SNC-Lavalin affair raises the issue of the role of former judges

The SNC-Lavalin scandal has proven to be an insatiable beast with tentacles reaching deep into the political and legal worlds — perhaps even as far as the Supreme Court of Canada.

Politically, the allegations of interference with the justice system have deeply damaged the “sunny ways” Liberal brand and catapulted the Conservative Party ahead of Prime Minister Justin Trudeau in pre-election opinion polls. And, as most scandals do, the SNC affair has led to a series of high-profile resignations. Former minister of justice and attorney general Jody Wilson-Raybould may have been the first out the door, but her departure was quickly followed by the principal secretary to the prime minister, Gerald Butts, the president of the Treasury Board, Jane Philpott, and, most recently, the clerk of the Privy Council, Michael Wernick.

The government, in its scramble to defuse the political crises, launched a half-hearted study into the allegations before the Liberal-controlled justice committee appointed Anne McLellan to advise the PMO on the role of justice minister and attorney general in cabinet.

But none of this, rightly so given that the rule of law is at stake, has quieted the continuing questions about Trudeau’s integrity and his leadership.

And now there seems to be a rising grumbling that the legal profession should consider what activities former judges can be permitted to engage in after retirement.

After all, the short history of the SNC scandal does reveal a who’s who of the legal profession.

Former Supreme Court of Canada judge Frank Iacobucci, who is now senior counsel at the law firm Torys, was actively involved in SNC-Lavalin’s defence — even signing his name to a letter to the Public Prosecution Service advocating for a deferred persecution agreement. 

Wilson-Raybould hired former Supreme Court justice Thomas Cromwell to provide her with legal advice about the scope and application of solicitor-client privilege.

Even the PMO got into the former judge game by floating the idea of retaining former Supreme Court Chief justice Beverley McLachlin to provide a legal opinion on deferred prosecution agreements.

The re-examination of permissible post-judicial activities may all just be a convenient distraction for those who wish to turn the channel away from the actions of the prime minister and his office. But there may be some merit considering what activities judges should be permitted to engage in during their golden years.

Should judges go gently into the good night of retirement? Or should they rage, rage against the dying of the light?

Should former judges have been involved in the SNC case at all?

Well, there are rules about what activities a retired judge can undertake after returning to practice.

In Ontario, a lawyer who was formerly a judge of the Supreme Court of Canada, the Court of Appeal for Ontario, the Federal Court of Appeal or the Superior Court of Justice is barred from advocating in any court or before any administrative board or tribunal absent special permission that can only be granted in exceptional circumstances. Former judges of the Ontario Court of Justice are unable to appear before a court for a period of three years from the date of their retirement.

The Federation of Law Societies has also released a discussion paper on post-judicial returns to legal practice.

But none of the rules — proposed or on the books — would have applied in the SNC case. And that may actually be a good thing.

Prohibiting retired judges from practising law carries hidden costs. Restrictions may limit the pool of qualified lawyers who would want to apply for judicial appointment — many potential applicants won’t want to view the bench as the end of their career. Limiting post-retirement work may indeed encourage judges to serve until mandatory retirement, which risks ossifying our courts and discouraging younger applicants. And limitations on post-retirement work ignores the fact that judges, even after retirement, can make valuable contributions to society through continued legal work. Rules that limit judicial practice could have the effect of discouraging the insight and expertise retired judges can bring to pro bono work and public policy development.

Some have suggested that former judges should not be involved in any litigation that may end up before the Supreme Court or cases that may become political. But it is impossible to determine to which cases that limit would apply until it actually happens.

It seems that the solution to the perceived problem of post-judicial activities may create more problems than it solves.

Sure, there is always a risk that the public may perceive that the involvement of a retired judge in a particular case renders the legal system unfair. This is a valid concern and perhaps there needs to be public education about the current rules of professional conduct. But, in reality, judges are very comfortable disagreeing with each other and being disagreed with. Indeed, the PPSC did not seem to be swayed by anything Iacobucci said on the SNC case — the fact he was a former Supreme Court justice did not seem to move the needle at all.

The real problem may actually be with those in politics who seek to use retired judges as a political weapon.

Former prime minister Stephen Harper did it when he released former Supreme Court judge Ian Binnie’s opinion on the Marc Nadon case — a case that the government clearly knew was going to be controversial.

Iacobucci may have unsuccessfully advocated on SNC’s behalf, but it was the clerk of the privy council, as part of the PMO attempts to influence Wilson-Raybould’s decision, who wielded the name as a weapon, telling her that: “Iacobucci is not a shrinking violet."

And it was the PMO who was quite keen on the idea of “retaining an ex Supreme Court of Canada judge” to provide “cover in the business community and the legal community.”

So, while examining the scope of work retired judges should be permitted to engage in is not a bad idea, a better idea would be to insist on better and more ethical behaviour from our politicians.

Perhaps, it is those who were trying to influence the course of justice from inside the prime minister’s office and not the former judges who should go quietly into the night.