The Supreme Court of Canada in Ottawa on Tuesday, July 10, 2012. THE CANADIAN PRESS/Sean Kilpatrick

New guidelines on ethical dos, don’ts for retired judges coming next year

The post-retirement contributions of Supreme Court judges is under scrutiny

Those who sit on the bench can soon expect extra guidance on what they should — and should not — be doing after retirement, according to organizations that oversee lawyers and judges.

The post-retirement contributions of Supreme Court judges is under scrutiny after the federal ethics watchdog’s report on the SNC-Lavalin scandal revealed how their opinions were sought after by players on all sides of a dispute at the heart of the Liberal government.

That included retired chief justice Beverley McLachlin. Senior aides in the Prime Minister’s Office urged Jody Wilson-Raybould, who was attorney general at the time, to ask McLachlin for advice on the legality of intervening in the case against the Montreal engineering giant.

They did not tell her that both SNC and a senior PMO adviser had already had preliminary talks with McLachlin about providing her opinion, or acting as a mediator between SNC and the public prosecutor over entering into a remediation agreement. The report said McLachlin, who did not respond to a request for comment Thursday, had expressed her willingness to meet with Wilson-Raybould, but had reservations about it.

The report also noted that former Supreme Court justice Frank Iacobucci, who was legal council for SNC-Lavalin, wrote and circulated to government an analysis on the legality of overturning the public prosecutor’s refusal to negotiate a remediation agreement with the company. And he solicited a second legal opinion on the matter from yet another former Supreme Court justice, John Major.

ALSO READ: Judges on Twitter? Ethical guidance for those on the bench under review

The Canadian Judicial Council and the Federation of Law Societies have been working together on updating the ethical principles for judges, including a look at their careers after retirement.

“Judges, like all of us, are experiencing a greater life expectancy and quality of life,” Johanna Laporte, spokeswoman for the Canadian Judicial Council, wrote in a statement.

“Some are retiring early,” she said. “This means that many former judges want to continue to contribute to society in a meaningful way.”

Individual courts and provincial law societies already have rules for former judges who return to legal careers, such as a cooling-off period before they can appear in court.

The new guidelines could go further.

Laporte said a majority of those who participated in public consultations on the issue agreed judges should not argue a case or appear in court, with even more saying retired judges should not be able to leverage their former position to gain a business advantage.

“(We) have been discussing how ethical principles can best complement the rules,” wrote Laporte, who expects the revised guidelines to be published next year.

The Federation of Law Societies issued a statement saying it has also consulted on possible amendments that “would impose additional restrictions and obligations on retired judges who return to the practice of law.”

Michael Spratt, an Ottawa-based criminal defence lawyer, said it could be tricky to come up with rules that still allow retired judges some leeway in sharing their expertise.

“I think that there is a risk in being overly restrictive in rules about what judicial actors can do,” he said. “We might be losing good applicants to the bench and we might also be depriving ourselves of some very, very good expertise that can provide a real benefit.”

Still, Spratt said he was concerned by the extent to which the report revealed the PMO was trying to involve retired Supreme Court judges to help them persuade Wilson-Raybould.

“I think that the easiest solution is for governments to constrain themselves and to stop using judges, or former judges, as political pawns,” he said.

“Using judges in this way, especially when there are partisan political interests at stake, risks eroding public trust in a very important pillar of our democracy, and that is the judiciary,” said Spratt, whose mother-in-law, Louise Arbour, is also a retired Supreme Court justice.

“If the public thinks that judges can be bought or swayed, even if they’re retired, that might erode important aspects of our democracy and reduce confidence in those institutions,” he said.

Wilson-Raybould, who had hired former Supreme Court justice Thomas Cromwell to advise her on what she could say publicly about the SNC-Lavalin controversy, said her biggest issue with the PMO involving other retired judges is that she was kept in the dark.

“Governments, public officials are at liberty to seek advice from people, retired justices included. I am not going to pass judgment on whether it was proper. It happens,” she said in an interview with The Canadian Press.

“What I feel is difficult to understand or potentially, I don’t want to use the word strange but I will, is that this happened unbeknownst to the attorney general of Canada,” she said.

— With files from Kristy Kirkup

Joanna Smith, The Canadian Press

Like us on Facebook and follow us on Twitter.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Health and safety regulations to be followed by schools as they reopen Monday

Ministry of Education wrote a letter to parents dated May 28.

Wear a mask to protect others, says Vanderhoof’s top doctor

“I think wearing a mask is a small inconvenience when weighed against the possibility of giving vulnerable members of our community an infection that could kill them,” the doctor said.

Here is what school will look like for FLESS students

Students are going back to school on June 1 on a voluntary, part-time basis.

7 projects in Vanderhoof, Fraser Lake and Burns Lake receive NKDF funding

Nechako-Kitamaat Development Fund Society announced $139,702 in funding on May 29.

If Trudeau won’t stand up to Trump, how will regular people: Singh

Trudeau did not directly answer a question about Trump’s actions amid protests

As two B.C. offices see outbreaks, Dr. Henry warns tests don’t replace other measures

Physical distancing, PPE and sanitizing remain key to reduce COVID-19 spread

Young killer whale untangles itself from trap line off Nanaimo shore

DFO marine mammal rescue unit was en route as whale broke free from prawn trap line

Racist incident shocks Vancouver Island First Nation

Port Alberni RCMP investigating after video shows truck wheeling through Tseshaht territory

Vancouver Island school principal mourns brother, cousin killed during U.S. protests

Jelks says he’s grateful for the outpouring of support from the community in the wake of this tragedy

Introducing the West Coast Traveller: A voyage of the mind

Top armchair travel content for Alaska, Yukon, BC, Alberta, Washington, Oregon and California!

Bank of Canada keeps key interest rate target on hold at 0.25%

Central bank now expects GDP to decline between 10 and 20 per cent compared with the fourth quarter of 2019

RCMP, coroner investigate murder-suicide on Salt Spring Island

Two dead, police say there is no risk to the public

B.C. schools see 30% of expected enrolment as in-class teaching restarts amid pandemic

Education minister noted that in-class instruction remains optional

Most Read