
The council responded, in a media statement, that the review of Justice Smith will continue, and that judges and the public will “benefit from greater clarity regarding the permissible scope of activities for judges outside their normal judicial duties."
Mr. Sinclair, who is Indigenous and a former judge, led the Truth and Reconciliation Commission from 2009 to 2015; it was set up to bring before Canadians the century-long history of residential schools, at which Indigenous children were forcibly assimilated and often abused. He also was co-chair of Manitoba’s Aboriginal Justice Inquiry, created in 1988, which investigated how the justice system treats Indigenous people.
His letter does not directly mention criticisms that the job of temporary dean should have gone to an Indigenous person. But Mr. Sinclair says Justice Smith was the right person for the job. The two men co-authored a “bench book” explaining Indigenous law to judges. They also co-chaired a three-day seminar training judges in Indigenous law for the National Judicial Institute.
The Bora Laskin Law School was in a “precarious situation,” Mr. Sinclair said, after its dean, Angelique EagleWoman, resigned last spring, saying the school was guilty of systemic racism. “I felt that the school needed as its leader someone with Justice Smith’s background, understanding of Indigenous legal issues and commitment to reconciliation.” And he said Justice Smith, who is supernumerary (semi-retired) and has been a judge for 17 years, proved to be an “excellent leader.”
Separately, a group of more than 30 Thunder Bay lawyers wrote letters to The Globe and a local newspaper, The Chronicle Journal, expressing their support for Justice Smith.
“It was universally felt by lawyers in Thunder Bay that what happened was outrageous,” Neil McCartney, one of the lawyers who signed the letter, said in a telephone interview. “It was the exact opposite of the treatment he should have received.”
Justice Smith resigned three months into his six-month appointment as dean because of the review, and since last month has been hearing […]
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