Justice(s) Out of Office: Principles for Former Judges

Abstract

In the wake of the SNC-Lavalin scandal, a debate has broken out about how to regulate the professional legal conduct of Canadian judges once they retire from office. The entanglement of four former Supreme Court Justices in the violation of the Conflict of Interest Act and the attempted circumvention of prosecutorial independence by Justin Trudeau’s Prime Minister’s Office has led some to argue in favour of a complete prohibition on all professional legal activities by former judges. Others have defended the lack of such restrictions, citing the contribution former judges make to the public interest by practicing law. In this article we argue that these arguments have so far failed to address how the deeper principles of Canadian constitutionalism relate to the question of allowing former judges to practice law. We think the fundamental principles engaged by this question are democracy and the Rule of Law. We argue that together these principles require that former judges be prohibited from practicing in matters of constitutional and administrative law, but allowed to work in all other areas of law not directly implicating decisions they made on the bench. Our policy recommendations are for the provincial and territorial law societies to enact prohibitions on former judges practicing constitutional and administrative law, and for the law societies to establish broad exemptions for former judges to practice other types of law in cases not directly related to cases they adjudicated on the bench.