Retired judges are different from sitting judges. They are not bound by the same principles, such as abstention from political activities and partisan advocacy. This has created a problem and concern about the integrity of the administration of justice in Canada, in that retired Supreme Court judges are now providing legal opinions for sale. This was revealed when Ethics Commissioner Mario Dion investigated Justin Trudeau’s pressure on former Attorney General Jody Wilson-Raybould and found it to be unethical and a breach of trust. The report also revealed disturbing information: that three retired Supreme Court judges, Frank Iacobucci, John Major and Beverley McLachlin, were involved in this political controversy. According to Mr. Dion, Frank Iacobucci, who retired from the court in 2004, was retained as legal counsel for SNC-Lavalin, the Montreal engineering company that lobbied the Trudeau government to defer corruption charges against it. In his position as legal counsel, Iacobucci provided the corporation with a legal opinion that would allow the Attorney General to stop the prosecution of SNC-Lavalin’s corruption charges. Iacobucci also requested that another former Supreme Court colleague, John Major, provide a legal opinion on this matter. Major did so, and his legal opinion happily coincided with that of Iacobucci. Copies of these two legal opinions were then promptly hand delivered to the chief of staff of Finance Minister Bill Morneau and the Prime Minister’s office, as well as to cabinet ministers. Iacobucci next contacted retired Chief Justice Beverley McLachlin to review the SNC-Lavalin file, which she did. She was further approached by officials from the Prime Minister’s office to provide a legal opinion on this case without the knowledge of the Attorney General. It is revealing that the Prime Minister’s office subsequently suggested to the Attorney General “that someone like McLachlin” could help her in getting SNC-Lavalin off the hook. Ms. Wilson-Raybould declined to receive McLachlin’s legal opinion.
In the words of Mr. Dion’s report:
The fact that senior staff in the Prime Minister’s office pressed Ms. Wilson-Raybould on the idea of seeking external advice on the matter – all the while knowing the advice that would be given and selectively withholding other material information from Ms. Wilson-Raybould – was, in my view, a third attempt to bend the will of the Attorney General.
Although there is nothing directly illegal about these retired Supreme Court judges providing legal opinions in a complicated political situation, it nonetheless raises the perception that retired Supreme Court judges are providing legal opinions for sale. In short, it is very questionable that someone whose prestige comes from his/her experience as a Supreme Court judge should be engaged in blatant advocacy for a corporate interest. These judges were in the middle of the pressure on the Attorney General to reverse her decision on the SNC-Lavalin case and, in fact, were paid advocates, who devoted their talents and prestige to advance a corrupt corporation’s interests. In short, the actions of these three retired Supreme Court judges indicate that they were lobbyists for SNC-Lavalin. Their legal opinions were being used as weapons by Justin Trudeau to put further pressure on the Attorney General. Judges are supposed to be independent and objective when deciding legal disputes, not acting as partisan legal advocates. In effect, these three retired Supreme Court judges were using their past, elevated positions for financial gain for a deep-pocketed, ethically challenged client. Less affluent litigants would not be able to afford these legal opinions, which provided SNC-Lavalin with a considerable advantage in the dispute.
To be appointed a judge is to be at the pinnacle of one’s legal career. Supreme Court judges are very well-paid. A chief justice receives an annual salary of $424, 200 and the remaining eight judges on the court receive an annual salary of $392, 700. Upon retirement, at age 75, these judges are entitled to a pension equivalent to two-thirds of their salary. This should provide them, unlike most Canadians, with a very comfortable retirement.
Retired judges who go back to legal practice in any form are simply abusing the office by providing a “name,” for financial return, for an affluent client or law firm. This is unacceptable.