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It shouldn’t be the chief justice of the Supreme Court heading the Order of Canada Advisory Council, but it’s the order’s constitution, not the chief justice, that needs changing.

It’s very unusual for Chief Justice Beverley McLachlin to come under personal attack. She’s widely respected. But some bloggers and newspaper columnists went after McLachlin when abortion doctor and activist Henry Morgentaler was awarded the Order of Canada earlier this year.

Recipients of the Order are selected by an advisory council chaired by the chief justice. Canadians who detest Morgentaler and what he stands for (and there’s quite a lot of them) pointed an angry finger at Beverley McLachlin, and attacked her imagined role in the selection process.

No one in Canada inspires divisive passions the way Morgentaler does. After he was appointed to the Order of Canada, Rex Murphy wrote in The Globe and Mail, “Henry Morgentaler is the most public face from one side of the most polarizing issue in Canadian religious, social, and political life.”

In the Montreal Gazette, columnist Henry Aubin commented that Morgentaler is “the most vocal proponent of one of the most socially radical causes of our time. In honouring such a proponent, the Order is also plainly honouring the cause itself. . . . The Order thus takes an extreme position on a moral issue that deeply divides Canadians.”

What was the chief justice’s role in appointing Morgentaler? There has been considerable conjecture. A Globe and Mail story reported, “Chief Justice McLachlin drove the nomination, which was opposed by the two government members on the nine-member committee.”

Herman Goodden, a pro-lifer and longtime Morgentaler basher, commented in the London Free Press, “It’s now known that Supreme Court Chief Justice Beverley McLachlin railroaded the Morgentaler honour. . . .”

The governor general’s official web site says of the Order of Canada Advisory Council: “The current chair decided at the outset that her role would be best fulfilled by staying neutral on individual nominations. . . . The practice of the chair is not to vote or to take a position for or against nominations, except on the rare occurrence of a tied vote.”

At a press conference she gave in August at the Canadian Bar Association annual convention, McLachlin confirmed that she did not vote on the Morgentaler nomination, and that it is her practice not to promote a particular candidate. She described rumours to the contrary as “misinformation,” and said that she was “reasonably comfortable about the process.”

The waters were muddied further by the fact that Morgentaler had been the successful appellant in a famous Supreme Court of Canada case, R. v. Morgentaler, decided in 1988. The court struck down, as contrary to the Charter of Rights and Freedoms, provisions of the Criminal Code that made it an offence to perform an abortion except under very limited circumstances.

Coincidentally, the 20th anniversary of this decision was being celebrated (by some) at the same time as Morgentaler’s Order of Canada was announced. One can guess that pro-lifers felt salt being rubbed into their wounds. But what has all that got to do with the chief justice? The answer, objectively speaking, is nothing at all. In 1988, McLachlin did not sit on the Supreme Court of Canada (she was appointed in 1989).

So far as anybody knows, Morgentaler will not be back before the court. Somehow, though, the various interwoven Morgentaler connections, loose as they are, made people nervous.

Does the chief justice’s Order of Canada problem go beyond Morgentaler’s very unusual story? The most recent appointments to the Order were announced on July 1. Seventy-five people (including Morgentaler) were honoured.

They included, for example, prominent business people: Wallace McCain, chairman of Maple Leaf Foods; Gail Asper, a major shareholder and a director and officer of Canwest Global; and Frank McKenna, deputy chairman of the Toronto Dominion Bank. Buzz Hargrove, recently retired president of the Canadian Auto Workers union, was on the list. And there were several lawyers; one of them was Joan Clark of Montreal, who has appeared on occasion before the Supreme Court. All these are very worthy people, to be sure.

But is it wise for the chief justice to be involved in granting honours to people closely identified with organizations that could easily end up before the Supreme Court, or to lawyers who plead before it?

There’s another side to the problem. What happens when someone who has the Order of Canada gets into trouble, and pressure builds to have his or her award taken away? A different kind of judgment is called for, and an even more difficult one. Only two people have been removed from the Order so far. Alan Eagleson, once president of the National Hockey League Players’ Association and disbarred lawyer, was removed after he was convicted of fraud. David Ahenakew, former chief of the Federation of Saskatchewan Indians, was kicked out following a number of public anti-Semitic statements.

(It has been reported that McLachlin abstained from the vote on Ahenakew.) But difficult situations continue to come up. Should Conrad Black’s Order of Canada be taken away? What about onetime lawyer Sher Singh? Singh, a leader of the Sikh community, was awarded the Order of Canada in 2002 but was disbarred five years later after a series of unfortunate personal setbacks affected his legal practice (see the Canadian Lawyer cover story of February 2008).

Letter-writing campaigns, for and against Singh remaining in the Order, were organized by his friends and detractors. These letters were addressed to the chief justice. (I wrote in Sher Singh’s support, and received a very polite acknowledgement.) Should the chief justice of the Supreme Court have anything to do with this kind of controversy?

It is the constitution of the Order of Canada that makes the chief justice the chairperson of the advisory council. At her August press conference, McLachlin said, “It’s not something I chose to do.” Maybe it’s time to change the Order’s constitution and make someone else chairperson. The biggest beneficiary might be the chief justice.

  

Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at philipslayton.com


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