Politicians become judges, but should judges become politicians?

It might have been expected that in a close election campaign, the Conservatives would take aim at “soft on crime judges” as part of their larger “tough on crime” narrative. In fact, they have set up a website — www.youbethejudge.ca — devoted to one particular jurist whom they have in their political crosshairs. What is unusual is that this judge swapped her black judicial robes for the orange colours of the NDP. Carol Baird Ellan is an NDP star candidate running in the suburban Vancouver riding of Burnaby-North Seymour. She is also the former chief judge of the British Columbia Provincial Court.

Baird Ellan (judges are not supposed to be called “judge” once they retire or resign from the bench) is not the first nor likely the last judge to enter the political fray. Most notably, Wally Oppal went from being a BC Court of Appeal judge one week to a candidate for Gordon Campbell’s Liberals the next. Ultimately, Oppal and Campbell’s Liberals won election and he served as Campbell’s attorney general from 2005 to 2009. Before him, Claude Wagner was a Quebec judge, then a Liberal provincial politician and attorney general, then a judge again; then he became a federal Tory MP, ran for the Tory leadership in 1976, losing to Joe Clark, and ended his career as a senator. His son is Supreme Court Justice Richard Wagner, who seems content so far to remain a judge.

Partisan politics and the bench have a long history that predates Confederation. However, the usual flow is from partisan political service to impartial judicial arbiter, not the opposite. The examples are too numerous to mention but include Sir Charles Fitzpatrick, who served as Prime Minister Wilfrid Laurier’s attorney general until he was appointed directly to the Supreme Court as chief justice in 1906. Douglas Abbott was the last one to make the jump directly from the federal cabinet to the Supreme Court, trading in his briefing books as minister of finance for the volumes of the Supreme Court reports in 1954. Most recently, Vic Toews was appointed to the Manitoba Court of Queen’s Bench after leaving federal politics, joining a list of former federal cabinet ministers appointed to the bench that includes Pierre Blais, Mark McGuigan and Bud Cullen. Provincial politicians turned judges include provincial chief justices Roy McMurtry (Ontario), Clyde Wells (Newfoundland and Labrador) and Thane Campbell (Prince Edward Island). The list goes on.

More rare is traffic the other way: from the bench to the political arena. Partisan political involvement by retired judges is not restricted to running for office, although that is the most overt form. In recent years, former Supreme Court of Canada judges have endorsed political candidates, stood shoulder to shoulder with an MP at a press conference announcing a private member’s bill and inserted themselves into public debate on controversial public issues.

Many of their former judicial colleagues likely bristle at such political involvement, precisely because the former judges are often referred to as “former judge of the Supreme Court of Canada” or the like. Often it is their former judicial status that attracts attention to their actions. If they were ordinary lawyers (all judges have to be lawyers), the media would be unlikely to be interested in what they have to say. It is precisely their pedigree as former judges that gives them a platform that they would otherwise not have. And herein lies the problem.

This commingling of judges and politics harms the public perception of the judiciary as an institution that is independent and nonpartisan. The more former judges trade on their “judge status,” the more difficult it becomes for members of the public to distinguish between active and retired judges. Such actions contribute to the public perception that judges are simply “politicians in robes.” Politically active former judges thus make it harder for current judges to do their job.

So why do former judges get involved in politics?

The first answer is because they can. Judges — like all Canadians — are living longer and more productive lives. Increasingly, the bench is seen as a second rather than a final career, and the question for judges in their 60s and 70s becomes what to do in their third career after the bench.

The second answer is also because they can. Ethical rules for judges warn against any sort of political involvement. So verboten was the field of politics that judges were prohibited from voting under the Canada Elections Act until the 1980s. But once a judge steps down from the bench, the ethical rules for judges do not apply. For those who return to the practice of law, they become governed by Law Society rules, which have precious little to say about former judges.

Just because they can does not make it right. Former judges should exercise a little more (judicial?) restraint before entering the political fray.