r v. Canada, 2020 FC 629

T-1713-18 T-2055-18 2020 FC 629 The Honourable Justice Patrick Smith ( Applicant ) v. 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 ) Indexed as: Smith v. Canada (Attorney General) Federal Court, Zinn J.—Toronto, January 21; Ottawa, May 21, 2020.

Judges and Courts — Judicial review of Canadian Judicial Council’s (CJC) decision to constitute Judicial Conduct Review Panel (Review Panel), Review Panel’s conclusion that applicant contravening Judges Act, s. 55 — Applicant, Ontario Superior Court of Justice judge, accepting appointment to position of Interim Dean of law school — Chief Justice granting applicant special leave pursuant to Judges Act, s. 54(1) (

a) after obtaining approval from Minister of Justice — Executive Director of CJC of view that in light of Judges Act, ss. 54 , 55 , general duties, ethical obligations of Judges, acceptance by applicant of Interim Dean role may warrant consideration by Council — Referring matter to Judicial Conduct Committee Vice-Chairperson — Matter referred to Review Panel — Review Panel concluding that leave of absence granted under Judges Act, s. 54 not removing prohibition under s. 55 — Finding applicant breaching ethical obligations, impermissibly using prestige of judicial office — Vice-Chairperson endorsing Review Panel’s decision — Whether Review Panel decision reasonable, CJC proceedings procedurally unfair or abuse of process — Review Panel’s

interpretation of Judges Act, s. 55 unreasonable — “Prohibition” identified by Review Panel not “on judges carrying on extra-judicial activities” but rather on judges engaging “in any occupation or business other than his or her judicial duties” — Review Committee’s broad

interpretation exhibiting neither justification nor intelligibility — Applicant not breaching s. 55 when accepting appointment — S. 55 not complete ban on judges taking on non-judicial roles — S. 54 allowing for leave from judicial duties for reasons not inconsistent with those duties — Review Panel’s decision as to ethical breach by applicant unreasonable — Review Panel failing to examine applicant’s conduct on basis of informed public exercising mature judgment — CJC process involving applicant unfair, contrary to interests of justice — Constituting abuse of process — Nothing in record explaining how, on what basis Executive Director concluding that referral to Judicial Conduct Committee in public interest, due administration of justice — Applicant also denied procedural fairness by Executive Director — Not receiving fundamental procedural right to know case to be met — Initial referral to Judicial Conduct Committee failing to accord with CJC procedures — Executive Director raising matter on his own in absence of public complaint — In such circumstances, Executive Director ought to weight conduct against test set out in Baker v.

Canada (Minister of Citizenship and Immigration) for conduct worthy of removal from bench, be convinced that conduct could result in such a finding — Here, removal of applicant by Minister of Justice inconceivable — Applications allowed. These were applications for judicial review of the Canadian Judicial Council’s (CJC) decision to constitute a Judicial Conduct Review Panel (Review Panel) and of the Review Panel’s conclusion that the applicant contravened

section 55 of the Judges Act . The applicant, an Ontario Superior Court of Justice judge, accepted an appointment as Interim Dean of the Bora Laskin Faculty of Law at Lakehead University (the Law School). After obtaining the approval of the Minister of Justice, the Chief Justice granted the applicant special leave pursuant to paragraph 54(1) (

a) of the Judges Act to accept the assignment, subject to certain parameters, including that his role be confined to “academic leadership”.

The Executive Director of the CJC subsequently wrote to the applicant informing him that “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.” The Chief Justice informed the Executive Director of the CJC that the appointment would attract no remuneration, that the applicant’s duties would be restricted to providing only academic leadership, and that he would be insulated from concerns about future litigation.

The Executive Director nevertheless referred the matter to the Vice-Chairperson of the Judicial Conduct Committee (Vice-Chairperson). The applicant responded that he did not view

section 55 of the Judges Act as a bar to his acceptance of the position at the Law School. The applicant later signed a written agreement setting out the limitations of his appointment with Lakehead University. In August 2018, the Executive Director advised the applicant that the Vice-Chairperson had decided to constitute a review panel in respect of the appointment. The CJC later issued a press release stating that the applicant’s decision to become Interim Dean raised some questions about whether such duties were compatible with judicial office.

The Vice-Chairperson’s reasons for referral rested on his view that the applicant accepted the role without considering the reaction from First Nations chiefs or the potential effect on the prestige of judicial office. Following notice that the matter had been referred to the Review Panel, the applicant advised the Executive Director that he had resigned from his position at the Law School in September 2018 and would return to his judicial duties with the Superior Court of Justice. The Review Panel concluded that

section 55 of the Judges Act “requires judges … 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 the applicant had breached an ethical obligation to avoid becoming involved in public controversy, and he had impermissibly used the prestige of judicial office to bolster the Law School, but his conduct was not serious enough to warrant removal from the bench and it therefore decided not to constitute an inquiry committee. The Vice-Chairperson endorsed the decision of the Review Panel and concluded that in light of the applicant’s resignation from the position, no further measures were needed. The applicant sought a declaration that he did not contravene

section 55 of the Judges Act. The main issues were whether the decision of the Review Panel was reasonable, and whether the CJC proceedings were procedurally unfair or an abuse of process.

Held, the applications should be allowed. The

interpretation given by the Review Panel to

section 55 of the Judges Act was unreasonable. The “prohibition” identified by theReview Panel is set out in clear and explicit terms in the English version. However, the prohibition is not “on judges carrying on extra-judicial activities”. Rather, it is on judges engaging “in any occupation or business other than his or her judicial duties”. The ReviewCommittee interpreted the phrase “occupation or business” in isolation from its context. Properly read, the phrase says that judicial dutiesare an occupation or business. By failing to include and examine this critical qualifier in its initial

summary of the section, the ReviewPanel may have engaged in “reverse engineering” to achieve a desired outcome rather than discerning the meaning and legislative intentof the section. In ignoring the context, the Review Panel’s reasoning failed to properly apply the modern principle of statutoryconstruction. The Review Panel’s conclusion that the phrase “occupation or business” is to be broadly interpreted exhibited neitherjustification nor intelligibility. It was problematic in several respects, including the failure to consider the entire phrase. Whenconsidering the legislative history of

section 55, the Review Panel did not address or consider the original wording of the provision. Inneither official language do the words of

section 55 support the conclusion of the Review Panel that the intent of Parliament was torestrict judges from performing non-remunerative engagements. To the contrary, they are focused on remunerative commercialengagements. When a judge is appointed by Parliament or a Legislature to head a commission or act as an arbitrator, his or her judicialcompensation under the Judges Act continues and pursuant to

section 57, there is no additional remuneration. However, that does notmean that these exceptional duties are done on a non-remunerative basis. Rather, they are done for the judge’s regular remuneration. TheReview Panel’s reasoning was flawed and led to an unreasonable conclusion on

interpretation. The applicant did not breach

section 55 ofthe Judges Act when he accepted the appointment of Interim Dean. There is nothing in the language of

section 54 of the Judges Act,suggesting that leaves of absence may not be granted to enable judges to take on responsibilities outside of their judicial duties. Thisleave provision was not enacted to be used exclusively for absences “such as an illness, a period of recovery from accident or parentalleave” as the Review Panel suggested. Leaves under

section 54 are not restricted to maternity or parental leaves.

Section 55 is not acomplete ban on judges taking on non-judicial roles. Parliament’s intention was that judges are able to assume non-judicial roles incertain circumstances and

section 54 of the Act allows for a leave from judicial duties for a variety of reasons that are not inconsistentwith those duties. The decision of the Review Panel as to the ethical breach of the applicant in accepting the appointment wasunreasonable and could not stand. The Review Panel failed to examine whether the applicant’s conduct unnecessarily exposed him tocriticism or attack on the basis of an informed public exercising mature judgment. The CJC process involving the applicant was unfair to the point that it was contrary to the interests of justice.

It was an abuse of process.The CJC disciplinary procedure was misused from the beginning, i.e. when the Executive Director determined that the applicantaccepting the appointment to the Law School was a matter that “warrants consideration.” There was nothing in the record explaininghow and on what basis the Executive Director concluded that his referral to the Judicial Conduct Committee was in the public interestand the due administration of justice. The Executive Director placed no weight on the Minister’s approval of the applicant’sappointment.

The Minister’s approval could not reasonably be said to be “unofficial” simply because she did not expressly use the word“approved.” In addition to the improper decision of the Executive Director that the matter “warrants consideration” there was evidence inthe record that the applicant was also denied procedural fairness by the Executive Director. Specifically, the applicant was not informedof the Executive Director’s concerns about the call for him to resign, nor was he provided with any of the “public comments” made inresponse to statements made by First Nations chiefs, nor those statements.

The Executive Director failed to give to the applicant thefundamental procedural right to know the case to be met. If the real concern of the Executive Director was the adverse reaction of someFirst Nations chiefs to his appointment, then the applicant was entitled to know that and respond to it. Accordingly, the initial referral tothe Judicial Conduct Committee by the Executive Director failed to accord with the procedures established by the CJC. It was not amatter that warranted consideration, and the referral was done in a procedurally unfair manner.

In raising matters on his own in theabsence of any complaint from the public, the Executive Director would be well advised seriously to consider whether to do so. TheExecutive Director ought to weigh conduct against the test set by the Supreme Court in Baker v. Canada (Minister of Citizenship andImmigration) for conduct worthy of removal from the bench. Although that ultimate decision is not his to make, he ought to be convincedthat it could result in such a finding. Here, in light of the approval of the Minister of Justice, removal action by the Minister of Justicewas inconceivable.

The declarations sought by the applicant were appropriate. The Court declared that the applicant, in accepting the appointment of InterimDean, did not breach

section 55 of the Judges Act, nor did he breach his judicial ethics. STATUTES AND REGULATIONS CITED

An Act to amend the Act respecting the Judges of Provincial Courts, S.C. 1905, 4-5 Edward VII, c. 31, s. 7. Canadian Judicial Council Inquiries and Investigations By-laws, 2015, SOR/2015-203, s. 2(1). Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.),

Schedule to the Constitution Act,1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 99. Federal Courts Rules, SOR/98-106, rr. 109, 303(2). Judges Act, R.S.C. 1906, c. 138, s. 33. Judges Act, R.S.C., 1985, c. J-1, ss. 54 to 56.1, 54, 55, 56, 56.1, 57. Judges Act, 1946 (The), S.C. 1946, c. 56, s. 34. CASES CITED APPLIED: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1; Baker v. Canada (Minister ofCitizenship and Immigration), [1999] 2 S.C.R. 817, ; Blencoe v. British Columbia (Human Rights Commission), 2000

SCC 44, [2000] 2 S.C.R. 307; Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3. CONSIDERED: Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, 441 D.L.R. (4th) 269; Moreau-Bérubé v. New Brunswick(Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249; Ruffo v. Conseil de la magistrature, (SCC), [1995] 4 S.C.R. 267,(1995), 130 D.L.R. (4th) 1; Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2S.C.R. 282; Cosgrove v. Canadian Judicial Council, 2007 FCA 103, [2007] 4 F.C.R. 714. REFERRED TO: Girouard v.

Canada (Attorney General), 2018 FC 865, [2019] 1 F.C.R. 404, affd 2019 FCA 148, [2019] 3 F.C.R. 503, leave to appeal tothe S.C.C. refused December 12, 2019; Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147;Girouard v. Canada (Attorney General), 2019 FC 434; Girouard v. Canada (Attorney General), 2019 FC 1282; Canadian JudicialCouncil v. Girouard, 2019 FCA 148, [2019] 3 F.C.R. 503; Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502; Canada(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Garces Caceres v.

Canada (Public Safety and EmergencyPreparedness), 2020 FC 4; Ebrahimshani v. Canada (Citizenship and Immigration), 2020 FC 89; Ennis v. Canada (Attorney General),2020 FC 43; Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121; R. v. Daoust, 2004SCC 6, [2004] 1 S.C.R. 217; Sandoz Canada Inc. v. Canada (Attorney General), 2014 FC 501, 122 C.P.R. (4th) 195. AUTHORS CITED Canada. Parliament. Senate. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 35th Parl., 2nd Sess.,Issue No. 29 (October 3, 1996). Canadian Judicial Council.

Canadian Judicial Council Procedures for the Review of Complaints or Allegations About FederallyAppointed Judges, 2015. Canadian Judicial Council. News Release, “Canadian Judicial Council review of a matter involving the Honourable Patrick Smith” (3October 2018). Canadian Judicial Council. Ethical Principles for Judges, 2004. Canadian Judicial Council. Report of the Review Panel constituted by the Canadian Judicial Council regarding the Honourable PatrickSmith, November 5, 2018. Canadian Judicial Council.

Reasons for the referral of a complaint to a Judicial Conduct Review Panel in the matter of the HonourablePatrick Smith of the Ontario Superior Court of Justice, October 3, 2018. “Justice Patrick Smith named interim dean of Lakehead law school”, CBC News (May 3, 2018). McQuigge, Michelle. “Judge fights against disciplinary body’s ruling that said he engaged in misconduct”, Toronto Star (27 September2018). Schmitz, Cristin. “Canadian judges rally around judge facing discipline for accepting interim law dean post at Lakehead University”, TheLawyer’s Daily (4 October 2018).

APPLICATIONS for judicial review of the Canadian Judicial Council’s decision to constitute a Judicial Conduct Review Panel and ofthe Review Panel’s conclusion that the applicant contravened

section 55 of the Judges Act. Applications allowed. APPEARANCES Brian Gover and Pam Hrick for applicant. Michael H. Morris, Joseph Cheng and Elizabeth Koudys for respondent. Christopher D. Bredt, Ewa Krajewska and Teagan Markin for intervener Canadian Judicial Council. Richard P. Stephenson and Michael Fenrick for intervener Canadian Superior Courts Judges Association. Tom Curry, Scott Rollwagen and Margaret Robbins for intervener Ontario Superior Court Judges’ Association. SOLICITORS OF RECORD Stockwoods LLP, Toronto, for applicant. Deputy Attorney General of Canada for respondent.

Borden Ladner Gervais LLP, Toronto, for intervener Canadian Judicial Council. Paliare Roland Rosenburg Rothstein LLP, Toronto, for intervener Canadian Superior Courts Judges Association. Lenczner Slaght Royce Smith Griffin LLP, Toronto, for intervener Ontario Superior Court Judges’ Association. The following are the reasons for judgment and judgment rendered in English by

Zinn J.: “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 A.C.J.), 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 [Report of the Review Panel constituted by the Canadian Judicial Council regarding the Honourable Patrick Smith] (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 , R.S.C., 1985, c. J-1 [the Act ].

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 A.C.J. for a decision on the most appropriate way to resolve the matter. [ 4 ] Pidgeon A.C.J., 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 A. 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 [ Rules ], leave to intervene was granted to the Canadian Superior Courts Judges Association and the Ontario Superior Court Judges' Association. [ 9 ] The Attorney General of Canada was named as the respondent pursuant to subsection 303(2) [of the Rules ]. 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 A.C.J. 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 , [2019] 1 F.C.R. 404 , appeal dismissed Canadian Judicial Council v.

Girouard , 2019 FCA 148 , [2019] 3 F.C.R. 503 , leave to appeal to the S.C.C. 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 , [2015] 3 S.C.R. 147 . B.

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 October 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 A.C.J.. 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 A.C.J. 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 A.C.J. 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 – 1950) 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 A.C.J.. His position title was modified to Interim Dean (Academic) to reflect the limitations on his role. [ 32 ] On July 12, 2018, Pidgeon A.C.J. 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 A.C.J. 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 [“Canadian Judicial Council review of a matter involving the Honourable Patrick Smith”], 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 A.C.J. 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 [ Reasons for the referral of a complaint to a Judicial Conduct Review Panel in the matter of the Honourable Patrick Smith of the Ontario Superior Court of Justice , October 3, 2018], in relevant part, are as follows [at pages 3, 5, 6, 7,10, 11]: ….

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 A.C.J..] 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: Establishment of Judicial Conduct Review Panel 2

(1) 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 A.C.J. 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: C.9 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 A.C.J. 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 A.C.J. writes [at page 8] 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 A.C.J. 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 A.C.J. reconsider his decision to refer the matter to the Review Panel. Mr.

Sabourin replied on September 19, 2018, that Pidgeon A.C.J. 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 [at paragraph 47] 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 A.C.J. [at paragraph 80] 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: i. whether the decision of the Review Panel decision is reasonable; ii. whether the CJC proceedings were procedurally unfair or an abuse of process; and

iii. if the applications succeed, what is the appropriate remedy? IV. ANALYSIS A. Is the Review Panel Decision Reasonable ? [ 52 ] The Review Panel [at paragraph 76] 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 , 441 D.L.R. (4th) 1 ( 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 , 441 D.L.R. (4th) 269 , 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 administrative decision maker, is the “modern principle” of statutory

interpretation, that is, that the words of a statute must be read “‘in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act , and the intention of Parliament’” (paragraphs 117 – 118); 2. “[T]he merits of an administrative decision maker’s

interpretation of a statutory provision must be consistent with the text, context and purpose of the provision.” “[T]he usual principles of statutory

interpretation apply equally when an administrative decision maker interprets a provision. Where, for example, the words used are ‘precise and unequivocal’, their ordinary meaning will usually play a more significant role in the interpretive exercise” (paragraph 120); and 3. “[E]ven though the task of a court conducting a reasonableness review is not to perform a de novo analysis or to determine the ‘correct’

interpretation of a disputed provision, it may sometimes become clear in the course of reviewing a decision that the interplay of text, context and purpose leaves room for a single reasonable

interpretation of the statutory provision, or aspect of the statutory provision, that is at issue” [italics in original] (paragraph 124).

[ 59 ] The CJC, at paragraph 67 of its memorandum of argument, and referencing Girouard v. Canada (Attorney General) , 2019 FC 434 , at paragraph 26 ; Girouard v. Canada (Attorney General) , 2019 FC 1282 , at paragraph 71 ; and Moreau-Bérubé v. New Brunswick (Judicial Council) , 2002 SCC 11 , [2002] 1 S.C.R. 249 ( Moreau-Bérubé ), at paragraphs 44 and 49 ; submits, “The composition and constitutional role of the Council demands deference to its assessment of judicial conduct.” [ 60 ] Justice Smith takes issue with the claim of the CJC that it has any such constitutional role.

He correctly notes that the Federal Court of Appeal has concluded that the investigative power of the CJC is a statutory power and that the only procedure provided for in the constitution for removal of a superior court judge is that set out in subsection 99(1) of the Constitution Act, 1867 : See Canadian Judicial Council v.

Girouard , 2019 FCA 148 , [2019] 3 F.C.R. 503 , paragraphs 38 – 46 . [ 61 ] He further notes that the CJC at paragraphs 10, 67, and 87 of its memorandum, contends that it has a constitutional role in judicial discipline delegated to it under the Judges Act , that it is a special body with a special purpose performing the essential constitutional task of determining the boundaries of ethical judicial conduct and judicial independence, and that the composition and constitutional role of the Council demands deference to its assessment of judicial conduct.

He submits that in making those submissions, the CJC has clothed itself with a role that does not belong to it. He says that the only constitutional actor in this process is the Minister of Justice, who is responsible for making any address to Parliament under

section 99 of the Constitution Act, 1867 . [ 62 ] I agree with the submissions of Justice Smith that only the Minister of Justice plays a constitutional role in the matter of judicial conduct. [ 63 ] I also agree with the submissions of the Attorney General of Canada regarding deference.

Although the concept of deference in judicial review continues to have a role, Vavilov , at paragraphs 30 and 31 , makes it clear that the previous rationale for the proposition that deference is owed by a reviewing court to the decision maker’s relative expertise, no longer holds true: While specialized expertise and these other rationales may all be reasons for a legislature to delegate decision-making authority, a reviewing court need not evaluate which of these rationales apply in the case of a particular decision maker in order to determine the standard of review.

Instead, in our view, it is the very fact that the legislature has chosen to delegate authority which justifies a default position of reasonableness review. … We wish to emphasize that because these reasons adopt a presumption of reasonableness as the starting point, expertise is no longer relevant to a determination of the standard of review as it was in the contextual analysis. [Italics in original.] [ 64 ] In

summary, as the Supreme Court states at paragraph 58 of Vavilov , “the consideration of expertise is folded into the new starting point adopted in these reasons, namely the presumption of reasonableness review.” [ 65 ] The CJC also cites paragraph 49 of Moreau-Bérubé wherein the Supreme Court of Canada writes, “There is no basis upon which one could claim that a single judge sitting in judicial review of a decision of the Council would enjoy a legal or judicial advantage.” With respect, I may not enjoy a legal or judicial advantage to the Review Panel, but neither do I suffer any disadvantage.

Indeed, one might ask what advantage the Review Panel has in this matter in light of the Attorney General and two judges’ associations, one of which represents superior court judges across Canada, expressing the view that the Review Panel’s decision is unreasonable. The point surely is that judicial review is not a quantitative analysis, but a qualitative one; one judge is as well placed as several when performing that task. [ 66 ] In any event, Moreau-Bérubé was decided before Vavilov and the Supreme Court of Canada’s “revised framework” for judicial review of administrative decisions.

Thus, it must be read with some caution. The comment the CJC relies on is directed at the suggested expertise of the decision maker and that is no longer the separate consideration it once was. [ 67 ] The standard of review applicable to Justice Smith’s claim that the CJC process and resulting decision was procedurally unfair and an abuse of process is not reasonableness. In my view, Vavilov has not changed the law pertaining to procedural fairness; the standard of review remains correctness: Mission Institution v.

Khela , 2014 SCC 24 , [2014] 1 S.C.R. 502 , at paragraph 79 ; Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339 , at paragraph 43 ; and see Garces Caceres v. Canada (Public Safety and Emergency Preparedness) , 2020 FC 4 , at paragraph 23 ; Ebrahimshani v. Canada (Citizenship and Immigration) , 2020 FC 89 , at paragraph 12 ; Ennis v. Canada (Attorney General) , 2020 FC 43 , at paragraph 18 . Whether a particular process was procedurally fair remains “‘eminently variable’, inherently flexible and context-specific”: Vavilov , at paragraph 77 .

This Court will consider whether the process employed was fair in the specific context of the decision, having regard to the Baker [1] factors: Vavilov , at paragraph 23 ; Canadian Pacific Railway Company v. Canada (Attorney General) , 2018 FCA 69 , [2019] 1 F.C.R. 121 , at paragraphs 40 , 54 – 56.

(1) Section 55 of the Judges Act [ 68 ] I turn first to consider whether the Review Panel’s

interpretation of

section 55 of the Judges Act is reasonable. Did it read the words of that

section “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act , and the intention of Parliament?” [ 69 ] In conducting this exercise it is important to recall that federal statutes are bilingual, in French and in English, and both are equally authoritative. The shared meaning principle stipulates that in cases of discrepancies between the English and French versions of a statute, the meaning common to both versions must be accepted, unless evidence of legislative intent indicates otherwise: R. v.

Daoust , 2004 SCC 6 , [2004] 1 S.C.R. 217 . If the meaning of one version is broader than the other, the narrower version should be adopted: Sandoz Canada Inc. v. Canada (Attorney General) , 2014 FC 501 122 C.P.R. (4th) 195 . [ 70 ]

Section 55 was first enacted in 1905 as

section 7 of An Act to amend the Act respecting the Judges of Provincial Courts , S.C. 1905, 4-5 Edward VII, c. 31. The marginal note to

section 7 is “Judges restricted to judicial duties / Les juges ne s’occuperont que de

leurs fonctions judiciaires ” and it reads as follows: Judges restricted to judicial duties 7. No judge mentioned in this Act shall, either directly or indirectly as director or manager of any corporation, company, or firm, or in any other manner whatever, for himself or for others, engage in any occupation or business other than his judicial duties; but every such judge shall devote himself exclusively to such judicial duties. [ 71 ] This provision is

section 33 of the Judges Act , R.S.C. 1906, c. 138, headed “JUDGES NOT TO ENGAGE IN BUSINESS / LES JUGES NE PEUVENT SE LIVRER AUX AFFAIRES ” and with a marginal note that reads “No judge to engage in business other than his judicial duties / Les juges doivent se consacrer exclusivement à leurs fonctions judiciaires ” . It reads as follows: No judge to engage in business other than his judicial duties 33.

No judge of the Supreme Court of Canada or of the Exchequer Court of Canada or of any superior or county court in Canada shall, either directly, or indirectly as director or manager of any corporation, company, or firm, or in any other manner whatever, for himself or others, engage in any occupation or business other than his judicial duties; but every such judge shall devote himself exclusively to such judicial duties. [ 72 ] The heading of sections 55 to 56.1, as they currently read, is “EXTRA-JUDICIAL EMPLOYMENT / FONCTIONS EXTRAJUDICIARES ” and the marginal note for

section 55 is “Judicial duties exclusively/ Incompatibilités ” .

Section 55 reads: Judicial duties exclusively 55 No judge shall, either directly or indirectly, for himself or herself or others, engage in any occupation or business other than his or her judicial duties, but every judge shall devote himself or herself exclusively to those judicial duties. [ 73 ] The Review Panel at paragraphs 38 and 39 of its decision says of

section 55 : …. Although its wording has been changed periodically, the

section has always been comprised of two foundational components: (

a) A prohibition on judges carrying on extra-judicial activities; and (

b) A requirement that judges devote themselves exclusively to their judicial duties. The prohibition, and the requirement are set forth in clear and explicit terms in the current version of

section 55. [Emphasis added.] [ 74 ] The noted prohibition component on “carrying out extra-judicial activities” is found in the first phrase of the English language version of the

section — “No judge shall … engage in any occupation or business other than his or her judicial duties.” However, the French language version reads differently. A more literal translation of the French version is that “Judges shall devote themselves to their judicial functions to the exclusion of any other activity.” This does not appear to have the two components noted by the Review Panel.

Rather, it is directed only to the second foundational component identified by the Review Panel - a requirement that judges devote themselves exclusively to their judicial duties. [ 75 ] I agree with the Review Panel that the “prohibition” it identifies is set out in clear and explicit terms in the English version. However, the Review Panel does not accurately capture that prohibition in its passage quoted above. The prohibition is not, as it writes [at paragraph 38], “on judges carrying on extra-judicial activities” [emphasis added.] Rather, as the

section explicitly states, it is on judges engaging “in any occupation or business other than his or her judicial duties” [emphasis added.] [ 76 ] Although subsequently the Review Panel interprets the phrase “occupation or business” it does so in isolation from its context. The full phrase — “any occupation or business other than his or her judicial duties” — provides an important interpretative context. Properly read, it says that judicial duties are an occupation or business.

They are therefore reliable examples of what is meant by the phrase “occupation or business” guiding the reader in how the phrase is to be interpreted. The same holds true if one looks to the French language phrase “ à leurs fonctions judicaires à l’exclusion de toute autre activité ”. [ 77 ] The failure to include and examine this critical qualifier in its initial

summary of the

section leads me to wonder whether the Review Panel is engaging in “reverse engineering” to achieve a desired outcome rather than discerning the meaning and legislative intent of the section. The Supreme Court of Canada at paragraph 121 of Vavilov expressly warned against that manner of proceeding. In any event, in ignoring the context, the Review Panel’s reasoning fails to apply properly the modern principle of statutory construction. [ 78 ] When the Review Panel does turn its attention to the phrase “occupation or business” albeit standing alone, it concludes that it is to be broadly interpreted.

It reaches that conclusion by looking at the French language equivalent — “ activité ” — and dictionary

definitions of the English language word occupation [at paragraphs 40 –41] : The prohibition in the English version is expressed in terms of an “occupation or business”, whereas the French version uses the broader term “ activité ” . The English version, by referring to “occupation or business” may imply that the prohibition is limited to some form of remunerative livelihood, but the French version, by using the broader term, is more explicit in prohibiting any activity other than judicial functions. The broader

interpretation of the word “occupation” to include non-remunerative pursuits and activities is consistent with various dictionary

definitions of the word and with the French version of

section 55 . [Emphasis added.] [ 79 ] This reasoning exhibits neither justification nor intelligibility. It is problematic in several respects, including the failure to

consider the entire phrase as previously discussed. [ 80 ] First, the Review Panel states [at paragraph 41] that the “broader

interpretation of the word ‘occupation’ to include non- remunerative pursuits and activities is consistent with various dictionary

definitions of the word” but it does not point to any dictionary definition it relies on. The record contains none, leading me to question whether any were before the Review Panel. [ 81 ] Second, while one use of the English word “occupation” might be said to include non-remunerative activity — such as in the statement “On Saturdays my occupation is chauffeur because every Saturday I drive my son to his football match” — others (and I suggest most) clearly reflect remunerated activities.

In response to the question: “What is your occupation?” I daresay the response of four members of the Review Panel would be “Judge” — a paid occupation. [ 82 ] Third, the Review Panel only examines the word “occupation” and ignores the word “business” in

section 55 . In my view, the plain and clear import when it is said that one is engaging in business is that they are being remunerated. [ 83 ] The view of the Review Panel that

section 55 is to be interpreted as prohibiting any activity (remunerated or not) other than judicial functions is not one shared by all. Indeed, as Pidgeon A.C.J. himself noted in his letter referring the matter to the Review Panel, in 2015, the Chief Justice of the Ontario Court of Appeal, the Honourable George Strathy, in response to a request from the Judicial Conduct Committee regarding the

interpretation of sections 55 and 56 of the Judges Act , said [reasons for referral, at page 7]: 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.] [ 84 ] The Review Panel considers the legislative history of

section 55 and, in reference to the opinion of Murray Segal, notes, “some of the remarks during the initial debates in the House of Commons in 1905, including those of Prime Minister Laurier, reflected a concern to restrict the commercial activities of judges.” In those debates, the Prime Minister, responding to a question of whether the provision would prevent judges from acting as arbitrators in a reference involving Canada and the Provinces, responded: But what parliament intends and what we are all agreed to is that judges should not be allowed to participate in any kind of business which is of a commercial character ; they should not be directors of insurance companies or banks or such.

But as regards anything of a judicial character, I do not think any one has the intention of preventing the judges from acting. [Emphasis added.] [ 85 ] A statement made by the Prime Minister at the time as to the intent of Parliament and its members ought to be accorded significant weight, if not considered conclusive on the issue of parliamentary intent. However, in response to the Prime Minister’s statement, the Review Panel writes [at paragraph 42]: …. other members took a broader view.

The Minister of Justice, Charles Fitzpatrick (later Chief Justice of Canada) commented that “The less a judge has to do with matters which are not clearly within the scope of his duties, the better for himself and the dignity of the bench.” [ 86 ] I agree with the submission of the Attorney General of Canada, that the Review Panel ignores the context in which that statement was made. In extracting a single sentence from its context, the Review Panel gives it a meaning it does not have. [ 87 ] The Minister of Justice had been asked by Mr.

Foster whether the provision being debated would prevent judges from “going on commissions.” The context discloses that the Minister of Justice was not, as the Review Panel says, stating his preference that judges do nothing outside their judicial duties, rather his comment focuses on judges sitting on minor commissions, as the full report shows: Mr. FOSTER. Will that [clause] prevent judges from going on commissions? We know that a good deal of discussion has arisen of late about judges being appointed to commissions at various times.

Sometimes these are high matters of interest in which it might be desirable to appoint judges; but in other cases they are minor matters, and the judges are left open to a great deal of criticism and cross currents of opinion, which do not seem to add very much to the dignity of the bench or to the respect in which judges should be held throughout the country. In fact, when you take a judge from the bench and make him commissioner in a matter involving other than legal points, you rather take his robe of dignity from him.

He becomes then more like an ordinary individual and becomes subject to criticism to which a judge ought not to be subject. He comes down, so to speak, into the general arena, and stands to get a good deal of dust upon his clothes. I would like to know how far this goes towards preventing judges taking up commissions of the smaller kind and which are outside their judicial functions, or international affairs.

I quite agree that on an international commission it may be quite necessary to have judges; but the Minister of Justice will understand what I allude when I say that there are commissions and employments which, when participated in by judges, detract from the general respect to which the bench ought to be held. Mr. FITZPATRICK . This amendment to the Act respecting judges will operate as a clear notice that judges are not to be employed in connection with commissions, except where it is important in the public interest that they should be so employed.

I think the less a judge has to do with matters which are not clearly within the scope of his judicial duties, the better for himself and the dignity of the bench. Of that I am absolutely convinced. I would even go so far as to say that I entertain grave doubts as to the constitutionality of such appointments. That question arose in Parliament when it was decided by the British Parliament to refer matters arising out of contested elections to the courts.

When the courts were first charged with the duties investigating such matters, Chief Justice Cockburn wrote a strong letter of protest from the constitutional standpoint. That protest was of no avail, but nevertheless it showed that there was considerable doubt as to the right of the judges to sit in such matters. There are cases, however, where it is in the public interest that we should utilize the service of the judges outside the bench, but only in matters of urgent public necessity. [ 88 ] The Attorney General of Canada also references Bill 13 in 1906, which proposed further amendments to the section.

It was introduced, but failed to receive Royal Assent. Importantly, and not referenced by the Review Panel, there was further discussion “providing additional insight into the intention of Parliament.” Specifically, there was reference to the ability of a judge to teach in a law

school, notwithstanding the restrictions set out in the Judges Act . The same Minister of Justice, Mr. Fitzpatrick, was asked whether “the law of last year excludes also the teaching in universities.” The Minister responded that it did not prohibit teaching: No. I would be disposed, mysel

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