With us law is nothing unless close behind it stands a warm, living public opinion. Let that die or grow indifferent, and statutes are waste paper, lacking all executive force.
These are the words of Wendell Phillips, a 19th-century lawyer and abolitionist, from more than 100 years ago. But the spirit of the words remains the same and should be top of mind for the Ontario legal community, after recent changes that will limit retired or dismissed Superior Court of Justice judges who want to return to the court as counsel. As Law Times reports, Convocation made policy amendments that will affect retired or dismissed Superior Court judges who wish to appear as counsel before the court.
Under new rules, Superior Court judges will have to seek approval from a Law Society tribunal to do this.
This move — which might be seen as creating unnecessary barriers to experienced veterans — is commendable nonetheless.
It is telling that Malcolm Mercer, chair of the LSUC’s professional regulation committee, says some judges have been recusing themselves from hearing cases by former Superior Court of Justice judges-turned-practising-lawyers.
“Parties, and particularly self-represented litigants, may feel intimidated or hesitant to voice their concerns to the presiding judge,” says a report to Convocation by the Professional Regulation Committee. Whether any bias actually exists, the fact that current judges have expressed concerns about public perception of judicial neutrality is problematic. Having a former judge represent a client in a Canadian courtroom can raise endless questions about the fairness of a ruling.
The LSUC’s prudent move to have former Superior Court Justices seek approval from a tribunal means an added level of scrutiny about the appearance of impartiality in the court, and reinforces the public perception of the fairness afforded to everyone in the courtroom.