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Harper Unfairly Smears Chief Justice of the Supreme Court

On May 1, 2014, the Prime Minister’s Office released a statement accusing Canada’s Chief Justice of the Supreme Court, the Right Honourable Beverly McLachlin, of attempting to make an “inappropriate” telephone call to the Prime Minister, the Right Honourable Stephen Harper.

It would be completely inappropriate for a member of the Supreme Court to discuss a case before them directly with the Prime Minister. However, in this instance there was no “case” before them, and more importantly there was no attempted telephone call. The Prime Minister’s Office has refused to provide details of any specific telephone call and now refuses to answer any questions about the matter during question period within the House of Commons.

Politicians are not known to hold punches, but attacking the integrity of the judiciary of our country –especially the Chief Justice of our highest court – is incredibly inappropriate for any politician. Disagreeing with court decisions is fine, but comments like these are unprecedented in our history as a nation.

This is not a partisan issue. The Canadian Bar Association and Ontario’s Advocates’ Society have been quick to condemn the Prime Minister’s unprecedented and completely inappropriate attack on the Chief Justice. Eleven former presidents of the Canadian Bar Association released a joint statement on the matter which highlights why these comments are completely beyond the pale. View that statement here.

At this time the Prime Minister has not appointed a new Supreme Court Justice. Instead, for the past few weeks the Justice Minister has been publicly disagreeing with the Supreme Court’s decision and now the Prime Minister has begun calling the Chief Justice’s integrity into question. On top of this, the Prime Minister and the Justice Minister refuse to answer questions about their actions or comments in the House of Commons, because that would be “inappropriate.”

If you are not familiar with the events leading to the current situation, a more complete timeline is below.

To summarize the situation:

  • A seat reserved for a Quebec jurist became available on the Supreme Court Bench when Justice Fish announced his retirement in April 2013;
  • The Government asked the Chief Justice to participate with a selection committee;
  • The Chief Justice did participate with the selection committee as requested, and flagged an eligibility issue which was likely already known to the Government;
  • Federal Court Justice Marc Nadon was appointed by Stephen Harper to the Supreme Court;
  • The eligibility issue was raised shortly after the appointment by a Toronto lawyer, the Government of Quebec, and the Federal Government, challenging or seeking clarification regarding Justice Nadon’s appointment;
  • The Chief Justice did not attempt to telephone the Prime Minister, either before or after Justice Nadon’s appointment;
  • The Chief Justice did not contact the Government about the eligibility issue after July 31, 2013, two days after she met with the selection committee and more than two months before Justice Nadon’s appointment; and
  • Over ten months following the Chief Justice’s participation with the selection committee and after losing multiple Supreme Court references, Stephen Harper suddenly alleges the Chief Justice made an “inappropriate” telephone call to him which he did not accept. He refuses to provide specifics or respond to questions about his comments.

To date, no new Justice has been named. By all accounts Justice Nadon is an incredibly intelligent and capable jurist who has been caught in the middle of what has degenerated into a political sideshow.

Whether you agree with it or not, the Constitution mandates that a minimum number of Justices are from Quebec, presumably because they employ a different system of law than the rest of Canada and the Supreme Court requires expertise in the Civil Code. Our Constitution specifies how Supreme Court Justices from Quebec are selected, and our Constitution cannot be amended by inserting a paragraph into a 500 page omnibus budget bill by the government of the day, for obvious reasons.

Regardless of your political stripes, any member of the government who publicly attacks any member of the judiciary unfairly ought to be admonished. Our courts have a specific job to do, and undermining public confidence because you do not get the decisions you want is completely unbecoming of our leaders.

Voice your concerns:

The Right Honourable Stephen Harper
Prime Minister of Canada
Office of the Prime Minister
80 Wellington Street
Ottawa, ON K1A 0A2

Fax: 613-941-6900

Email: pm@pm.gc.ca

Timeline of Events:

Prior to 2013 – When a Supreme Court Justice retires, typically a selection committee appointed by the Government meets in private to discuss potential candidates. This committee typically consists of several Members of Parliament and legal experts, as well as at least one member of the Supreme Court.

April 22, 2013 – Supreme Court Justice Morris Fish of Quebec announces he will be retiring on August 31, 2013.

June 7, 2013 – The Federal Government executes a $24,238 contract with Lenczner Slaght Royce Smith Griffin, where retired Supreme Court Justice Ian Binnie is employed. This is the only contract between the government and Justice Binnie’s law firm in 2013, suggesting he was retained on or around this date to provide an opinion which was ultimately released on September 9, 2013. This suggests the Federal Government was aware that there may be potential issues regarding a Supreme Court nomination prior to forming a selection committee.

June 11, 2013 – The Government forms a selection committee which will meet in private to discuss replacing Justice Fish. Five Members of Parliament (three Conservatives, one Liberal and one NDP) and the Chief Justice of the Supreme Court are part of the committee. It was reported that unlike previous selection committees, no third party legal experts such as a representative of the Canadian Bar Association were invited.

July 29, 2013 – A Parliamentary Selection Committee meets with Chief Justice of the Supreme Court McLachlin to discuss a shortlist of candidates. Federal Court Justice Marc Nadon is on this shortlist.

July 31, 2013 – Two days after meeting with the selection committee, Supreme Court Chief Justice Beverly McLauchlin calls the Justice Minister, Peter McKay, and Prime Minister’s Chief of Staff, Ray Novak to provide information regarding the minimum constitutional requirements of an appointee to replace Justice Fish. At no time does the Chief Justice attempt to contact the Prime Minister directly.

August 17, 2013 – Peter McKay notes publicly that the Supreme Court Act “could be interpreted as excluding federal judges from Supreme Court appointments.”

September 9, 2013 – At the request of the Department of Justice, former Supreme Court Justice Ian Binnie provides the Government with his opinion regarding the nomination of a Federal Court judge to one of seats reserved for a Quebec jurist on the Supreme Court. Former Supreme Court Justice Louise Charron is later hired by the Government and agrees with the opinion of Justice Binnie. Both agree that he should be eligible directly, and in any case he may join the Quebec Bar for a day. Justice Nadon does not join the Quebec Bar prior to a formal appointment.

September 30, 2013 – Steven Harper announces he will be appointing Justice Marc Nadon for the vacant “Quebec seat” of the Supreme Court.

October 3, 2013 – Justice Marc Nadon is formally appointed to the Supreme Court.

October 9, 2013 – Less than a week after the appointment of Justice Nadon, Toronto lawyer Rocco Galanti contests his appointment.

October 17, 2013 – The Quebec Government confirms it will also contest the appointment of Justice Nadon.

October 22, 2013 – the Federal Government attempts to amend the Constitution within an omnibus budget bill (which the Supreme Court later confirms is unconstitutional). The Federal Government also announces it will refer Justice Nadon’s appointment to the Supreme Court.

January 15, 2014 – The Supreme Court hears arguments about whether or not Justice Nadon’s appointment was unconstitutional.

March 21, 2014 – In a 6-1 decision, the Supreme Court declares that the appointment was unconstitutional. In the lone dissent, Justice Moldaver highlights that it raises the “absurd” possibility that Nadon could have stepped down from the Federal Court and joined the Quebec Bar for a day. None of the remaining Justices disagree with this contention, a scenario which was also referenced in Justice Binnie’s opinion released on September 9, 2014 which Justice Charron agreed with.

May 1, 2014 –   The Prime Minister’s Office releases the following statement suggesting the Chief Justice inappropriately attempted to contact the Prime Minister:

“Neither the Prime Minister nor the Minister of Justice would ever call a sitting judge on a matter that is or may be before their court […] The Chief Justice initiated the call to the Minister of Justice. After the Minister received her call he advised the Prime Minister that given the subject she wished to raise, taking a phone call from the Chief Justice would be inadvisable and inappropriate. The Prime Minister agreed and did not take her call.

May 2, 2014 –  The Prime Minister, speaking in London, Ontario says the following in a speech:

“I think if people thought that the prime minister, other ministers of the government, were consulting judges before them or — even worse — consulting judges on cases that might come before them, before the judges themselves had the opportunity to hear the appropriate evidence, I think the entire opposition, entire media and entire legal community would be outraged […] So I do not think that’s the appropriate way to go.”

May 2, 2014 –  The Chief Justice releases a statement confirming that she never attempted to contact the Prime Minister directly and did not advise on the merits of any potential issue with the Nadon appointment, but merely flagged the specific Quebec requirements contained in the Constitution. At no time has the Prime Minister’s office specified when the Chief Justice supposedly made the telephone call that he “did not take.”

May 6, 2014 –  Opposition Leader Thomas Mulclair demands during question period that the Prime Minister apologize to the Chief Justice. The Prime Minister responded: “It’s because of our respect for the independence of the judiciary that the prime minister does not discuss an issue that might wind up before the court.” The Prime Minister failed to clarify why it was appropriate to discuss the issue via a press release and speech on May 1 and 2, 2014.