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A former judge has established exceptional circumstances to permit him to engage in the practice of law, according to a decision of an Ontario Law Society Tribunal Hearing Division
the applicant seeks permission to appear before the Ontario Court of Justice, the Superior Court of Justice, and the Ontario Court of Appeal. He does not intend to use his honorific or to make reference to his status as a retired judge in any proceedings, except as required by his professional responsibilities or any direction or order of the court. He also proposes that as a condition of the Tribunal’s order, he be restricted from appearing as counsel at the Superior Court of Justice and the Ontario court of Justice at Woodstock and St. Thomas until May 2, 2025.
concerns about former judges appearing as counsel have been addressed by various professional bodies, including the Canadian Judicial Council (CJC), the Federation of Law Societies of Canada (FLSC), and the Canadian Bar Association. These relate to apprehension of bias, conflict of interest, and, most importantly, public perception and confidence in the justice system.
In a discussion paper entitled Post-Judicial Return to Practice, the FLSC’s Standing Committee on the Model Code of Professional Conduct outlined these concerns:
- apprehension of bias – the fact that counsel for one of the parties is a former judge could give rise to a reasonable apprehension of bias in favour of the former judge and their client;
- conflict of interest – a potential for personal conflicts, including the former judge not arguing against a prior decision when to do so would be in the client’s interests, or a sitting judge showing preference to their former client out of friendship or a sense of collegiality;
- public perception and confidence in the judicial system – the perceived advantage that a former judge may have as an advocate in their former court could undermine the public’s confidence in the justice system.
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We agree with the applicant’s submission that reasonable, fair-minded and informed members of the public would perceive his application favourably. The role of Assistant Crown Attorney is an important one in the administration of justice. The applicant has gained significant expertise in that role, and there is little risk that his future practice could be seen to undermine public confidence in the judiciary. Similarly, given his very short tenure as a judge and his limited contact with other judges during that tenure, the risk that his presence in court could be seen to derogate from the importance of judicial independence, integrity and impartiality is significantly mitigated.
We also consider the applicant’s longstanding role as a mentor and role model for Black lawyers to be an important factor to consider under this heading. The justice system needs individuals like the applicant to continue to serve in senior roles, especially in advocacy before the courts. Put another way, it is important for the Black community to see representation throughout the justice system and in particular within the prosecutorial function.
Finally, we consider it to be significant that this application is supported by the Law Society, which has an important statutory role to act in the public interest.
In our view, public confidence in the judiciary and the administration of justice is supported by the approval of this application.
(Mike Frisch)