Oct 27, 2020

Using a Practitioner’s Status and Prestige

Smith v. Canada (Attorney General), 2020 FC 629 (CanLII)

Practitioners have a status in society that can be misused. In addition, engaging in certain activities outside of the profession can affect one’s ability to practise the profession objectively or even bring disrepute to the profession. It is for those reasons that some professions have ethical rules related to these concerns. For example, some health professions in Canada do not condone practitioners appearing in advertisements promoting health products to consumers.

Misusing one’s status and prestige is a concern for judges who must be, and be seen to be, impartial. A recent decision, that had a high profile in the legal community, addresses the boundaries of this concern. In Smith v Canada (Attorney General), 2020 FC 629, http://canlii.ca/t/j7v4k a Judge accepted an unpaid appointment of Interim Dean (Academic) to a law school that was undergoing a crisis. Justice Smith obtained the approval of both the Chief Justice in his province and, impliedly, the Minister of Justice. Nevertheless, the regulator for federally appointed judges, the Canadian Judicial Council initiated an inquiry and rendered a letter of concern. Justice Smith sought judicial review.

Much of the case dealt with the scope of a statutory provision preventing judges from having an occupation outside of their judicial duties. The Federal Court found no violation of that section.

On the ethical issue of misusing the judge’s judicial status or risking the compromising of his judicial duties, the Court held that the concerns were not justified. The Court said:

The association of a judge with any extra-judicial organization will, to some degree, bolster its reputation, status and public confidence. It is for precisely that reason that law schools seek to have judges teach. …. If that were the test, then no judge could ever join or participate in any extra-judicial civic, religious, or charitable organization.

The Court was also concerned that the initiation of the investigation, in the absence of a complaint and given the approval of the Chief Justice and Minister of Justice, was procedurally unfair to the point of being an abuse of process. The Court concluded that the regulator failed to disclose to the Judge the true nature of the concern and the matter did not warrant consideration because it could not have resulted in the Judge’s removal.