Supreme Fixers?

I’ve previously argued that retired Supreme Court of Canada judges should not practice law. This column considers a distinct type of post-judicial activity: the private retention of retired SCC judges by powerful institutions to prepare reports in response to controversial events.[1] Such “fixer” work does not necessarily (and, in many scenarios, would not) involve the provision of legal services. However, it still raises concerns. As I outline below, retired SCC judges taking on this type of work risks threatening public confidence in the Supreme Court itself. I recommend that, going forward, retired SCC judges should decline such mandates.

What type of work are we talking about?

Some recent examples of retired SCC judges taking on these sorts of mandates include:

• In 2020, the University of Toronto commissioned Thomas Cromwell to conduct an “independent and impartial” review into the search process for a new director of the Faculty of Law’s International Human Rights Program. The precipitating event for engaging Cromwell was, as summarized in the Globe and Mail, “the aborted hiring of Valentina Azarova, an international legal scholar, after a major donor raised questions with a university administrator and mentioned Dr. Azarova’s work on the Israeli occupation of Palestinian territories.”
• In 2021, the University of Ottawa enlisted Michel Bastarache to chair a committee on academic freedom. The purpose of this committee was, in the words of the University’s President, to conduct an “independent” review of issues relating to academic freedom in response to what he termed “polarizing events”. The events were widely understood to be (and reported in the media as) a series of controversial tweets by a professor and the use of the “N-word” by another professor during a lecture (see here and here for background).
• Earlier this month, Hockey Canada hired Thomas Cromwell to “lead an independent review of the organization’s governance structures and systems.” Hockey Canada’s announcement of the review mentions that “trust” in the organization has been lost due to “recent events” – a clear reference to the public controversy surrounding its response to sexual assault allegations made against players.

Other examples are no doubt available, particularly if one reaches back into history. My point in identifying these specific examples is not to focus on their particulars but instead to provide clarity on the general type of post-judicial activity which raises the concerns detailed below. For my purposes, the salient common characteristics of the above examples are: (1) the formal and very public engagement of a retired SCC judge; (2) to lead an “independent” review; (3) following a controversial event or series of events; (4) that attracted extensive, largely negative, publicity.

Status trading

It is inevitable, in these types of cases, that the institution engaging a retired SCC judge ends up co-opting the prestige associated with the former judge’s role. This is evident in press releases that refer to the individual retained as a “former Supreme Court of Canada Justice”. This type of signalling is motivated, of course, by the gravitas that accompanies the title of (former) Supreme Court Justice. It allows the institution to tell the public, “we’re serious about this issue – just look at this serious and important person who is helping us!” Such a message is particularly useful in the face of a raging public controversy. Even if an institution wanted to avoid trading on a former judge’s status in this way, it is practically impossible to detach a former judge from their identity as “former Supreme Court of Canada Justice”. At the level of the Supreme Court, the status is “sticky”; that is, while a lesser-known lower court judge might be able to distance themselves from their former judicial office after retirement, a Supreme Court judge will simply never be able to do so. Once a Supreme Court judge, always a Supreme Court judge.

It is true that individuals trade on former statuses all the time. For example, former politicians sell books and go on speaking circuits, the commercial viability of which is driven by the stature of the public offices that they formerly held. So, what makes status-use a problem for former SCC judges when they take on reporting mandates for powerful institutions?

Part of the problem is that the uses made of the status of “Supreme Court Justice”, even post-retirement, risk reverberating back to the Supreme Court itself. When a former SCC judge lends their status to a powerful institution for the express purpose of leading an investigation or review intended to, among other things, remediate that institution’s reputation, there is a risk that the public may then view the Court, if only subtly and indirectly, as an institution that helps – and covers for – the powerful.

This risk is amplified in cases where the powerful institution retaining an ex-judge is facing criticism from marginalized or vulnerable groups. Calling in a former SCC judge, who brings with them the spectre of the Supreme Court’s power, exacerbates the underlying power imbalance between the institution and marginalized/vulnerable groups. It can also look like “picking a side”, even if this is not at all the intention. As a consequence, the public may look back, with a new skepticism, to statements made by the Court about the importance of equal access to justice.

These risks may also be further elevated in instances where the former SCC judge retained does not appear to have any uniquely relevant skills or substantive knowledge on the subject matter at the heart of a given controversy or for the task that they are engaged to undertake. While sitting Supreme Court judges are forced to grapple with a wide range of challenging legal questions across a wide range of subject areas, their judicial work occurs in a very specific context. This context involves, among other things, answering bounded legal questions with the assistance of expert (and also bounded) submissions by skilled lawyers. This is not the context of the reporting mandates. With respect to investigative mandates, in particular, it has been argued that they “appeal to the wrong skill set” and observed that, upon retirement, SCC judges have “no (recent) experience in fact-finding or credibility assessments. If you’re going to get a judge to do these kinds [of] things, hire a retired trial judge.” If a retired SCC judge isn’t chosen by an institution because they have uniquely relevant skills or substantive knowledge, an impression may be left that the motivating force behind engaging the ex-judge is one of reputation laundering.

Even if a retired SCC judge has seemingly relevant experience and/or skills, their “sticky” title is, as noted above, still doing some work for the engaging institution by adding gravitas. It would be extremely difficult for an institution to credibly claim that the ex-judge’s status as a former member of the SCC is entirely irrelevant to why they hired that person to address a given controversy.

All of this risks corroding public confidence in the Supreme Court. Stated simply, the public’s perception of who the Court serves risks being influenced by who its former justices choose to serve and the perceptions that result from such service. I’m not suggesting a direct cause-and-effect relationship, nor am I suggesting that it is fair or correct to draw such inferences. But impressions matter. Public confidence in an extremely important institution may be subtly undermined when former SCC judges take on “fixer” roles for powerful institutions. Indeed, judges themselves appear alert to this concern. The recently updated Canadian Judicial Council’s Ethical Principles for Judges states:

5.E.3 Former judges should exercise appropriate caution in accepting retainers and providing legal advice in high profile or politically contentious matters where it can be anticipated that a client may make use of the judge’s former status to advance the client’s interests.

Mentioning this topic in guidance intended to “maintain public confidence in the judiciary” belies any suggestion that the meaning and consequences of retired judges taking on high-profile reporting roles can simply be cabined to those former judges as individuals. The broader public, too, appears to be alert to the risks. A CJC survey found that 75% of respondents agreed that “upon retirement, judges should not use the prestige of their former position to gain any business advantage.”

Illusive authority

A former SCC judge brings not only the prestige of their former status to a “fixer” role, but also the perception of authority. When the Supreme Court pronounces on the law, there is a certain type of correctness and finality that attaches to its pronouncement. People can (and often do) critique the Court’s decisions, but the Court’s pronouncement still stands as the law. It is the final word in this particular sense. When an institution is faced with a highly controversial or contentious issue, resolving it with this sort of “door closing” is attractive. Being able to announce that “former SCC Justice X says that there is no problem here” or that “former SCC Justice Y says we can fix all this through these discrete steps” can feel like an unassailable resolution for a messy, complicated problem.

The trouble is, of course, that the mess which sparked the controversy doesn’t evaporate because a former SCC judge (or anyone else) has written a report. “Covering the problem in the ‘prestige’ of a hired [former] SCC judge doesn’t get rid of the problem.” To state the obvious, an “independent report” from a former SCC judge is not a judicial decision. It doesn’t conclude the lis. Returning to the above examples, Cromwell’s U of T report came under considerable public criticism (see, e.g., here, here, and here), as did Bastarache’s uOttawa report (see, e.g. here, here, and here). In both cases, the controversies endured. Post-Cromwell report, U of T received a rare censure from the Canadian Association of University Teachers, which was lifted only after U of T took additional action, including re-offering the position to Azarova and modifying certain university practices (see here for more background). The Bastarache report did not end the matter at the University of Ottawa, either. As reported in an Ottawa Citizen headline: the “academic freedom debate still simmers at uOttawa in wake of Bastarache report.” The report’s official website and cover page also indicate that aspects of the report itself ended up being modified post-publication, following the identification of certain errors and problems.

What does it mean for the authority of the Court when the authority of those who carry its moniker (albeit qualified with a gentle “former”) are questioned? When their pronouncements are not, in fact, treated as final? If the Court is inevitability brought to these matters via the former judge’s status, it seems logical to worry that at least some of doubts or critiques that then arise with the former judge’s mandate might come to blow back on the Court.

Impartiality and independence misattributions

It also bears consideration that underlying the authority and finality ascribed to decisions of the Supreme Court are systemic commitments and processes that aim to ensure the impartial and independent resolution of disputes. There are legal rules about evidence, avoiding apprehensions of bias, rights to be heard, what constitutes a proper record to decide on and what types of reasons are sufficient. All of this protective lattice undergirds our system’s attribution of a legal presumption of “integrity and impartiality” to judicial decisions. Likewise, we vigorously protect judicial independence through a variety of means, including by providing security of tenure, administrative independence and publicly funded financial security. In the words of the CJC Ethical Principles, such “institutional and operational structures” operate to “protect judges and courts from external influence so that judicial decisions are made according to law in a fair process.”

Importantly, all of these protective commitments and processes are specific to the judicial institution, rather than attached to the individuals occupying the role of judge. No doubt, most judges (and former judges) can be accurately described as fair people with admirable integrity. But this alone does not underwrite our confidence in the impartiality and independence of the justice system. Again, there is a whole set of machinery in place that aims to do this. That machinery does not accompany a former judge engaged in a reporting mandate. And, problems can arise if and when the valence of impartiality and independence connected to the Court gets misattributed to the ex-judge’s new mandate. The possibility of such misattribution is undoubtedly amplified when engaging parties prominently label the work as “impartial” and “independent”, as seems to be de rigueur.

Once again, the concern arising from all of this is that what is borrowed from the Supreme Court might not be returned unscathed. What happens if the badge of impartiality – and the associated sense of unassailability – that an institution engaging a former SCC judge hopes to gain, and publicly touts, doesn’t materialize? In a certain sense, it never can. Reporting mandates can adopt some court-like features, but these aren’t court processes. The approach of “add an ex-SCC judge and stir” doesn’t change this reality. Such limitations can, in turn, lead to questions about the legitimacy of the process used in these sorts of mandates and the resulting outcomes. Indeed, underlying much of the critiques of the Cromwell and Bastarache reports were concerns about the limits of their mandates and the methodologies used. For example, the fact that Cromwell reached findings without assessing the credibility of the parties involved has been repeatedly criticized (see, e.g., here, here, here and here). Among the critiques of the Bastarache report were concerns that the committee’s “narrow mandate constituted a missed opportunity to address existing governance deficiencies at the University of Ottawa” and a perceived lack of “effort at meaningful consultation with Black, Indigenous and racialized professors and librarians at the University of Ottawa.”

Similar fault lines emerge around questions of independence. The strong security of tenure associated with judicial offices does not overlay private engagements. The insulation from private financial incentives, which is underwritten by publicly-funded judicial salaries and rules about other financial relationships, does not remain post-retirement. Further, in the case of reporting mandates, there is likely only qualified administrative independence to be had. The ex-judge is engaged by an interested party with a stake in the resolution of the matter and who generally retains at least some degree of control. As has been observed in the case of Cromwell’s retention by Hockey Canada: “Hockey Canada’s own statement said the review is ‘on behalf of the organization’s board of directors.’ That in and of itself states it is not independent…”

Questions about inadequate processes or lack of independence can pose problems for those who engage a former SCC judge to address a controversial issue. A supplementary controversy may arise: people may still be mad; the desired closure may remain out of reach. But also, again, we might ask whether there is a risk of negative reverberations back to the Supreme Court itself. If the public is sent a message that a process will be legitimate because a former Supreme Court justice is involved, what happens when the legitimacy of the process faces credible critiques? The positive institutional qualities of the Supreme Court that were misattributed to the “fixer” mandate may be re-attributed back to the Court, but in a corroded form.

Taking a precautionary approach

This column has outlined concerns about the possible impacts on public confidence in the Supreme Court when ex-SCC judges take on certain types of reporting mandates.

Undoubtedly, some may see the risks raised here as largely speculative. Admittedly, this isn’t an issue that lends itself to decisive “proof” either way. To those skeptical, here is a final pitch for caution. At a time when faith in public institutions has never been more important, yet more imperiled, we need to vigorously safeguard the perceived legitimacy of our courts in the eyes of the public. Threats to that legitimacy can come in the form of single cataclysmic events but can also result from a series of small moves that accumulate over time. We ought to be as protective as possible. To be sure, retired SCC judges taking on these jobs is not the biggest threat that our justice system faces. Far from it. There is a compelling case, however, that it may be a threat. So why not take it seriously?

Additionally, it doesn’t seem particularly burdensome to have ex-SCC judges refrain from this type of work. Retired judges can do all sorts of things with their time. Moreover, the substantial judicial pensions provided to ex-SCC judges undercut any claims about financial necessity in the case of paid mandates. From the engaging party’s perspective, there are plenty of highly competent individuals with the skills and expertise necessary to address controversies or contentious issues. Former Supreme Court judges are smart and able, but so are lots of other people. Indeed, some of those other people may have particular skills and experiences that make them even better suited to take on certain mandates (n.b. this commentary in relation to the Hockey Canada matter).

So, what now?

Currently, this type of work does not violate any existing ethics rules. I’ve previously called for new law society rules that bar former SCC judges from practicing law (right now, there are only restrictions relating to court appearances). This would address certain types of retainers, but not all. Where such work does not involve the practice of law, law societies have no jurisdiction.

Likewise, judicial regulators like the CJC do not have jurisdiction over what retired judges do for work. They can provide advisory guidance, like that found in section 5.E.3 of the updated Ethical Principles for Judges, cited above, but such guidance is not a prohibition. I suppose judicial regulators could issue even stronger advisory guidance, but one wonders how effective that would be.

Ultimately, it falls to either retired SCC judges to stop taking on these engagements, or to powerful institutions to stop offering them. Presumably, the latter will only happen if institutions feel that such engagements are no longer valuable, which in turn may only happen upon a certain level of corrosion to the status of “former SCC justice” (and tag-along corrosion of the Court as an institution). A better route is for retired SCC judges to proactively and voluntarily opt-out.

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[1] In referring to “private retainers”, I mean to exclude engagement in public inquiries.