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Harder for retired judges to return to court

|Written By Neil Etienne

Retired Superior Court of Justice judges who want to return to court as counsel will now have to get permission from a Law Society of Upper Canada tribunal.

Lee Akazaki says judges should not recuse themselves only because a former judge is due to appear before them because it lacks a principled reason. Photo: Robin Kuniski

The move is a bid to ensure the perception of fairness in the courtroom.

Convocation made the policy amendments during its most recent meeting Jan. 28, including tweaks to the wording and judicial categories in the Law Society of Upper Canada’s Rules of Professional Conduct.

Before, former judges of the Superior Court of Justice could appear before the court as counsel after a three-year “cooling-off” period.

Malcolm Mercer, chairman of the LSUC’s professional regulation committee, said Associate Chief Justice Frank Marrocco first broached concerns of public perception and access to justice on behalf of the senior executive of the Superior Court of Justice.

He said former judges appearing as lawyers before their one-time peers of the bench has led to situations where the sitting judge will recuse himself or herself from a matter, slowing the wheels of justice.

“Some judges have been recusing themselves, and we understand judges have given an indication that they intend to recuse themselves in the future,” said Mercer.

“There is a concern about newer judges who hear submissions made to them by judges who sat before they were on the bench themselves, and that has given rise to certain discomfort,” said Mercer.

“The fact that there have been and are likely to be more recusals is likely to cause acute inconvenience and delay in the administration of justice,” Mercer added.

 It also created fears that the court might not be impartial with a former judge acting as counsel or an advocate.

Mercer explained there are two categories that apply to retired judges who wish to return to practice.

The first category covers former judges of the Supreme Court of Canada, the Court of Appeal for Ontario, and the Federal Court of Appeal. There is no cooling-off period for these judges. They have to obtain approval from the panel before appearing as counsel.

The second category covers former judges who sat in Federal Court, Tax Court of Canada, and the Ontario Court of Justice, and the Superior Court of Justice. In this category, there is a three-year cooling-off period.

During the cooling-off period, permission from the tribunal is required to appear as counsel.

After the cooling-off period is finished, permission isn’t required. 

The new rules place the Superior Court of Justice judges in the first category.

Although supporting the changes, LSUC bencher Rocco Galati says the policy amendments don’t quite go far enough.

“For my liking, I think we should remove the right to apply [for reinstatement] as well,” he says. 

A specialist in civil litigation, former Ontario Bar Association president and partner with Gilbertson Davis LLP, Lee Akazaki, takes a different view. He says there is a high level of expertise that will be denied those who might choose to hire a former judge to represent them. He says judges should not recuse themselves only because a former judge is due to appear before them, because it lacks a principled reason.

“The right to choose counsel is a fundamental right within Canadian society; that right cannot be trampled on without a principled reason that goes to the administration of justice,” he says.

“There’s this belief that counsel appearing against a retired judge would feel intimidated or reluctant; as far as I’m concerned, you have to treat any opposing counsel with the same due respect as you would a Superior Court judge and you should treat opposing counsel with the same amount of objectivity.”

Akazaki says a better way to deal with the emerging concerns would be to establish a clear set of rules to establish if there is a conflict of interest for the former judge to appear on any given case as a lawyer.

“The gut reaction is not always the correct one; these people lived and worked and breathed law all their lives and it’s very difficult to say to them ‘you can’t have anything to do with the law anymore apart from coming to the cocktail parties,’” he says.

“They have a lot to contribute, they have the expertise in the law, they are not going to be more of a risk to clients, and they’re not going to be a risk to the public.”

The amendments made during Convocation only addressed swinging the Superior Court of Justice into the first category and the wording amendments to the application process.

Mercer said the LSUC’s professional regulation committee will be making inquiries of the Ontario Court of Justice and Federal Court for commentary if they also wish to see similar policy changes.

Ian Binnie, who served 14 years as a justice of the Supreme Court of Canada and is now counsel at Lenczner Slaght, says there are few, if any, circumstances where a former judge should appear as a lawyer in a Canadian court.

He said he was pleased to see the LSUC policy change for the Superior Court of Justice to remove a three-year cooling-off period and hopes other courts follow suit shortly.

“It’s a situation that shouldn’t exist,” he says.

“You always have to consider in these cases the position of the losing party; are they going to go away from court thinking they got a raw deal because the other side had a former judge? Even if that’s not the reality, that will be the perception and I don’t think the courts want to give that impression.”

He said beyond the Superior Court of Justice, the tax court should be wary.

“If a former tax court judge showed up to argue on behalf of the taxpayer against the government, it simply would look as if the process was skewed,” Binnie says.

“There’s a sensitivity attaching to anybody who has sat on the bench as a judge; the situation is a bit different with some of the tribunals.”

Binnie says for boards and tribunals, appointments tend to be short-term and sometimes are not renewable and should not have further hindrances on returning to practice.

“Subjecting board members to the same rules as judges could have a very bad effect on recruitment; overly strict rules would prevent a 45-year-old board member who is not renewed from going back to their profession,” he adds.

  • Why the gut reaction is incorrect

    Lee Akazaki
    It was Mr. Binnie who provided PM Harper the opinion regarding the nomination of Marc Nadon, knowing it would be used to support the nomination. The court hearing the Nadon reference took no notice of Mr. Binnie's opinion and ruled against the PM.

    Other 'authoritative' counsel appear before courts all the time. In R. v. Sharpe, Jim Flaherty donned his gown as Attorney General of Ontario. Other AG's return to private practice and are able to appear before judges they appointed and make submissions on statutes they legislated while in office.

    The operative principle of Canadian justice is that courts render judgments, not judges. Under s. 99 of our Constitution, judges are office holders and are not to be equated with the court. Judges are bound to apply the law in cases appearing before them, even though they may hold a contrary personal view. The Law Society has fed a popular conflation of the office holder with the office. Conflict of interest is the real issue.
  • Justice must be seen to be done

    Bill Johnson
    Ian Binnie has clearly said all that needs to be said and understood on this issue. Appearances in court of former judges destroys the appearance of fairness in the hearing itself. That is the principled reason to disallow it. A decision of a tribunal of the Law Society cannot make something fair that is inherently unfair.
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