When will retired Canadian judges learn judicial independence is a two-way street?

A group of more than 60 “former top security officials, military commanders and politicians” have signed an open letter “imploring the Liberal government to take national security and defence more seriously.” Among the signatories is former Chief Justice Beverley McLachlin.

I shouldn’t have to spell out why this is highly problematic (although apparently I do!). The legitimacy of the judiciary, and perhaps especially the Supreme Court, rests largely on the perceived political impartiality of its judges. The high profile nature of the top court’s work means that SCC justices especially have to work to ensure they refrain from overtly political and partisan behaviour, and this extends, in my opinion, to their time in retirement.

The perception that a retired SCC judge may attempt to influence government or express views that might be viewed as partisan will naturally raise obvious questions about how that individual approached the innately political matters that routinely came before them while they were still a judge. In many cases, such scrutiny might be unfair. After all, surely many judges are capable of separating their political or partisan biases when deciding on, say, constitutional matters? Unfortunately a robust approach to conflict of interest, ethics, and basic propriety reminds us that judges are human beings, subject to the same cognitive biases and defects as the rest of us.

This is why perception matters as much as anything when it comes to these things. McLachlin signing a letter is hardly proof she is a partisan, let alone that she allowed her political biases to inform her decision-making. But that should not be our (low) standard for propriety here. How a reasonable person might perceive what signing onto the letter means - as a political, and yes, potentially partisan, act - should be the rule.

It is also why it is not enough to say “they’re retired and they have the same rights as any citizen to engage in politics!” Yes, they do enjoy the same legal rights as the rest of us. But would you be comfortable with a retired SCC judge running for partisan office? If that doesn’t give you pause, you may indeed be incredibly naive about the role of the Court and the innately political nature of its work. By political, I do not mean the Court is partisan (unlike its US counterpart). I mean that the Court addresses questions that are deeply politically contested, morally and philosophically fraught, laden often in complex matters of public policy, to which reasonable people can reasonably disagree and on which the law as an autonomous thing often provides no singular ‘correct answers’.

Recognizing this fact we must state that there remains, even in retirement, a duty of political restraint, especially for former members of the Supreme Court. Why? Because when retired judges engage in political activism or partisanship, people will naturally - in some cases, rightly - come to question the bases for their past decision-making.

McLachlin’s breach of propriety here - signing a letter - is hardly on the level of the revelation that current US Supreme Court Judge Clarence Thomas has been accepting massive gifts from a billionaire conservative. Nor do I think it would be fair to say this somehow impugns any of her past decisions. Nonetheless, and acknowledging that life is unfair, her decision to sign on was bad judgment. She has no business pushing the government on national security policy issues or criticizing, directly or by implication, the idea that the current government is guilty of “backsliding” on national defence. It was an inappropriate breach of the principle of political restraint I’ve outlined here.

It is perhaps more useful to put this through the lens of another principle: judicial independence. Judicial independence in legal circles is most typically conceptualized as insulating and protecting the courts (and individual judges) from political interference. When enforced as a legal principle, the jurisprudence often involves shielding the courts from the other branches of government, and in the Canadian context has prevented legislatures and the executives from establishing or allowing other institutions to adopt powers and jurisdiction of the courts (especially section 96 courts as recognized in the Constitution Act, 1867). The Supreme Court has even applied the principle to require a particular institutional process to set judicial salaries (in an infamous and deeply controversial opinion in the 1997 Remuneration Reference).

This classic view often ignores the fact that for judicial independence to operate effectively, it is necessarily a two-way street. Protections for judicial institutions and individual judges are obviously necessary, but they do not amount to much if the courts come to no longer be viewed as politically independent and impartial arbiters (even in the realist sense, while we acknowledge the inherently political nature of their work). We expect a particular conception of the role of courts and judges and we therefore expect concomitant behaviour. That behaviour should reflect an attempt by judges to comport themselves in an apolitical fashion. Judges have the right to vote, but no one would countenance their openly campaigning for a particular political party, to cite an easy example.

I have already explained why this principle of political restraint ought to apply to judges in retirement, at least and especially at the Supreme Court level. Questions have finally been swirling about the egregious extent to which retired Canadian Supreme Court judges are pulled into politics by politicians looking to launder controversy, often by having them serve on inquiries/commissions or even simply seeking their legal advice so they can claim to have a former Supreme Court’s stamp of approval (recall the Harper government advertising the opinions of former judges on the validity of the Nadon appointment, an appointment subsequently overturned by the Court itself. Not a good look, all round). And politicians aren’t alone in doing this (see for example, the Cromwell report into the UofT controversy known as the Azarova affair - and note that the former judge’s report doesn’t come off very good in the aftermath). Nor do retired judges come off looking particularly good when they provide opinions about constitutionality in support of highly dubious legislation.

There are open questions about what sort of approach judges should take in retirement, but there are increasingly calls for “less” public-facing activity generally. Professor Amy Salyzyn has gone so far as to argue retired Supreme Court judges should not be permitted to practice law. McLachlin herself was criticized for remaining attached to the Hong Kong Court of Final Appeal amidst China’s repression of democracy there.

My claim is not that retired judges should be literal monks. They often take on symbolic but rewarding work on boards and charities, etc. But signing a political open letter should be regarded as obviously over the line. The protection of judicial independence relies on its reality as a two-way street.