I’m going to suggest Stephen Harper had no idea the hornet’s nest he was stirring when he publicly characterized as “inappropriate” and “inadvisable” a phone call Chief Justice Beverley McLachlin made to the government regarding a vacancy on the Supreme Court.
I was sitting in a café in Morocco checking my e-mail and making sure I was up to date on what was happening back in Canada when I read the news reports of Harper’s comments. I imagine my shocked reaction was much the same as most of the rest of the Canadian legal world’s.
Within days, if not hours, current and former presidents of the Canadian Bar Association, law deans from across the country, other members of the profession, and even journalists were publishing articles in support of the chief justice and questioning the prime minister’s motives in saying a July 31 call from McLachlin — voicing her opinion there could be issues if Harper decided to appoint a Supreme Court justice from the ranks of the Federal Court to represent Quebec — was misguided. The PMO suggested such a call was out of bounds as would be any call from a judge to a minister on a case before the courts.
Thing was, the call was made on July 31. The government did not nominate/appoint Justice Marc Nadon to the SCC until the end of September. There was nothing before the courts when McLachlin made the call, which as an adviser to the government on nominations to her court would not be unusual during the selection process for a new justice. As she noted in a statement: “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.”
As Kirk Makin, former justice reporter at The Globe and Mail and contributor to this magazine, wrote recently: “A narrative is taking root of an activist court and a meddling Chief Justice, thumbing their noses at elected officials. But it is a false notion, far removed from the reality of a court populated by deferential judges and a Chief Justice whose signature traits are caution and restraint.” A strong response from the legal profession — and anyone else who cares about democracy in this country — was necessary.
But despite the support shown for McLachlin and a fair amount of condemnation aimed at Harper’s comments (and even his understanding of the relationship between the government and the judiciary), the PM never apologized. McLachlin and the court, in typical style, responded with facts and no hyperbole. What Harper did do was weeks later revise his version of the events surrounding the phone call. According to the Toronto Star, the PM changed his story to suggest he foresaw a court challenge and legal issue that he and his advisers were surprised at as it had never arisen before and thus was consulting with “outside” legal experts on a matter that was likely to end up being referred to the Supreme Court.
That was not exactly mea culpa or admission his comments unnecessarily cast aspersions on not only the court but the integrity of the chief justice of Canada. The whole process of Nadon’s questionable appointment (which in the end got a big thumbs down from the SCC bench and was just one of a series of recent rulings that did not go in the government’s favour) shows the government/prime minister/justice minister/anyone else in the ruling party who should know better that unwarranted attacks on the judiciary and its leaders won’t be tolerated. I’ve never quite seen the call to arms and swift action from the many spokes of the legal profession as there was in response to Harper’s accusations.
There will always be those who think judges are corrupt, that there’s a liberal agenda at large that will never support initiatives of the Conservative Party, that unelected judges should always have to bend to the will of elected politicians, that the legal profession protects its own, etc. Canadian society, in general, may take issue with particular decisions but as a whole appears to respect the judicial system (although most would probably like it to be more transparent, particularly the process for choosing new judges at almost every level of court). It’s times like this the profession needs to stand up and set the record straight. In this case, that was done is spades.