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Ex-SCC judge who co-wrote Dunsmuir weighs in as counsel as top court revisits Dunsmuir’s standard of review

Wednesday, December 05, 2018 @ 11:38 AM | By Cristin Schmitz

Last Updated: Wednesday, December 05, 2018 @ 5:22 PM

Ex-Supreme Court of Canada Justice Michel Bastarache’s participation as a counsel in three appeals the top court is using to revisit one of his most famous judgments, Dunsmuir v. New Brunswick, has renewed debate about what ex-judges can do when they return to legal practice.

Bastarache, who retired 10 years ago at age 61 and returned to legal practice (soon after co-writing Dunsmuir, 2008 SCC 9) is believed to be the first ex-Supreme Court judge in decades to participate as a counsel of record, and make submissions, at his former court after his departure.

In the standard of review trilogy being argued at the Supreme Court from Dec. 4-6, Bastarache of Ottawa’s Caza Saikaley is listed with the court as counsel for the intervener Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC), along with Alyssa Tomkins and James Plotkin of the same firm. He is also listed as co-counsel on CPPIC’s written submission filed with the top court — albeit his name is followed by “of counsel” on the factum’s last page. His name does not appear on the factum’s front page.

Michel Bastarache

Retired Justice Michel Bastarache, Caza Saikaley

Bastarache, who co-authored the Dunsmuir majority judgment with now-retired Justice Louis LeBel, told The Lawyer’s Daily he is not taking part in the oral argument before the court, nor is he sitting at the counsel table, in the trilogy the court has announced it will use to revisit Dunsmuir’s much-debated standard of review framework.

“I am not appearing as counsel before the court, and have never done so since my retirement,” Bastarache said. “I am conforming to law society rules of conduct. I was informed years ago that the rule applies to appearances, and not to participation in the preparation of briefs. In fact, if I could not opine at all on issues to be dealt with by a court I could not be very effective as counsel for a firm.”

Bastarache, who is called to the bars of Ontario, New Brunswick, Alberta, Quebec and British Columbia, added, “I think it is appropriate to give my opinion on the development of the law in an area of interest to me. I have no information on the thinking of judges on the court, have not spoken to any of them about cases to be heard, and am not revealing anything that may have been discussed 10 years ago; I am in the same situation as any other member of the bar in that respect.”

However, his weighing in as counsel, albeit not in oral argument, has raised some eyebrows within the legal community.

According to one retired superior court judge, who now confines his professional activities to alternative dispute resolution, “in every lecture you either give, or hear, about advocacy, the audience is told that written advocacy is more important than oral advocacy. So he is effectively appearing as an advocate in his own court from which he has retired and I believe that is problematic.”

The ex-judge, who did not wish to be named, noted the Supreme Court’s judges have read his factum. “So in effect he is advocating before them,” he opined. “The fact that he is not standing on his feet is of no moment.”

Bastarache’s role in the trilogy also elicited comment on Twitter.

“I am curious to know if any @SCC_eng buffs are aware if a former judge has ever been counsel in a case revisiting his own reasons,” tweeted lawyer Kate Robertson. “That seems … awkward,” commented lawyer Robert Danay. Bastarache’s co-counsel Tomkins quickly responded “he is noted very clearly [on the factum] as being Of Counsel. This was specifically done to communicate that he would not be appearing.”

Still the situation has cast the spotlight again on the debate about what kind of professional conduct rules should apply to former judges who return to legal practice.

Bastarache is not the only ex-Supreme Court judge to have made submissions in his former court. In 1972, Charles Locke, who retired from the Supreme Court a decade earlier, orally argued as lead counsel (and won) a famous commercial law case before five judges — three of whom were ex-colleagues on the court — a situation that also raised eyebrows, according to some spectators: Canadian Aero Service Ltd. v. O’Malley [1974] S.C.R. 592.

Since then the number of ex-judges, including from the Supreme Court, who take on lucrative counsel roles at large law firms has been growing each year, despite their annuities of $255,200 for a Supreme Court puisne judge who retires today, and $214,400 for other puisne federal judges. (Interestingly, it seems that most of the Supreme Court's female former judges, including ex-Chief Justice Beverley McLachlin, have not taken on counsel roles with firms, while most of the top court's male alumni have.)

Robert Danay

Robert Danay, Shapray Cramer

Danay, a lawyer with Vancouver’s Shapray Cramer who recently addressed the subject of judges returning to legal practice in the podcast Stereo Decisis, sees ethical and procedural fairness challenges “whenever former judges, but especially Supreme Court justices, act as litigation counsel.”

“For example, there is the spectre that doing so might give the party that they represent an unfair advantage and thereby undermine the public’s confidence in the fairness of the proceedings,” he explained. “This is presumably because of a perception, whether accurate or not, that a judge hearing a case would be unduly predisposed to accepting the submissions of a former judge than lawyers that do not have such a background. There is also the theoretical potential that a former appellate judge might be able to unfairly exploit inside knowledge about, for example, the court’s internal deliberations, including any ‘horse trading’ among the justices that led to the final product of the court’s final reasons.”

Danay noted that in the situation involving Bastarache, the prospect that the former judge might unfairly exploit some inside knowledge is “greatly decreased” by the fact that Justice Rosalie Abella is the only judge left at the Supreme Court who sat on Dunsmuir. “And the fact that he has only added his name as counsel to written submissions might also diminish any appearance of impropriety,” he suggested.

“On the other hand, there is something at least arguably unseemly about a former justice appearing as counsel in a case in which the court is expressly reconsidering a landmark decision that he co-authored,” Danay opined. “That is, there is at least the potential appearance of the justice acting in defence of his own intellectual work product rather than, say, the interests of his client.”

However, Danay said he sees no evidence “that this is so in the specific case of Bastarache’s appearance in the Vavilov trilogy.”

(Indeed another administrative law lawyer told The Lawyer’s Daily CIPPIC’s factum arguably reads more like a repudiation of Dunsmuir, than a defence, given that it offers a definition of jurisdiction that is broader than the one set forth in Dunsmuir).

Stephen Pitel

Stephen Pitel, Western University law professor

Western University law professor Stephen Pitel, an expert on the ethics of former judges’ return to law practice, noted that the rules of professional conduct applicable to former judges are in flux. The Federation of Law Societies of Canada (FLSC) conducted a public consultation on the issue in 2017, but its member legal regulators are still wrestling with how restrictive the final model rule should be. Many provinces — such as Manitoba where former Manitoba Court of Appeal Justice Charles Huband has litigated and advocated before ex-colleagues in his former court — simply impose a three-year “cooling-off” period.

The FLSC’s current model rule also imposes a three-year cooling-off period on an ex-judge appearing before his or her former court, or before any courts of inferior jurisdiction to that court, or before any administrative boards or tribunals over which the ex-judge’s court exercised an appellate or judicial review jurisdiction in any province in which the judge exercised judicial functions.

By contrast, Ontario’s rules of professional conduct are the most restrictive in the country. They permanently prohibit ex-Supreme Court judges and former Ontario appellate and superior court and Federal Court of Appeal judges from “appearing” as counsel or advocates in any court.

Rule 7.7-1.2 stipulates that such former judges who practise law in that province “shall not appear as counsel or advocate in any court, or in chambers, or before any administrative board or tribunal without the express approval of a panel of the Hearing Division of the Law Society Tribunal. This approval may only be granted in exceptional circumstances and may be restricted as the panel sees fit.”

In Pitel’s view, the ban on former judges “appearing” as counsel or advocate in any court includes written submissions. “My view is that signing a factum constitutes an appearance,” he explained. “I don’t see any meaningful distinction between written advocacy and oral advocacy.”

Moreover, “part of the problem here is an optics problem, so having your name associated with the litigation, that’s part of precisely why these preclusions in my view, should exist,” he said. “I’m in favour of the rule that Ontario has developed, and that the federation is looking at for the Model Code.”

In its submission last year to the FLSC on former judges returning to practice, the Canadian Judicial Council (CJC) also endorsed a lifetime ban on ex-judges appearing in court.

“A former judge should not appear in court, unless there are exceptional circumstances that do not affect the reputation of the judiciary and the courts. A former judge should stay out of the role of advocate,” the CJC stated.

The disciplinary body for federal judges argued that ex-judges can act as arbitrators, mediators or commissioners “but should not appear as counsel in court or in any quasi-judicial or dispute resolution proceedings.”

The CJC defined the parameters of an “appearance” in court as “broader than physical appearance.”

A former judge may review, draft arguments [and] pleadings, and provide advice to members of a legal firm on strategy and the like,” said the CJC’s submission signed by Quebec Superior Court Senior Associate Chief Justice Robert Pidgeon, chair of the council’s judicial independence and appointment process committee.

“The former judge should not sign court documents or legal opinions that are, or may be, the subject of court proceedings,” the CJC urged. “Legal documents upon which the former judge has input are the final responsibility of the directing legal counsel.”

The council recommended that apart from not appearing in court, and preserving the confidentiality of debates and discussions of their former court, former judges “should be otherwise free to comment on decisions, to advise their clients, and to make public statements, like any other lawyer governed by the relevant Law Society ethical constraints and rules.”

Bastarache told The Lawyer’s Daily: “I believe I am conforming to the Ontario rules as interpreted in the past. If the law society has new guidelines or a new interpretation, I have not been advised of them. As for the Federation of Law Societies, it has not yet published guidelines.”

He noted such “guidelines have to be implemented by law societies to take effect. As for the Canadian Judicial Council, I was not aware of its opinion. I was never informed it had been consulted. I respect its point of view but it has no authority over retired judges. If the provincial/territorial law societies agree with the judicial council they will amend their rules and inform retired judges. Agreement with that interpretation is not obvious.”

Bastarache added, “I cannot be held responsible for what I was never informed of or asked to observe. Indeed, I never questioned any rules or even recommendations regarding the conduct of retired judges and will happily abide by what is asked of me by the proper authorities.”

He also noted that he is not leading counsel in the trilogy, “which means even the opinion of the Council is not a problem.”

Gavin Mackenzie

Gavin MacKenzie, MacKenzie Barristers

Gavin MacKenzie of Toronto’s MacKenzie Barristers, an expert on professional conduct, said it would be “desirable that the Federation [of Law Societies] amend its Model Code, and that law societies amend their Rules of Professional Conduct, to remove any possible ambiguity in the present rule, and to address the question whether by presenting written submissions to the court a retired judge is ‘appearing as counsel or advocate’ in court.”

MacKenzie explained that the concern is not that a court will be improperly influenced by submissions from a former justice.” It won’t be; it will decide the case based on the arguments of all counsel,” he remarked.

But, he added, “I can appreciate the argument that the policy underlying the rule — the appearance, to lay parties adverse to the retired judge’s client, of possible improper influence — would apply equally to written and oral submissions.”

Eugene Meehan of Ottawa’s Supreme Advocacy, a former Supreme Court executive legal officer and leading Supreme Court agent, said that, in his view, retired judges being involved in reviewing, revising, or advising on leaves to appeals, or appeals “is highly problematic for client outcomes.”

“Even if they are not specifically shown as ‘counsel,’ word gets around,” Meehan remarked. He queried, “how is the court to demonstrably show its judges are uninfluenceable” by a former judicial colleague?

“As a profession we’ve decided there are serious concerns about how former judges appearing as counsel may impact both the administration of justice and the public’s perception of the courts,” he added. “A former judge being listed as third counsel for a public interest intervener is less concerning than a former judge appearing as lead counsel for one of the main parties. It may raise one eyebrow, not two eyebrows. [But] that type of attention is what the Federation of Law Societies is likely seeking to avoid.”

In light of the respected former judge’s major role in Dunsmuir, “It’s like Moses from the Old Testament showing up in the New Testament — or showing up today, to revise the Ten Commandments,” Meehan suggested. “Is he now going to tell us there’s 12, no there’s eight, or still 10, and here’s why? … Is it helpful to hear Moses’ current thoughts, or better he go back up the mountain to meditate? Tough call.”

Eugene Meehan

Eugene Meehan, Supreme Advocacy

Based on their conclusion that “the administration of justice is negatively affected by the appearance of a former judge as counsel in a Canadian court,” members of the FLSC’s Standing Committee on Professional Conduct proposed a rule in January 2017 that would bar all former judges from appearing before, or communicating with, any court — subject to the right to apply to the legal regulator based on exceptional circumstances.

The committee saw “no ethical purpose” to merely imposing a cooling-off period. Beyond that, former judges who have returned to practice must otherwise be free, “like any other lawyer governed by relevant ethical constraints in the Model Code, to comment on decisions, to advise their clients and to make public statements,” and should be “free to provide behind the scenes help such as providing advice to, and mentoring other lawyers and practitioners.”

The FLSC’s committee added that it “did not agree with the suggestion that a former judge should be prohibited from ‘ghost writing’ submissions etc.” — concluding that the proposed limits on court appearance would be sufficient to address concerns about the impact on the administration of justice.

The proposed FLSC Model Rule, which has yet to be placed before the FLSC for approval, states that “a judge who returns to practice after retiring, resigning or being removed from office must not communicate with or appear as a lawyer before any Canadian court or tribunal.”

Its commentary further states that “former judges who return to practice should avoid any perception that they are advocating or appearing before a court or tribunal. A former judge should not be seen to be actively involved on behalf of a client in a matter before a court or tribunal, for example by sitting at counsel table or signing materials submitted to the court or tribunal. … This rule is not meant to interfere with the lawyer-client relationship but a former judge must be wary if the public may perceive them to be advocating before a court or tribunal.”

The FLSC began working on the controversial issue in 2011 after 25 professors of legal ethics from 11 law schools across the country wrote a letter calling on the national umbrella group for legal regulators, as well as the Canadian Bar Association, and the CJC, to devise formal guidelines to govern and/or guide the professional conduct of all jurists as they leave — and after they leave — the bench.

The ethics scholars’ concerns related not only to judges returning to legal practice, but also to ex-judges entering partisan politics — the pursuit of which may affect the public’s perception of their former offices or the justice system.

“We believe that such guidelines are necessary to ensure public confidence in the independence of the judiciary and the impartiality of adjudication, which are the cornerstones of the rule of law in Canada,” the law professors explained.

An example raised at the time was the public criticism aimed at former B.C. Court of Appeal Justice Wallace Oppal in 2005, when he announced right after he resigned from the Court of Appeal that he was running for the governing provincial Liberals — which timing suggested that he had had discussions with the Liberal Party while still sitting on the bench.

There were also questions raised in 2011 when a legal opinion the CBA commissioned from Bastarache emerged in public.

The CBA was pressing the FLSC at the time for a less strict rule on “current client” conflicts of interest than what was endorsed by an FLSC sub-committee. The CBA hired Bastarache to critically evaluate the legal opinion of an ethics expert hired by the federation, including that expert’s interpretation of the governing Supreme Court jurisprudence.

Bastarache had sat on two of the three leading cases on lawyer conflicts: R. v. Neil [2002] S.C.J. No. 72 and (as part of the minority) in Strother v. 3464920 Canada Inc. [2007] SCC 24.

Correction: This story has been updated to reflect that Louise Arbour, who left the Supreme Court in 2004, joined Borden Ladner Gervais in 2014 as a jurist in residence.

With files from Matthew Grace.