Tighter restrictions considered for former judges

Currently, the Law Society of Ontario’s Rules of Professional Conduct include “an absolute prohibition against a former judge of the Supreme Court, the Court of Appeal, the Federal Court of Appeal, or the Superior Court of Justice appearing before any court, or in chambers, or before any administrative board or tribunal except in exceptional circumstances and with the approval of the Hearing Division of the Law Society Tribunal.”

But the Rules of Professional Conduct also state that “judges of the Federal Court, the Tax Court of Canada, or the Ontario Court of Justice may not appear before the court on which they were a member, or any lower court, or before any administrative board or tribunal over which the court on which the judge was a member exercised an appellate or review jurisdiction, for a period of three years without the approval of the Hearing Division and only in exceptional circumstances.”

Now, the LSO plans to consult with judges and judicial associations about amendments to this section of the Rules of Professional Conduct, s. 7.7, the report said.

The drafted amendment would prohibit all federally and provincially appointed judges from appearing before any court, in chambers or before any administrative board or tribunal except in exceptional circumstances with the approval of the Hearing Division, a provision that might also extend to include justices of the peace, the report said.

Malcolm Mercer, the law society’s treasurer, says the LSO is still in the “early stages of gathering information” and has not decided on next steps.

The current consultation comes after the law society previously sought feedback on the issue in 2017 — and the feedback was “not supportive.”

In particular, the LSO’s report said, Federal Court of Canada Chief Justice Paul Crampton said it might be “excessive and unfair” to extend the lifetime ban for Federal Court judges to the Superior Court of Justice or one of the lower courts. The report also cited Justice Bruce Pugsley, president of the Association of Ontario Judges, who said the changes were unnecessary, overly broad and “profoundly unfair.”

The Association of Ontario Judges and the Association of Justices of the Peace of Ontario also did not support amending the rules, the LSO report added, noting that “justices of the peace are not the same as judges in terms of salary and pensions,” resulting “in many justices of the peace who retire at age 65 continuing to work for financial reasons.”

Justice Thomas Heeney, who sits on the Ontario Superior Court of Justice and is the vice president of the Canadian Superior Courts Judges Association, says there has been a divergence of opinion on this issue in his association for some time — some judges were of the “firm view” that taking a position on the bench prohibits future appearances as an advocate, while judges sought more flexibility for lawyers who quickly found they would prefer to return to law than pursue a judicial career.

Heeney says that, as a Superior Court judge, he respects the diverging opinions and he doesn’t feel comfortable commenting on the amendment beefing up the rules for other levels of courts.

However, he says, on a personal level, he agrees with restricting court appearances for former Superior Court judges, saying there are “principled reasons” to do so.

“One would forgive 12 lay jurors if they were inclined to give more force to the submissions of a former judge than to the lawyer on the other side,” Heeney says.

To Bob Armstrong, arbitrator at Arbitrator Place in Toronto and former Court of Appeal for Ontario judge, the issue is a simple, straightforward “slam dunk.”

“My view: Retired judges have no place in the courtroom as counsel. In an adversarial proceeding before the justice of the peace, traffic court, Small Claims Court —  whatever, the same principle applies,” Armstrong says.

Marvin Zuker, a former judge of the Ontario Court of Justice, who teaches at the University of Toronto’s Ontario Institute for Studies in Education, says the consent of both the judge and opposing counsel and party should be obtained before a judge could appear as counsel.

“Justice must not only be done but be must seen to be done,” says Zuker. “I think there are a lot issues, not only of bias, unfair advantage but also: What kind of information does the retired judge have that may or may not give his or her client an advantage?”

Ontario is one of several provinces grappling with the proposal, which stems from the Model Code of Professional Conduct developed by the Federation of Law Societies of Canada, scheduled for approval in December. British Columbia and Saskatchewan have indicated to the LSO that there is not support for the proposed amendments, the report said.

Still, the LSO report said the rules should be amended “irrespective of any amendments to the Model Code.”

Some of the 2016 changes to the Rules of Professional Conduct in Ontario came about “at the request of” Associate Chief Justice Frank Marrocco “on behalf of the Superior Court of Justice,” Marrocco’s office says. But Marrocco’s office also adds that it has no comment on the currently proposed amendments.

“For our court, the Superior Court is content with the rule as it is currently drafted,” Marrocco’s office says.

“The current discussion at the Law Society of Ontario relates to a different issue: whether judges of other courts should be similarly restricted. Our court has no comment on this.”

The Ontario Court of Justice, which declined to make a representative available for an interview, told Law Times that it does not support the Federation of Law Societies’ proposed changes, which would prohibit judicial officers who return to practice from communicating with or appearing before any court except in exceptional circumstances with the approval of the law society, regardless of the court on which they served.

Despite the opposition from judges cited in the LSO’s report, the Canadian Judicial Council shared a 2017 letter with Law Times indicating that, overall, there was “a convergence of opinion among the judiciary on most issues” posed by the Federation of Law Societies of Canada.

“In brief, Council agrees that former judges should be able to return to practice, subject to certain restrictions,” Norman Sabourin, the CJC’s executive director and senior general counsel, wrote in a statement. “For instance, former judges should generally not appear as counsel in court. Judges should also not be permitted to negotiate employment opportunities with law firms while they [are] still on the Bench. And former judges should exercise caution in agreeing to any advertising or marketing of their law firm that puts too high an emphasis on their former role.”