The commission made the statement in response to a letter from University of Manitoba Faculty of Law professor Gerald Heckman on behalf of a group of lawyers and legal academics expressing concern about Harper and Justice Minister Peter MacKay’s accusation that McLachlin had inappropriately lobbied against the appointment of Justice Marc Nadon to the Supreme Court when she called their offices last July.
“Nothing in international standards would render such contact inappropriate,” wrote commission secretary general Wilder Tayler in a letter to Heckman last week.
“While the eligibility of a particular candidate appointed could have potentially come before the Supreme Court (which indeed in the end it did), simply reminding officials of the requirements of applicable law would not in the ICJ’s view constitute ‘a comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process’ (as expressed in Principle 2.4 of the Bangalore Principles,” he added, referring to the Bangalore principles of judicial conduct.
In May, federal officials publicly suggested McLachlin had inappropriately contacted the Prime Minister’s Office the looming appointment of a Quebec judge to the Supreme Court. The allegations suggested McLachlin had lobbied against Nadon’s appointment, which the government was suggesting was before the courts. McLachlin clarified her actions in a statement at the time. “At no time was there any communication between Chief Justice McLachlin and the government regarding any case before the courts,” the statement noted.
On July 29, 2013, according to her statement in May, 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 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 press release.
“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.”
In its letter last week, the commission, an organization comprised of up to 60 international judges and lawyers concerned about the respect for international human rights standards through the law, essentially accepted that version of the events.
“The ICJ has been provided with no evidence that the Chief Justice had any intention in contacting the Minister of Justice and the Prime Minister’s Office other than to alert them to the possibility that a legal issue could arise with the nomination of a Justice of the Federal Court in relation to the eligibility requirements of the Supreme Court Act,” wrote Tayler.
“The ICJ has not been provided with evidence that suggests that the Chief Justice either intended to or expressed a view on the merits of that legal issue or the merits of any individual.”
Tayler said McLachlin’s statements to the media after the issue arose “were consistent with international standards and within the scope and role of her office in defending the public confidence in the judiciary in light of the allegations she had been informed were then being made public, i.e. alleging that she had lobbied against a particular nominee.”
Tayler went on find a problem in Harper’s statement on May 1 about McLachlin in which he said neither he nor MacKay would ever call a judge about a matter that was or could be before the court.
“This was unfairly conflating the issue of the executive seeking to influence a court on the merits of a matter in litigation, with the Chief Justice reportedly seeking to alert the nominating authorities to the content of and the potential existence of an issue under the law, in the course of a nomination process in which consultation already takes place between different branches of government, and before the executive had made a three-person short list or nominated a candidate.”
Tayler urged Harper and MacKay to withdraw or apologize for their comments and review the law and practice for the appointment of judges. In particular, he referred to international standards that call “for the establishment of bodies that are independent of the executive, plural and composed (even if not solely) of judges and members of the legal profession.”
He also raised concerns about judicial independence.
“The ICJ considers that the criticism was not well-founded and amounted to an encroachment upon the independence of the judiciary and integrity of the Chief Justice,” he wrote.
It’s a comment University of Ottawa Faculty of Law professor Carissima Mathen found to be fair given the concerns about judicial independence.
“I think that the concern that’s raised by the whole interaction . . . is that they appeared to be drawing the court into a political battle and painting the court as a political adversary in a way that would encroach on the independence of the judiciary were the court to be seen in that particular light,” she says.
Mathen also agrees the government has other avenues to address the issue rather than making public comments about it. They include making a complaint to the Canadian Judicial Council, seeking McLachlin’s recusal from the Nadon matter before the Supreme Court, and, in the most extreme and unlikely of cases, trying to have a judge removed from office.
“I thought it was a very sober, measured letter,” she says of the commission’s response. Mathen also believes the letter carries significant weight. “It just gives another indication of the notoriety of this incident,” she says.
“This isn’t the kind of attention you want to have focused on Canada,” she adds.
Update 5pm: Comments from Mathen added