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

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.

Just Posted

Talia McKay of Williams Lake is a burn survivor who remains grateful for the support she received from the Burn Fund (Monica Lamb-Yorski photo - Williams Lake Tribune)
’You have to allow yourself the grace to heal’: B.C. burn survivor reflects on her recovery

Learning how to stand straight and walk again was a feat said Williams Lake resident Talia McKay

As a former reporter and editor at the Tribune, Diana French carries on sharing her ideas through her weekly column. (Photo submitted)
FRENCH CONNECTION: Worth taking another look at hemp for paper production

Ninety years after being deemed illegal, few are afraid of marijauna

Ranch Musings columnist David Zirnhelt. (File photo)
RANCH MUSINGS: Milking cows and strangers on the premises

Cows in a milking barn may get upset if a stranger comes

Lake City Secondary School Grade 12 students Haroop Sandhu, from left, Amrit Binning and Cleary Manning are members of the school’s horticulture club. (Monica Lamb-Yorski photo - Williams Lake Tribune)
LCSS horticulture club a growing success

Aspiring gardeners at a Williams Lake secondary school are earning scholarship dollars… Continue reading

Jim Hilton pens a column on forestry each week for the Tribune.
FOREST INK: Plenty of changes happening in forest industry

A new process produces a biodegradable plastic-like product from wood waste powder

Daily confirmed COVID-19 cases reported to B.C. public health, seven-day rolling average in white, to May 12, 2021. (B.C. Centre for Disease Control)
B.C. preparing ‘Restart 2.0’ from COVID-19 as June approaches

Daily infections fall below 500 Friday, down to 387 in hospital

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

A vial of AstraZeneca vaccine is seen at a mass COVID-19 vaccination clinic in Calgary, Alta., Thursday, April 22, 2021. Dr. Ben Chan remembers hearing the preliminary reports back in March of blood clots appearing in a handful of European recipients of the Oxford-AstraZeneca COVID-19 vaccine. THE CANADIAN PRESS/Jeff McIntosh
Science on COVID, VITT constantly changing: A look at how doctors keep up

While VITT can represent challenges as a novel disorder, blood clots themselves are not new

Poached trees that were taken recently on Vancouver Island in the Mount Prevost area near Cowichan, B.C. are shown on Sunday, May 10, 2021. Big trees, small trees, dead trees, softwoods and hardwoods have all become valuable targets of tree poachers in British Columbia as timber prices hit record levels. THE CANADIAN PRESS/Jen Osborne.
Tree poaching from public forests increasing in B.C. as lumber hits record prices

Prices for B.C. softwood lumber reached $1,600 for 1,000 board feet compared with about $300 a year ago

The warm weather means time for a camping trip, or at least an excursion into nature. How much do you know about camps and camping-related facts? (John Arendt - Summerland Review)
QUIZ: Are you ready to go camping?

How many camp and camping-related questions can you answer?

On Friday, May 14 at Meadow Gardens Golf Club in Pitt Meadows, Michael Caan joined a very elite club of golfers who have shot under 60 (Instagram)
Crowds at English Bay were blasted with a large beam of light from an RCMP Air-1 helicopter on Friday, May 14. THE CANADIAN PRESS/Marc Grandmaison
Police enlist RCMP helicopter to disperse thousands crowded on Vancouver beach

On Friday night, police were witness to ‘several thousand people staying well into the evening’

People shop in Chinatown in Vancouver on Friday, February 5, 2021. THE CANADIAN PRESS/Jonathan Hayward
Vancouver community leaders call for action following 717% rise in anti-Asian hate crimes

‘The alarming rise of anti-Asian hate in Canada and south of the border shows Asians have not been fully accepted in North America,’ says Carol Lee

Sinikka Gay Elliott was reported missing on Salt Spring Island on Wednesday, May 12. (Courtesty Salt Spring RCMP)
Body of UBC professor found on Salt Spring Island, no foul play suspected

Sinikka Elliott taught sociology at the university

Most Read