OTTAWA—The jury’s out on the judges.
As Justin Trudeau again refused to apologize Thursday after ethics commissioner Mario Dion found the prime minister violated the conflict of interest law by attempting to interfere in the criminal prosecution of SNC-Lavalin, some critics turned their attention to the role played in the affair by three former Supreme Court of Canada judges.
Dion’s damning report put the blame squarely on Prime Minister Justin Trudeau’s shoulders for pressuring his former attorney general Jody Wilson-Raybould to cut a deal to allow the Quebec engineering firm to escape criminal conviction.
But the report released Wednesday also shone a harsh light on the conduct of retired justices Frank Iacobucci and John Major and former chief justice Beverley McLachlin, who got involved to differing extents at the company’s behest.
And it has prompted new calls for tougher guidelines for former judges.
Mary-Ellen Turpel-Lafond, a former Saskatchewan provincial court judge who now practises and teaches law, said there is “probably a need to have some kind of an arm’s-length vetting process,” perhaps involving an executive officer of the Supreme Court, to ensure requests made of former judges are “consistent with the public office” of the country’s top court.
The judges weren’t the main focus of the report, she said, but their actions raise concerns for public confidence in the administration of justice.
“They are minor players in this case, but, at the same time, unfortunately, it has left something of a stain on that institution that they could sort of take a step out the door and so quickly be in a role of advocacy.”
Major, who authored a legal opinion for SNC-Lavalin that said the public prosecutor was wrong to refuse to offer reasons for refusing a mediated settlement with SNC-Lavalin, disagreed.
He said the company was, as a result of changes the Trudeau government introduced, entitled to apply for a deferred prosecution under the Criminal Code.
In an interview, he said ethical lines were crossed, not by the former judges who offered legal advice on a new area of law, but by a government that was “incompetent” and mishandled the whole affair, especially by pressuring an attorney general to change her mind.
Major told the Star more rules for retired judges aren’t necessary. “The whole mess is not from the legal opinions or the legal case; it’s the way the government handled it. Can you imagine it to be more high-handed than the clerk calling the minister of justice?”
A phone call between former clerk of the Privy Council Michael Wernick and Wilson-Raybould was heavily scrutinized in the wake of Wilson-Raybould’s resignation from cabinet.
Major said retired judges’ opinions hold no more weight than another lawyer’s despite what clients, and the public, might think, and says clients and governments ought to be able to freely call upon retired judges for their views.
“When you think about it, you want ministers, if they’re uncertain, to verify by getting an opinion that says ‘yes’ or ‘no,’ because it serves the country. We want, to the extent possible, that the ministers act correctly, act properly. So I think it’s a good thing that they get outside advice when they’re on uncertain ground.”
However, Turpel-Lafond said the whole affair shows how tight the top-flight legal-political circles in Canada are, and illustrates that more caution is needed. Their names on a file can be used to “give cover for dodgy positions,” she said.
She says it’s a matter of “fairness” for all litigants; former judges can have “have their reputation or their character used or … weaponized for the deep-pocketed client,” when other, less influential litigants don’t have the same access to the halls of power, or the Prime Minister’s Office.
“Every meeting should be logged. Every person should get a meeting if they need a meeting and you don’t have to be in the Laurier Club. This is like the super-Laurier Club,” she said.
The Dion report outlined new information about how Iacobucci, who retired from the top court in 2004 and is a marquee counsel at SNC-Lavalin’s blue-chip law firm, Torys, aggressively pursued SNC-Lavalin’s interests. He was involved from the outset in helping the company make its pitch to the Trudeau government.
A former deputy justice minister, Iacobucci has often been hired by federal and provincial governments of different political stripes to lead inquiries or provide advice. He is also a senior adviser to Trudeau on engaging Indigenous communities on the Trans Mountain pipeline expansion project.
Dion said Iacobucci wrote a legal opinion for SNC-Lavalin that was shared with government ministers and PMO officials, but not with Wilson-Raybould, that “outlined the legitimacy” for the attorney general to “intervene in criminal matters seized by the Prosecution Service.”
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Iacobucci then enlisted Major, his former colleague, to write a separate legal opinion, and he and Torys LLP chairman Rob Prichard proposed to bring in former McLachlin to mediate between the company and the prosecution service.
Dion said Iacobucci provided the company file to McLachlin, who the report said had reservations about being hired by the government, but agreed she would speak with the attorney general.
Lawyer Elder Marques, a PMO official deeply involved in the discussions, once clerked for McLachlin and was also tasked to reach out to McLachlin to get involved.
The Dion report shows a cosy relationship between the PMO and SNC-Lavalin — it existed without Wilson-Raybould’s knowledge — as they worked to persuade her to engage “someone like” McLachlin without disclosing the fact that discussions had already taken place.
Michael Spratt, an Ottawa defence lawyer whose partner is an NDP candidate and daughter of retired Supreme Court justice Louise Arbour, agrees there is a need for new ethical guidelines.
Spratt said Iacobucci appeared, not only to be advocating SNC’s case, but also to be “using credentials to craft government policy on their behalf, and (to) interpret new laws.”
He said the risk to the reputation and credibility of the high court is real when former judges are so involved in controversial matters.
“I think there’s a real risk especially in hyperpolarized political times (with) that level of involvement, whether it is drafted by the government, which I think is the worst, or whether it is plied through a private relationship and private law firms. I think that involvement, especially of Supreme Court of Canada judges, has a real risk of undermining public confidence in the Supreme Court.”
New rules may be on the way, although there is no clear indication from the Canadian Judicial Council what its timeline might be.
Renée Theriault, executive legal officer for Richard Wagner, the chief justice of Canada who heads the Canadian Judicial Council, says the council is considering how to modernize ethical guidelines for judges, in light of the fact that judges are retiring early and still want to “contribute to society in a meaningful way.”
The council and the Federation of Law Societies is now reviewing different policies across the country and she added: “We expect that the revised Ethical Principles for Judges will put forward additional considerations in this regard.
“These considerations would apply to all former federally-appointed judges, whether they be from the Supreme Court or otherwise.”
Tonda MacCharles is an Ottawa-based reporter covering federal politics. Follow her on Twitter: @tondamacc