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Bar alarmed at ‘extraordinary’ situation between Harper, McLachlin

|Written By Glenn Kauth

Lawyers are defending Supreme Court Chief Justice Beverley McLachlin with The Advocates’ Society calling on the government to issue a correction to “repair the potential damage caused by these remarks.”

Chief Justice Beverley McLachlin says she didn’t lobby against Marc Nadon’s appointment to the Supreme Court.

“There’s no question the bar is concerned about this,” says Alan Mark, president of The Advocates’ Society.

“The reason we weighed in is it’s very important that Canadians have confidence in the administration of justice and the judiciary,” he adds.

Since last week, McLachlin has faced what Mark calls a “rather extraordinary” situation in which federal officials have publicly suggested she inappropriately contacted the prime minister about Justice Marc Nadon’s appointment to the Supreme Court. The allegations last week suggested McLachlin had lobbied against Nadon’s appointment, an issue she clarified in a statement on Friday. “At no time was there any communication between Chief Justice McLachlin and the government regarding any case before the courts,” the statement reads.

The statement notes that in April 2013, McLachlin met with Prime Minister Stephen Harper to give him justice Morris Fish’s retirement letter. “As is customary, they briefly discussed the needs of the Supreme Court of Canada,” according to the statement.

Then on July 29, McLachlin provided the parliamentary committee dealing with the appointment of the next Supreme Court judge with her view on the court’s needs. Two days later, her office called the minister of justice and Harper’s chief of staff to “flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court,” according to the statement.

The same day, she spoke with Justice Minister Peter MacKay to flag the potential issue. While her office made preliminary inquiries to have a discussion with Harper, she ultimately decided not to pursue a call or a meeting, according to the statement.

“Given the potential impact on the Court, I wished to ensure that the government was aware of the eligibility issue,” said McLachlin.

“At no time did I express any opinion as to the merits of the eligibility issue. It is customary for Chief Justices to be consulted during the appointment process and there is nothing inappropriate in raising a potential issue affecting a future appointment.”

The matter of Nadon’s eligibility did arise, of course, following his nomination in the fall. The Supreme Court found he was ineligible in its ruling on the matter this year. The government is now saying MacKay had told Harper not to speak to McLachlin last summer.

Lawyers are now rallying to defend McLachlin. Canadian Bar Association president Fred Headon raised concerns about the matter over the weekend, and The Advocates’ Society released a letter it sent Harper saying “there is no substance” to the government’s criticism that McLachlin lobbied against Nadon’s appointment and that she improperly interfered in a matter before the court.

“She most assuredly did not comment on or interfere in a matter that was then pending before the court,” the statement reads. “The proposed appointment of Justice Nadon was not announced until September 30, 2013, and issues concerning his appointment were not referred to the court until October 22, 2013, some three months later.”

Eugene Meehan, a lawyer with Supreme Advocacy LLP in Ottawa, describes the issue as a battle of “duelling press releases” that has gained increased prominence as a result of the top court’s increased public profile given “the social media, TV age that we live in” and the nomination-style parliamentary hearings introduced in recent years. “What happened here is normal consultation which has traditionally happened over years and decades,” says Meehan, himself a former executive legal officer to former chief justice Antonio Lamer.

“There isn’t really much here. This is not really a hill of beans,” he adds, noting there’s not much difference in the events described in the duelling press releases from the government and McLachlin.

Meehan notes the government traditionally consults with a range of players when it reaches the point of having a short list of candidates for the top court. They’ll typically include people like the CBA president and the chief justice. It’s a dialogue that is “normal, that is traditional, that until now was not considered problematic,” says Meehan, who notes he’s not aware of a chief justice having flagged a potential issue before. “I personally and professionally cannot say,” he says.

But he adds: “The flagging of a potential issue is the constitutional equivalent of flicking your headlights at oncoming traffic to warn a person of a possible speed trap ahead. The person seeing the flickering lights gets to choose whether they will do anything about it or not.”

At the end of the day, Meehan believes the issue will fade. “Two weeks from now, one may be hard pressed to ask people about it and have them knowledgeably tell you what they remember,” he says.

The Advocates’ Society, however, remains forceful in its take on the issue. “The comments at issue here can only serve to undermine the respect and confidence of ordinary Canadians in the proper administration of justice, and we therefore urge you to make a public statement advising Canadians that the chief justice did not conduct herself inappropriately in any way,” it said in its statement addressed to Harper.

“Nothing less than such a correction will repair the potential damage caused by these remarks.”

  • RE: Bar alarmed at ‘extraordinary’ situation between Harper, McLachlin

    James H Halifax
    In case you missed the point, put your dog ears on and tell me if you hear this whistle.

    Let's skip ahead to a far-fetched scenario, just to be the devils lawyer.

    In 2016, the entire bench of the Supreme court is killed after eating a bad bunch of day-old sushi. Prime Minister Harper, in his second majority Government, appoints an entire new crop of judges. A backbench MP brings in a motion outlawing abortion. It passes, and is challened to the new Surpreme court. Vic Toews, being the new Chief Justice, reads teh decision; henceforth, ALL abortion is now outlawed unless the mother's life is in danger, and the procedure will not be covered by tax dollars.

    The question of course, would be how many of the current crop of brilliant legal minds would be rushing to the defence of Toews and the other judges?

    I think we know the answer to that one.
  • RE: Bar alarmed at ‘extraordinary’ situation between Harper, McLachlin

    James H Halifax
    Lynda Stokes - after the predictable anti-Harper screed noted:
    "Ours is a federation which means the federal team does not get to change the rules of the game unilaterally."

    And others' in the "legal profession" you see no problem with a group of unelected lawyers doing it.

    I won't say that only Lawyers are arrogant enough to believe that only their judgement is beyond scrutiny....but it does seem to be a trend.
  • RE: Bar alarmed at ‘extraordinary’ situation between Harper, McLachlin

    Lynda Stokes
    Ours is a common law system, which means judicial precedent is a fundamental part of how our law develops. This notion of "activist judges" is simply dog whistle politics. I am curious if this matter has already been worked into the Conservative Party's latest fundraising drive. PM Harper via the Gov General appointed 5 of the current SCC bench. CJ McLachlin was appointed by PM Mulroney. I mention this since some commenters here seem to think the bench is politicized but it is actually the current PMO that is playing politics. The end justifies the means for this government, rule of law, democratic institutions and public servants (like Marc Mayrand) be damned. If the government is serious about constitutional reform - whether with respect to the judiciary or the senate then it can work with the provinces to amend the constitution. Ours is a federation which means the federal team does not get to change the rules of the game unilaterally.
  • RE: Bar alarmed at ‘extraordinary’ situation between Harper, McLachlin

    James H Halifax
    ibn rushd:

    The current Prime Minister has never changed the Constitution; the current surpeme court has. Now who is more respectful of it?

    While true it is a "division" of powers, you seem to think the Supreme court takes precednece. It does not; it is just one more cog. The PM gets the final say, and mhy only regret is that he hasn't used this power; as it is sorely overdue.

    As for politicians being unhappy with some of the ridiculously lame decisions the Supreme courts has made recently; it isn't just the politicians who are fed up.

    the Surpreme court has already removed freedom of speech, and the right to freedom of association. Someon in the very near future had better use the notwhishtanding clause on some of these onerous decisions, or the Surpreme court will lose whatever credibility remains.

    THey have become a joke.
  • RE: Bar alarmed at ‘extraordinary’ situation between Harper, McLachlin

    ibn rushd
    The prime minister appears to have a weak grasp of the contitution and associated documents, and the historical development of the division of powers. Therefore this is a major issue in a prime minister, not a minor issue. This term activist judge gets tossed around too casually, but it has little coherency in this context. However, this is a major issue whether one takes a philosophical perspective of the law, a constitutional perspective, historical evolutionary one, or a political perspective. Attacks on the judiciary by politicians unhappy with a decision have the capacity to undermine the system of justice, and the distribution of legal powers, particularly when the attack is of a personal nature, but the more substantive issue is undermining the structure of justice, and an attack on the substance and principles of justice and the structures essential to its coherent function. There is an unsettling pattern to Mr Harper's attacks on individuals. They divert from substance.
  • RE: Bar alarmed at ‘extraordinary’ situation between Harper, McLachlin

    James H Halifax

    We actually agree to a point. I've seen many elected people who are idiots, and I have seen appointed people who are honourable. The problem however, is in the cases of appointments to the bench, lawyers and liberals seem to assume that ALL judges appointed will be honourable. We know that this is not the case.

    As for the case of the Chief Justice, I think it could be argued that she may have been actually trying to help the government avoid any embarassment over the appointment, but one cannot be sure. At the very least, she should have recused herself from the decision. The results would have been the same, but we could have avoided the side-show we see now.

    My other comments about the Surpreme court making the wrong decisions in many cases still stands however. The Notwithstanding clause needs to be used so that the Courts are reminded that the final say is not necessarily theirs alone.
  • Research & Project Analyst

    Kamal El-Cheikh
    There is a a difference between an elected official and an appointed official. For an appointed official, the public might be under the mercy of favoritism whereas an elected official the public might be under the mercy of an uninformed and possibly careless ballot. In any case, both mechanisms have their shortcomings but this is not to say that one is better than the other. Furthermore this does not justify the accusations made against the Chief Justice by the PMO nor does it serve to instill faith in the Judiciary.
  • RE: Bar alarmed at ‘extraordinary’ situation between Harper, McLachlin

    James H Halifax
    For Keith Milikin - LAWYER

    Quel surpris you are opposed to elected people making the laws under which we choose to live. I know that this may come as a surprise to you Keith (Lawyer), but not everyone in Canada is as assured of your moral superiority as you are.

    The Nadon decision is just the latest example of unelected judges (lawyers with nicer robes) making yet another poor decision. It wasn't too long ago that the Surpremes dictated that "truth is no defence" in libel / slander cases.

    The bashing of "activist" judges will no doubt cease, when the activism stops, and actually following the laws we passed resumes.

    The fact you believe that anyone suspccious of the Surpreme Court (and lawyers in general) is ignorant and full of resentment when they disagree with you...Keith (Lawyer) is not at all surprising.
  • Lawyer

    Keith Millikin
    per James H. Halifax- " It is time for Governments to start using the Notwithstanding clause. We need to reign this group in, and have them honour the laws passed by our ELECTED officials."

    I fear this is the "Harper" Government's end game. From many comments posted here and elsewhere, it seems this drive by smear of the Chief Justice is finding real support.

    Activist judge bashing has always been popular, but it gets to be old. How much better to accuse the CJ (and by implication, the entire Supreme Court) of impropriety? If the court is not only "activist" and "obstructionist", but also political and perhaps corrupt, why should its rulings be respected, or even binding? Why not sidestep the court, why not pull the "notwithstanding" lever? Desperate times require desperate measures.

    Harper is stirring a witch's brew of ignorance and resentment.
  • RE: Bar alarmed at ‘extraordinary’ situation between Harper, McLachlin

    James H Halifax
    Lynda wrote: (but failed to note the hypocrisy)

    "The federal government cannot unilaterally amend the Constitution"

    But apparently, you're ok with the idea of un-elected lawyers doing it?
  • RE: Bar alarmed at ‘extraordinary’ situation between Harper, McLachlin

    James H Halifax
    Judges are just lawyers with nicer robes. I find it reprensible that an unelected (and often activist) judge can make laws or change them on whim based upon their own belief system. It is time for Governments to start using the Notwithstanding clause. We need to reign this group in, and have them honour the laws passed by our ELECTED officials. The fact that our Supreme court has "read in" rights that did not exist changes the constitution, and yet, when Nadon was appointed, it suddenly becomes unconstitutional. Guess you only change the constitution when it suits your own view, or political motives.

    time to have elected judges, or at the very least, term limits. 8 years...max.
  • RE: Bar alarmed at ‘extraordinary’ situation between Harper, McLachlin

    J.D. Lees
    Hate to break it to you lawyers, but Canadians already have little confidence in the administration of justice in Canada. Lawyers rank just below used car salesmen in public esteem, and judges are a little above that.
  • RE: Bar alarmed at ‘extraordinary’ situation between Harper, McLachlin

    Ben Berkal
    The PM and his gov't should cease and desist on any further criticism of the Supreme Court. He should apologize to Canadians for this inappropriate behaviour. It is his typical behaviour to blame someone else for his errors and mistakes. The Supreme Court is an honourable institution and Canadians have faith in the good work accomplished there.
  • RE: Bar alarmed at ‘extraordinary’ situation between Harper, McLachlin

    Lynda Stokes
    I think this is yet another example where for the sake of political expediency the government is prepared to undermine institutions that are essential to Canada's system of democracy and the rule of law. The federal government cannot unilaterally amend the Constitution because Canada is a federation but it does not want to work with the provinces and then it refuses to accept responsibility for being stuck. If the Constitution were the rules of a sport or game, it would be obvious to people how appalling their behaviour is.
  • RE: Bar alarmed at ‘extraordinary’ situation between Harper, McLachlin

    Doc D
    The Supreme Court of Canada.
    Another organization that probably could use some makeover.




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