New draft ethics guidelines for judges caution them about post-bench work
It will be up to law societies across Canada to give the new rules teeth
If he could do it all over again, former Supreme Court of Canada justice Ian Binnie says he would not have offered the Harper government a legal opinion that ended up being used in a political controversy over a rejected high court appointment.
That's one reason he welcomes new draft revisions to the Canadian Judicial Council's ethical principles for federally appointed judges, which would govern what work a judge seeks after retirement and how they provide legal advice.
"It was a case where I thought there was a genuine request for an opinion and it turned out what they wanted was a letter that the government could wave around," Binnie told CBC News.
"I think if I'd been approached to produce a letter that the government would use as part of its public relations exercise, I would've refused."
In 2014, the government of then-prime minister Stephen Harper appointed Federal Court of Appeal Justice Marc Nadon to the Supreme Court to take one of three designated seats from Quebec. The government used a legal opinion obtained from Binnie to support the decision.
However, the Supreme Court blocked the Nadon appointment in a six-to-one decision that determined he did not qualify to join the high court.
You can never lose the fact that you are a former judge, particularly a Supreme Court of Canada judge- Ian Binnie, former Supreme Court justice
Since then, Binnie said he's declined a number of job opportunities. In some cases, he said, it was quite obvious that clients wanted to use his opinion because of his title as an ex-high court justice.
"You can never lose the fact that you are a former judge, particularly a Supreme Court of Canada judge," Binnie said.
"That is really part of the baggage you carry around so you have to be careful that it's not misused."
Preventing the misuse of a former justice's status is one goal of revisions to the Canadian Judicial Council's ethical principles, which act as guidelines for judges' professional and personal lives.
Council urges caution
In its review, the council says judges have to respect certain obligations and expectations even after they retire, since they may still be regarded by the general public as representatives of the judiciary.
"It's clearly a matter of concern," said Eugene Meehan, former executive legal officer at the Supreme Court of Canada and a lawyer specializing in Supreme Court of Canada issues at the Ottawa firm Supreme Advocacy.
"On the one hand, it's helpful to have continued access to expertise, experience and bench strength. But on the other hand, there also comes a time when it's time to hang up the hockey skates and close the locker."
In its draft revisions, the council urges ex-judges to exercise caution when accepting jobs and providing legal advice in high-profile or politically contentious matters where clients can make use of a former judge's status to advance their interests.
'Nothing sinister about giving a legal opinion'
The propriety of post-retirement work for justices became a topic of debate during the SNC-Lavalin affair. Four former Supreme Court of Canada justices provided legal advice on the matter, according to a report by Ethics Commissioner Mario Dion.
Frank Iacobucci, who sat on the high court from 1991 to 2004, acted as legal counsel for the Quebec engineering firm. Iacobucci requested an opinion from John Major, who served on the bench from 1992 to 2005, on the legality of the Director of Public Prosecutions refusing to give SNC-Lavalin a deferred prosecution agreement and withholding its reasons for that decision.
"I would do it again," Major said. "There's nothing sinister about giving a legal opinion."
Major now works as a lawyer in Calgary with Bennett Jones LLP. Like all ex-judges, Major is allowed to provide legal advice but cannot appear in court.
"There's a perception that a former judge carries some unusual ability," Major said. "The fact is, I think, that a sitting judge is not going to be particularly interested in what a former judge said."
Major called the judicial council's draft revisions good advice, but said he doesn't think it will have any practical effect.
"They have no discretion on telling a judge who is retired what he can and cannot do," he said. "They go beyond what their legal authority is."
The draft recommendations are advisory in nature. It's up to individual law societies across the country to implement them and give them teeth.
Stakeholders and judges have until Feb. 14, 2020 to provide feedback on the proposed changes. A final version is expected to be released in late 2020.
Legal expert says ex-justices should not return to practice
Amy Salyzyn, a legal professor at the University of Ottawa, said she doesn't think former Supreme Court of Canada justices should practice law under any circumstances.
"There's a real concern that the playing field is not level when judges are practising," Salyzyn said. "The risk is too high."
Judges are living longer and retiring earlier, which has led to more of them returning to private practice.
Forty-one retired judges applied to return to practice in Ontario between the beginning of 2013 and the fall of 2018, according to the province's law society.
The proposed changes come after the judicial council conducted a public survey which saw 71 per cent of respondents agree that judges should not discuss future job opportunities while serving on the bench.
Seventy-five per cent of the 1,000 submissions from Canadians and stakeholders also said that, upon retirement, judges should not use the prestige of their former positions to gain business advantages. Sixty per cent thought former judges should not argue a case or appear in court.
The revisions to the ethical principles for judges are significant for the legal community, as the judicial council only updates them once in a generation. This is the first time the principles have included a substantial section dedicated to post-judicial employment.
Ex-judges are encouraged by the judicial council to act as arbitrators, mediators or commissioners, but they are not allowed to appear as counsel before a court, an administrative body or a dispute resolution proceeding in Canada.
The proposed changes warn retirement planning could undermine a judge's image of impartiality and create the impression of a conflict of interest.
They also say the same concern exists where a judge is "testing the waters" in the private sector, or soliciting opportunities. It recommends that such conversations happen only after a judicial term has ended.
Binnie retired from the bench in 2011 after 14 years on the Supreme Court of Canada. He practices arbitration and mediation at the legal practice Arbitration Place in Toronto, and welcomes the council's recommendations.
"I think if judges in their post-judicial career look like opportunists and try to build a career based on their former role as a judge, it's bad for the judiciary," Binnie said.
"I think most judges recognize red lines when they come across them and respect them."