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Retirement from SCC should not be a life sentence | Kyla Lee

Tuesday, August 20, 2019 @ 10:19 AM | By Kyla Lee


Kyla Lee %>
Kyla Lee
Since the Trudeau ethics report was released last week, a small commotion has erupted in the legal community. The commotion centres around whether retired Supreme Court of Canada (SCC) judges should be permitted to return to private practice, and whether in doing so they can be weaponized against one another.

And while many lawyers believe it is inappropriate for retired justices to take on cases and provide legal guidance and insight into political scandals, the reality is that there is nothing in law that prevents them from doing so. Nor should there be.

The theory opposing retired SCC justices from taking on private cases and providing legal opinions and guidance is that their opinions will be given additional weight or deference that the opinions of other litigators may not be given. However, the reality is that once they leave the bench they are members of the bar just like any other lawyers and are permitted to offer advice and take on cases.

And why should they be prohibited from this?

Muzzling the work that retired justices can do or preventing them from offering a legal opinion on an issue for which they are retained risks putting those justices in figurative cages. Unlike lawyers, who retire from their firms and can continue to take on cases, or Court of Appeal judges who step down and then return to private practices, SCC judges are being questioned for doing the same thing.

The distinction appears artificial, separated only by the level of court.

And none of the arguments against letting SCC justices return to private practice appear to recognize that the mandatory retirement age of 75 means that once these justices have given hours and years to developing and maintaining the rule of law in our country, they still have many years of work left in them. Let’s face it: people do not end up on the SCC because they do not enjoy hard work.

Instead of letting these judges go back to being lawyers, careers they devoted decades to before their appointments, are they supposed to sit at home, twiddling their thumbs and perhaps writing the occasional murder mystery? This seems wholly unfair. Almost unconstitutional, in fact. Not only must they be forced out by hitting an arbitrary number, but they must also then give up any future after that.

If you want to attract more diversity, Indigenous people and women as applicants to the SCC, the pool of candidates is not getting wider for making it the final resting place of an otherwise exceptional career.

Yes, there is something to be said for how distasteful the idea of pitting one retired SCC judge against another is. And while the optics of that are bad, the reality is that is all it is: optics. If the SCC retirees were not available as a pool of potential lawyers to politicians and their ilk, nothing would change. Instead of retired SCC judges the politicians will just hire high-profile litigators, senior partners at national firms or retired Court of Appeal judges.

There is no shortage of lawyers to arm oneself with in a legal battle. Removing SCC retirees from the pool changes nothing about how distasteful the practice of battling legal opinions in political discourse has become.

So rather than force our SCC judges to simply end their careers altogether at age 75, perhaps we should expect better of our politicians.

Kyla Lee is a criminal lawyer and partner at Acumen Law Corporation in Vancouver. Her practice focuses on impaired driving. She is the host of a podcast, Driving Law, and a weekly video series Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! She is called to the bar in Yukon and British Columbia.

Interested in writing for us? To learn more about how you can add your voice to The Lawyer's Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.