Law Times

Page 4 OctOber 29, 2018 • Law times www.lawtimesnews.com NEWS section of the Rules of Profes- sional Conduct, s. 7.7, the report said. The drafted amendment would prohibit all federally and provincially appointed judges from appearing before any court, in chambers or before any administrative board or tribunal except in exceptional circum- stances with the approval of the Hearing Division, a provision that might also extend to include justices of the peace, the report said. Malcolm Mercer, the law so- ciety's treasurer, says the LSO is still in the "early stages of gath- ering information" and has not decided on next steps. The current consultation comes after the law society pre- viously sought feedback on the issue in 2017 — and the feedback was "not supportive." In particular, the LSO's re- port said, Federal Court of Can- ada Chief Justice Paul Crampton said it might be "excessive and unfair" to extend the lifetime ban for Federal Court judges to the Superior Court of Justice or one of the lower courts. The report also cited Justice Bruce Pugsley, president of the Asso- ciation of Ontario Judges, who said the changes were unnec- essary, overly broad and "pro- foundly unfair." The Association of Ontario Judges and the Association of Justices of the Peace of Ontario also did not support amending the rules, the LSO report added, noting that "justices of the peace are not the same as judges in terms of salary and pensions," resulting "in many justices of the peace who retire at age 65 continuing to work for financial reasons." Justice Thomas Heeney, who sits on the Ontario Superior Court of Justice and is the vice president of the Canadian Supe- rior Courts Judges Association, says there has been a divergence of opinion on this issue in his association for some time — some judges were of the "firm view" that taking a position on the bench prohibits future ap- pearances as an advocate, while judges sought more f lexibility for lawyers who quickly found they would prefer to return to law than pursue a judicial career. Heeney says that, as a Supe- rior Court judge, he respects the diverging opinions and he doesn't feel comfortable com- menting on the amendment beefing up the rules for other levels of courts. However, he says, on a per- sonal level, he agrees with re- stricting court appearances for former Superior Court judges, saying there are "principled rea- sons" to do so. "One would forgive 12 lay ju- rors if they were inclined to give more force to the submissions of a former judge than to the lawyer on the other side," Heeney says. To Bob Armstrong, arbitra- tor at Arbitrator Place in Toron- to and former Court of Appeal for Ontario judge, the issue is a simple, straightforward "slam dunk." "My view: Retired judges have no place in the courtroom as counsel. In an adversarial proceeding before the justice of the peace, traffic court, Small Claims Court — whatever, the same principle applies," Arm- strong says. Marvin Zuker, a former judge of the Ontario Court of Justice, who teaches at the Uni- versity of Toronto's Ontario Institute for Studies in Educa- tion, says the consent of both the judge and opposing counsel and party should be obtained before a judge could appear as counsel. "Justice must not only be done but be must seen to be done," says Zuker. "I think there are a lot issues, not only of bias, unfair advantage but also: What kind of information does the re- tired judge have that may or may not give his or her client an ad- vantage?" Ontario is one of several prov- inces grappling with the propos- al, which stems from the Model Code of Professional Conduct developed by the Federation of Law Societies of Canada, sched- uled for approval in December. British Columbia and Saskatch- ewan have indicated to the LSO that there is not support for the proposed amendments, the re- port said. Still, the LSO report said the rules should be amended "irre- spective of any amendments to the Model Code." Some of the 2016 changes to the Rules of Professional Con- duct in Ontario came about "at the request of " Associate Chief Justice Frank Marrocco "on be- half of the Superior Court of Jus- tice," Marrocco's office says. But Marrocco's office also adds that it has no comment on the cur- rently proposed amendments. "For our court, the Superior Court is content with the rule as it is currently drafted," Mar- rocco's office says. "The current discussion at the Law Society of Ontario re- lates to a different issue: whether judges of other courts should be similarly restricted. Our court has no comment on this." The Ontario Court of Jus- tice, which declined to make a representative available for an interview, told Law Times that it does not support the Federa- tion of Law Societies' proposed changes, which would prohibit judicial officers who return to practice from communicating with or appearing before any court except in exceptional cir- cumstances with the approval of the law society, regardless of the court on which they served. Despite the opposition from judges cited in the LSO's report, the Canadian Judicial Council shared a 2017 letter with Law Times indicating that, over- all, there was "a convergence of opinion among the judiciary on most issues" posed by the Federation of Law Societies of Canada. "In brief, Council agrees that former judges should be able to return to practice, subject to certain restrictions," Norman Sabourin, the CJC's executive director and senior general counsel, wrote in a statement. "For instance, former judges should generally not appear as counsel in court. Judges should also not be permitted to negoti- ate employment opportunities with law firms while they [are] still on the Bench. And former judges should exercise caution in agreeing to any advertising or marketing of their law firm that puts too high an emphasis on their former role." 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