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Wayne MacKay is professor Emeritus, Schulich School of Law, Dalhousie University

Canadians have probably given little thought to what retired judges do. Many pursue active careers and not surprisingly return to practising law in some form. Judges are being appointed at younger ages, living longer lives and retiring before the mandatory age. As post-court legal careers for retired judges are becoming more common, the question has surfaced whether there should be ethical guidelines as to the work they do – in order to maintain public confidence in the courts.

Retired judges are no longer bound by the principles that apply to sitting judges, such as abstention from political activities. Indeed, a retired judge would be legally eligible to be appointed to the Canadian Senate or exercise their constitutional right to run for public office. Nonetheless, we tend to find it jarring when retired judges are actively involved in high-profile political issues such as the SNC-Lavalin affair.

Ethics Commissioner Mario Dion’s report has sparked a lively debate about the role retired Supreme Court justices, as well as judges generally, should play in Canadian public affairs. Four retired Supreme Court of Canada justices were involved in the SNC-Lavalin affair: Frank Iacobucci acted as SNC-Lavalin’s legal counsel in this matter; his former judicial colleague John Major provided a legal opinion on the refusal of the Public Prosecution Service to grant a deferred prosecution agreement; and former chief justice Beverley McLachlin was asked by Mr. Iacobucci to review the SNC-Lavalin file and she did so. She was also approached by officials from the Prime Minister’s Office about giving legal advice to Jody Wilson-Raybould, but she declined. However, Thomas Cromwell was retained as legal counsel for then justice minister Wilson-Raybould to advise her on the limits of solicitor-client privilege.

There is nothing illegal or inappropriate about these retired Supreme Court justices giving legal advice to their respective clients, as they are trained and highly qualified to do. Former politicians, including former prime ministers, leave their public roles to embark on private sector careers and bring their expertise and experiences to these new roles. Retired judges should also be free to practise and enjoy their chosen legal profession.

There is no doubt that a former Supreme Court justice brings an expertise and gravitas to their new legal role that is highly valued by clients such as the Prime Minister’s Office and by private clients such as SNC-Lavalin. This can raise problems of perception about judges being for hire and losing the objectivity and independence that are at the heart of their prior judicial roles.

It can also raise perceptions that judges are being used as players in a political power struggle. The general public may fail to distinguish between retired judges and sitting judges, and regard the retired ones as still representing the court. Like the typecast actor, the retired judge may not be able to escape their former judicial role.

The involvement of the retired justices in the SNC affair may strike us as jarring and non-judicial for three reasons.

First, judges must be independent from the other branches of government, and judicial independence is a cornerstone constitutional principle. Yet the Minister of Justice hired retired justice Mr. Cromwell as her lawyer, and the Prime Minister’s Office attempted to hire retired chief justice Ms. McLachlin. There is no legal problem, but there is a perceived one.

Secondly, sitting judges are not to be engaged in overt political activity. Yet the four retired justices are implicated in the political dispute between SNC-Lavalin, Prime Minister Justin Trudeau and the former justice minister. Judicial ethical guidelines do not apply to retired judges, so there is no ethical or legal issue, but there is a problem of perception.

Lastly, judges are independent adjudicators who decide legal disputes, not partisan advocates like the lawyers appearing before them. That is why judges are considered ideal candidates to chair commissions of pubic inquiry. The retired justices in the SNC affair are partisan advocates, not adjudicators, such as judges or chairs of inquiry.

The impact that these perceived problems can have on trust in the courts is real. Ethical guidelines for retired judges are being developed for next year by the Federation of Law Societies and the Canadian Judicial Council.

Provincial law societies and some courts set a cooling-off period before retired judges can appear in courts. Some similar limits could be applied to other aspects of legal practice. Such policies appear to be needed to ensure that public trust in the integrity, independence and objectivity of our courts is not inadvertently undermined by perceived problems with how retired judges pursue new careers.

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