OTTAWA - Prime Minister Stephen Harper took direct aim at the chief justice of the Supreme Court of Canada on Friday, suggesting she inappropriately called him about a looming judicial appointment and potential court challenge.
At an event in London, Ont., the prime minister lashed out at critics and slammed the country’s top judge.
Harper suggested his government took the high road when questions were first raised about the eligibility of a Federal Court judge for a Quebec seat on the Supreme Court and he refused Chief Justice Beverley McLachlin’s call. Harper suggested it was akin to a minister inappropriately calling a judge over a case before the courts.
However, in response, McLachlin’s office released a timeline stating that “at no time was there any communication” between her and the government “regarding any case before the courts.”
Harper insisted Friday that McLachlin acted inappropriately, and suggested he acted within political norms that would see a minister fired for doing what she did.
“I did what was the appropriate thing. I sought legal advice from experts, both legal experts within the government of Canada and constitutional experts outside of government of Canada,” said Harper.
“There’s been some suggestion that rather than seek outside legal experts I should have talked to the judges themselves. Let me just be very clear, I would never do that,” said a visibly irritated Harper who made his declaration in advance of reporter’s even asking the questions.
“If people thought the prime minister or other ministers of the government were consulting judges on cases 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. I think that judges have to make their own decision based on the evidence that’s put before them.”
In French, Harper said: “I allowed the Supreme Court to make its own decision.”
Owen Rees, executive legal officer at the high court, said McLachlin met Harper on April 22, 2013 “as a courtesy” to give the prime minister Justice Morris Fish’s retirement letter.
“As is customary, they briefly discussed the needs of the Supreme Court of Canada.”
McLachlin later met on July 29 with the closed-door parliamentary committee struck to vet candidates for the replacement, and “provided the committee with her views on the needs of the Supreme Court.”
On July 31, 2013 after a cabinet shuffle saw Peter MacKay replace Rob Nicholson as justice minister, McLachlin’s office called his office and Harper’s chief of staff Ray Novak “to flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court.”
“Later that day, the Chief Justice spoke with the Minister of Justice, Mr. MacKay, to flag the potential issue. The Chief Justice’s office also made preliminary inquiries to set up a call or meeting with the Prime Minister, but ultimately the Chief Justice decided not to pursue a call or meeting.”
In her own statement, McLachlin said:
“Given the potential impact on the Court, I wished to ensure that the government was aware of the eligibility issue. 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.”
But Harper says he sees it otherwise.
He said he “disagreed” with the ultimate ruling by the high court that voided his appointment of Marc Nadon, a semi-retired Federal Court judge to the Supreme Court. Harper said the Nadon reference decision “will cause problems.”
“The reality is Supreme Court has decided that a Quebec judge at the federal court is a second class judge,” said Harper, repeating arguments that were made and rebutted at the court’s hearing into the Nadon reference case.
“All the other judges from all the other provinces have a possibility for promotion to the Supreme Court but not Quebec judges, they no longer have that right as other judges do.
“Obviously this will create problems for recruiting judges to a national, a very important institution and it’s difficult for me to understand how we can have a truly national institution such as the Supreme Court without Quebec representation.”
He said he also believes the Senate reference ruling by the high court has now blocked “any meaningful change” that Harper said is desired by “90 per cent of Canadians.”
Harper acknowledged that the court, since the 1982 repatriated constitution, has an “expanded role in judging the appropriateness of laws not just under traditional constitutional criteria but under the charter as well.”
“It is part of the dialogue in the democratic process: Parliament passes laws and courts occasionally strike them down or suggest alternatives and Parliament has a right to respond to that, so I guess I can say on some things you win on some things you lose. I guess we’ll just go from there,” he said.
University of Ottawa vice-dean of law Adam Dodek said Thursday there is “nothing unusual or untoward” about the chief justice speaking to the government during consultations for a new judge. All justice ministers have done so for the past decade — as long as governments have been semi-transparent about the historically opaque, and still deeply flawed, judicial appointment process.
But Dodek said it is “highly irregular” to see a dispute descend into “allegations of innuendo,” adding it risks damaging what has so far been “a positive working relationship between the Supreme Court and the executive branch” and threatens to deepen public cynicism about both elected officials and judges.