National Post (National Edition)
SNC report puts focus on retired justices
OTTAWA • Ethics Commissioner Mario Dion’s report on the SNC-Lavalin affair didn’t just shed light on how political staff operated behind the scenes. It also revealed the involvement of former Supreme Court of Canada justices in the explosive political dispute.
Two retired judges, Frank Iacobucci and John Major, wrote legal opinions for SNC-Lavalin that the Montreal company used in its legal battle with the federal prosecution service, which had decided to force the company to stand trial on fraud and bribery charges instead of negotiating a deferred prosecution.
Former chief justice Beverley McLachlin, meanwhile, had been approached by both SNC-Lavalin and the Prime Minister’s Office about providing then Attorney General Jody Wilson-Raybould with advice. The company and PMO staffers also considered having McLachlin oversee some kind of settlement discussion with prosecutors. This was all done without the knowledge of Wilson-Raybould, who backed the top prosecutor’s decision.
It is not clear exactly how open McLachlin was to the request; the report says she expressed reservations at one point. McLachlin did not immediately respond to a request for comment.
A fourth former Supreme Court justice, Thomas Cromwell, was retained by Wilson-Raybould after she resigned from cabinet, though his role is not mentioned in the report.
The revelations have once again raised the issue of whether judges — especially from Canada’s top court — should be subject to stricter rules or at least guidelines on what activities they can engage in after retiring from the bench.
“The involvement of, and attempt to involve, former SCC justices to apply further pressure on (Jody Wilson-Raybould) is — as others have noted — a whole other concern here,” wrote University of Waterloo professor Emmett Macfarlane, who has written extensively about the SCC, on Thursday. “Time for a broader discussion about what former judges involve themselves in this country.”
University of Ottawa law professor Amy Salyzyn pointed to an article she wrote earlier this year that concludes law societies “should change their rules to prohibit retired SCC judges from practising law in any circumstances.”
“In the case of retired SCC judges in particular, it seems impossible to escape the concerns about former title commodification,” Salyzyn wrote. “Retiring from the bench doesn’t remove a judge from the stature and the power of the judicial position. And this stature and power will always be appealing to clients. It shouldn’t be for sale.”
Richard Devlin, a Dalhousie University law professor, said in an email that in general, “we absolutely need much stronger rules about what judges can do after they retire, as the activities of some, but not all, retired judges are undermining public confidence in the fairness of the legal system.”
Dion’s report makes clear that SNC-Lavalin used the former SCC justices to further its exhaustive lobbying for a deferred prosecution.
The firm retained Iacobucci to write one legal opinion that “outlined the legitimacy for (Attorney General Jody Wilson-Raybould) to intervene in criminal matters seized by the Prosecution Service,” the report said. That legal opinion was sent to Treasury Board president Scott Brison, who then shared it with other cabinet ministers. “We are also considering other ways to make it easier for the minister to engage and reverse the (director of public prosecutions’) decision,” said the email from SNC-Lavalin lawyer Rob Prichard to Brison on Nov. 2, 2018, passing on the legal opinion.
Around the same time, Iacobucci retained Major to write another legal opinion — this time on “whether the failure of the director of public prosecutions to provide reasons for her refusal to invite SNC-Lavalin was unlawful and whether the refusal itself was unlawful.”
The second legal opinion was hand-delivered by SNC-Lavalin to Finance Minister Bill Morneau’s chief of staff and to senior advisers in the Prime Minister’s Office, the report says. (The report does not divulge the details of Major’s opinion. As it turned out, the Federal Court rejected SNC-Lavalin’s attempt to overturn the prosecution service’s decision; SNC-Lavalin is appealing.)
The Canadian Judicial Council and the Federation of Law Societies have been in lengthy discussions on the issue of post-judicial employment, particularly around judges going back into legal practice. They plan to release revised guidelines next year.
“The question of post-judicial employment is complex and involves many considerations,” said the judicial council in a statement. “Judges, like all of us, are experiencing a greater life expectancy and quality of life. Some are retiring early. This means that many former judges want to continue to contribute to society in a meaningful way.”
Each province and territory’s law society already has certain restrictions on judges returning to practise law, particularly aimed at situations where judges might appear as counsel in a courtroom they used to preside over. The Federation of Law Societies said it has held “extensive consultations” on its Model Code of Professional Conduct, including possible amendments to “impose additional restrictions and obligations on retired judges who return to the practice of law.”