Canadians want limits on post-retirement work for judges, survey finds

A majority of Canadians who took part in a survey about the ethical conduct of judges believe that superior court justices should not be allowed to leverage the prestige of their former position for commercial gain after they retire.

As part of its review of Ethical Principles for Judges, the Canadian Judicial Council held public consultations this past spring. It heard from nearly 1,000 individuals and stakeholders on various issues, including the use of social media, dealing with self-represented litigants and judicial education.

On the issue of judges' practice post-retirement, the online survey found: 

• 75 per cent of respondents agreed that after retirement, judges should not use the prestige of their former position to gain any business advantage.
• 71 per cent of respondents agreed that judges should not discuss future job opportunities while serving on the bench.
• 60 per cent of respondents agreed that in general, former judges should not argue a case or appear in court. 

Full results from the public consultations are set to be released soon, while the revised Ethical Principles document for federally appointed judges is expected to be completed some time next year.

The SNC-Lavalin affair shone some light on the post-retirement work of several Supreme Court justices. Four retired judges — Frank Iacobucci, John Major, Beverley McLachlin and Thomas Cromwell — were caught up in the case, one way or another.

Major wrote a legal opinion on the legality of SNC-Lavalin not being granted a remediation agreement and not being given any reasons for the decision. He called it "strange" that people would suggest retired judges should not work as lawyers.

"I think it's inappropriate for judges to appear in court. But I have difficulty seeing anything inappropriate about a former judge writing an opinion," he told CBC. "It's only an opinion. People are free to disagree with it, and a lot of people will. But to say to a retired judge, 'You should be mute' seems to be a little extreme."

Many other Supreme Court  justices are also now working in private practice after retiring or resigning from the bench.

According to information provided by the Supreme Court's executive legal officer, when a judge intends to pursue a legal career after retirement, he or she must abide by rules governed by the law society in their jurisdiction. Individual courts also have rules which may bar a former judge from appearing in court or impose a cooling-off period.

Supreme Court Chief Justice Richard Wagner, who is also chair of the Canadian Judicial Council, is leading the modernization of ethical principles for judges.