Chief Justice hits back at Prime Minister over claim of improper call

Chief Justice hits back at Prime
Minister over claim of improper
call
May 2, 2014
Sean Fine, Globe and Mail
An extraordinary showdown between Prime Minister
Stephen Harper and Supreme Court Chief Justice Beverley
McLachlin has intensified, with the jurist denying
wrongdoing, and disputing Mr. Harper’s recollection of the
facts.
The court issued a statement a little after noon on Friday,
defending itself against the top-level attack on its integrity:
“At no time was there any communication between Chief
Justice McLachlin and the government regarding any case
before the courts.”
The Prime Minister’s Office had levelled a serious, but
indirectly phrased, accusation the evening before – that
Chief Justice McLachlin tried to involve Mr. Harper in an
inappropriate discussion about a case that was either
before the court or that could come before the court. If
true, the longest-serving chief justice in the court’s history
might have to resign, or face the unheard-of prospect that
the House of Commons and Senate would unite to force
her off the bench.
before their court,” the release said. “The Chief Justice
initiated the call to the Minister of Justice. After the
Minister received her call he advised the Prime Minister
that given the subject she wished to raise, taking a phone
call from the Chief Justice would be inadvisable and
inappropriate.”
The case in question was the Supreme Court appointment
of Justice Marc Nadon, a member of the Federal Court of
Appeal. The Supreme Court Act does not expressly say that
Federal Court judges are eligible to fill one of the three
spots reserved for Quebec on the Supreme Court. (The
court ruled Justice Nadon ineligible in March, the first time
in a common-law country an appointed Supreme Court
judge had been rejected by a court as ineligible, according
to political scientist Carl Baar.)
The PMO’s statement follows a recent pattern of blaming
the judiciary for the government’s inability to move
forward on Senate reform, a key concern for many
Conservative voters. Last week, Mr. Harper called the
court’s ruling on the matter a “decision for the status quo,”
which he said almost no Canadian could support.
“The PM is imputing inappropriate interference to the
Chief Justice and it’s very personal, it’s superpersonal,”
McGill University law professor Robert Leckey said.
Responding to the PMO’s statement, the court said that
Chief Justice McLachlin’s contact with the Justice Minister
occurred on July 31 – two months before Justice Nadon
was chosen for the court. The court said she was simply
flagging the potential issue around the eligibility of a
Federal Court judge. It also said that her office had made
preliminary inquiries about contacting the Prime Minister,
but that the Chief Justice had decided against it – a much
different version from the PMO’s statement.
Until now, the Conservative government and the country’s
highest court had wrestled each other in the traditional
ways – in court filings and hearings. But after five rulings
in as many weeks in which the court rejected key elements
of the government’s agenda, something changed. Those
rulings, in sum, were a rejection of Mr. Harper’s long-held
views on Parliament’s supremacy.
Legal observers, including the Canadian Bar Association,
representing 37,000 lawyers and judges, said that they
found no fault with the Chief Justice, and that it is common
practice in Canada for chief justices to consult with
governments during the appointment process. John Major,
a former Supreme Court judge, called her contacts with the
government “innocuous.”
And then, on Thursday evening, Mr. Harper registered a
serious allegation against the Chief Justice in the court of
public opinion. And the conflict between the court and the
government moved on to uncharted ground.
“I don’t view it as calling about a case. It’s about the
operation of the court,” he said.
The Chief Justice, the Prime Minister’s Office said in a news
release, had tried to involve him in an inappropriate
conversation about a case.
Adam Dodek, a University of Ottawa law professor, said
that if the government felt the Chief Justice had acted
inappropriately, the Justice Minister had an obligation to
publicly challenge her ability to hear the case before it
began.
“Neither the Prime Minister nor the Minister of Justice
would ever call a sitting judge on a matter that is or may be
Fred Headon, president of the Canadian Bar Association,
said he hopes the PMO’s statement was based on a
1
misunderstanding. “It is troubling because it threatens to
discredit the chief and the institution of the court and by
extension the judiciary throughout Canada.”
Nadon spat between Harper, chief
justice McLachlin called
'disturbing'
CBC.ca
The association that represents lawyers in Canada is
calling on Prime Minister Stephen Harper to acknowledge
that the chief justice of the Supreme Court has done
nothing wrong.
The Canadian Bar Association says it's deeply concerned
about
the
public
spat
between
Harper
and Beverley McLachlin.
Late Thursday, Harper's office suggested McLachlin acted
improperly last July when she advised his office that Marc
Nadon, a Federal Court of Appeal judge, might not fit the
legal criteria set for Quebec appointees to the Supreme
Court.
McLachlin issued a statement saying all she wanted to
ensure was that the government was aware of the
eligibility issue, but didn't express any opinion on the
merits of the eligibility issue.
Bar association president Fred Headon says he hopes this
is a misunderstanding but is expressing concern that
Harper's comments on the disagreement, made on Friday,
could erode public confidence in the Supreme Court.
"Disagreement between PM & Chief Justice surprising &
disturbing; hopefully a misunderstanding," Headon wrote
on Twitter.
He says Harper should clarify publicly that McLachlin
acted appropriately.
Harper ended up nominating Nadon and McLachlin swore
him in last fall.
But constitutional lawyer Rocco Galati challenged the
appointment and the Supreme Court ruled in March that
Nadon did not meet the legislated eligibility requirements.
2
Stephen Harper’s dispute with
chief justice exposes frustration
with top court
May 02, 2014
Jason Fekete, Postmedia News
OTTAWA — An unprecedented public dispute between
Prime Minister Stephen Harper and the chief justice of the
Supreme Court of Canada has laid bare the federal
government’s frustration with the court’s decisions, just as
the Conservatives prepare to appoint a new Quebec judge
to the country’s highest court.
The spat between the Prime Minister’s Office and the
Supreme Court follows a string of defeats for the
government at the top court, and has opposition parties
accusing the Conservatives of effectively launching a smear
campaign against Supreme Court Chief Justice Beverley
McLachlin.
It also produces even more drama over the upcoming
selection of a new judge, after the court in March rejected
the government’s appointment of Marc Nadon.
McLachlin said Friday at no time did she try to intervene in
the Conservative government’s appointment of Nadon to
the top court, and insisted there was “nothing
inappropriate” in raising potential eligibility issues with
the government.
Harper also weighed in Friday on the matter, saying he
would never attempt to speak to judges about a case either
before the courts or one that could come before the courts.
The rift between the executive and judicial branches of
government was exposed Thursday when Harper’s office
said the prime minister refused to take a phone call from
McLachlin to discuss who is allowed to sit on the country’s
highest court.
The PMO said McLachlin attempted to contact the prime
minister about the process for filling the Quebec vacancy
on the Supreme Court, although the PMO did not explain
when she made the call.
The government appointed Nadon, a Federal Court of
Appeal judge, to the Supreme Court of Canada last October.
However, the appointment prompted a legal challenge and
the top court ultimately rejected the appointment in a
ruling released in March.
On Friday, just minutes after Harper addressed the issue at
a news conference, the Supreme Court issued a timeline of
facts and statement from McLachlin on the matter. The
court said that “at no time was there any communication
between Chief Justice McLachlin and the government
regarding any case before the courts.”
“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,” McLachlin said in a statement.
“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.”
On July 29, 2013, “as part of the usual process,” McLachlin
met with a parliamentary committee about filling the
vacancy and provided them with her views “on the needs
of the Supreme Court,” according to the statement from the
court.
On July 31, the chief justice called the office of Justice
Minister Peter MacKay and the prime minister’s chief of
staff, Ray Novak, “to flag a potential issue” about 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,” the
court said in the statement.
“The chief justice had no other contact with the
government on this issue.”
Harper noted Friday he sought advice from constitutional
and legal experts both inside and outside the government,
who said that federal court judges would be eligible to sit
on the Supreme Court of Canada.
The prime minister said there has been “some suggestion”
that he should have talked directly to the judges for their
advice on the issue, but he insisted that would be
completely inappropriate.
“Let me just be very clear that I would never do that,”
Harper told reporters at an event in London, Ont.
“I can tell you this, I think if people thought the prime
minister or other ministers of the government were
3
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,” he added.
between the two branches of government where
legislation is often reviewed by the courts.
“So I do not think that’s the appropriate way to go.”
“The dialogue is not always a happy dialogue in the sense
that the government wins cases and the government loses
cases,” Meehan said.
Harper also highlighted what he said is “an expanded role”
for the courts since 1982 in judging the appropriateness of
laws.
“I guess I would say, on some things you win and some
things you lose,” he said.
The rift between the PMO and Supreme Court has emerged
on the heels of the top court handing the Conservative
government a series of defeats in high-profile cases.
On Parliament Hill on Friday, Liberal MP Stéphane Dion
said senior Conservatives appear to have leaked
confidential information about the process for selecting a
Supreme Court justice.
There is also dialogue during the process for appointing a
judge to the Supreme Court, he said, explaining it’s “an
appropriate traditional consultation process.”
In its March ruling, the Supreme Court of Canada rejected
the Conservative government’s appointment of Nadon to
the high court because he didn’t meet the eligibility criteria
laid out in the Supreme Court Act.
The top court, in its 6-1 decision, also declared
unconstitutional the Conservative government’s recent
amendments to the Supreme Court Act, which had clarified
the selection criteria for jurists from Quebec to allow
Nadon to sit on the court.
“I think they are undermining the chief justice, maybe
because of vengeance. They are unhappy with the
decisions, and they lost their mind,” Dion said.
“The prime minister has a very vindictive style. He’s
attacking everything and up to now he did not go as far as
attacking the chief justice and the Supreme Court. But this
is what he is doing.”
NDP House leader Peter Julian said the PMO was implying
the chief justice tried to directly interfere in Nadon’s
appointment while the matter was before the court, when
that was not the case.
Robert Goguen, parliamentary secretary to MacKay, said
Friday in the Commons the chief justice tried to contact the
prime minister “during the selection process.”
Eugene Meehan, former executive legal officer to previous
chief justice Antonio Lamer and a past national president
of the Canadian Bar Association, said duelling press
releases between the chief justice and PMO “is certainly
unusual.”
However, he said there is a continuing dialogue that goes
on between the courts and the government, including a
traditional annual meeting between the chief justice and
federal justice minister and constitutional dialogue
4
Marc Nadon: la juge en chef avait
mis en garde Ottawa
2 mai 2014
Hélène Buzzetti, Le Devoir
Le juge Marc Nadon a été nommé par le gouvernement
conservateur à titre de troisième juge québécois,
nomination qui a été contestée par un avocat torontois
avant d'être invalidée par la Cour suprême.
Ottawa — Le premier ministre Stephen Harper et son
ministre de la Justice avaient été avertis que la nomination
du juge Marc Nadon à la Cour suprême du Canada
risquerait de poser problème. Et l’avertissement n’est pas
venu de n’importe qui ! Il a été servi par nul autre que la
juge en chef de cette même Cour, Beverley McLachlin.
Dans une rare sortie publique, la Cour suprême du Canada
a confirmé jeudi que Mme McLachlin a contacté
directement le ministre de la Justice, Peter MacKay, ainsi
que le chef de cabinet de Stephen Harper, Ray Novak, au
sujet « de l’admissibilité d’un juge d’une cour fédérale » à
titre de juge québécois. « À cause de l’impact institutionnel
sur la Cour, la juge en chef a avisé le ministre de la Justice,
M. MacKay, de l’enjeu potentiel avant que le gouvernement
ne nomme son candidat pour le poste à la Cour. Son
bureau a aussi avisé le chef de cabinet du premier
ministre, M. Novak. La juge en chef n’a exprimé aucune
opinion à propos du mérite de cet enjeu », indique par
courriel le porte-parole de la Cour suprême, Owen Rees.
Tard en soirée jeudi, le bureau du premier ministre a
indiqué à La Presse canadienne qu’il avait refusé de
répondre à l’appel de la juge sur l’avis de M. MacKay, selon
qui il aurait été «mal avisé et inapproprié» de le faire.
Lorsque le gouvernement fédéral pourvoit un poste à la
Cour suprême, il soumet une liste de cinq candidats
potentiels à un comité de députés qui doivent en évaluer le
mérite. Ils ramènent la liste à trois candidats. Il est
pratique courante, lors des travaux secrets de ce comité,
que la juge en chef comparaisse pour expliquer les besoins
de son banc. Elle prend à ce moment connaissance des
candidatures considérées.
Selon nos informations, Mme McLachlin a à cette occasion
mis les députés en garde contre les candidatures
québécoises provenant d’un tribunal fédéral. Toujours
selon nos informations, il est toutefois exceptionnel que la
juge ait aussi pris la peine de contacter les bureaux du
ministre et du premier ministre. Dans les coulisses du
gouvernement, on parle d’un geste « particulier ».
Le juge Marc Nadon a quand même été nommé par le
gouvernement conservateur à titre de troisième juge
québécois, nomination qui a été contestée par un avocat
torontois, Rocco Galati. Elle a été invalidée par la Cour
suprême au motif qu’ayant siégé à des tribunaux fédéraux
pendant plus de 20 ans, M. Nadon ne se qualifiait pas à
titre de juriste du Québec.
Partis d’opposition
Tous les partis d’opposition interrogés ont estimé que les
conservateurs ont récolté ce qu’ils avaient semé. « Ils
auraient dû comprendre dès cet instant qu’effectivement,
la nomination du juge Nadon était inconstitutionnelle
»,résume le bloquiste André Bellavance.
Le chef du NPD, Thomas Mulcair, dit ne pas être « surpris »
que le gouvernement ait été averti qu’il allait faire « erreur
».« Est-ce que M. Harper écoute ? Il n’écoute jamais rien. »
Pour le libéral Stéphane Dion, l’avis de la juge en chef ne
signifie pas pour autant que le ministre MacKay aurait dû
s’abstenir de nommer Marc Nadon. « S’il tenait à tout prix à
cette nomination, en tant que ministre responsable, il
aurait dû faire un renvoi à la Cour suprême avant de
nommer le juge. »
Le ministre Peter MacKay a voulu minimiser cette
intervention de la juge en chef. « Il n’est pas singulier pour
moi de parler avec Mme McLachlin »,a-t-il dit tout en
refusant d’expliquer la nature de cette conversation. Il
rappelle qu’il avait aussi obtenu un avis juridique de deux
ex-juges de la Cour suprême (Ian Binnie et Louise
Charron) qui lui avaient dit, au contraire, que cette
nomination était acceptable. Preuve, selon lui, qu’il était
approprié d’aller de l’avant.
Ingérence ?
Le National Post, qui le premier a ébruité cette affaire
jeudi, fait état d’insatisfactions dans les coulisses
conservatrices à l’égard de la Cour suprême à cause d’une
succession de récents jugements leur étant défavorables
(nomination de Marc Nadon, réforme du Sénat,
prostitution, commission des valeurs mobilières, etc.).
Selon le National Post, certains conservateurs feraient
courir le bruit que Mme McLachlin a affirmé que le
gouvernement Harper a causé plus de tort à la Cour que
tout autre gouvernement dans l’histoire du Canada. Le
bureau de Mme McLachlin dément cette allégation. Le
5
ministre MacKay a refusé de se prononcer sur « des
commentaires superflus qui laisseraient croire à une
certaine animosité ».
Mais la juge a-t-elle outrepassé ses pouvoirs en appelant le
ministre et le bureau de M. Harper ? Non, répondent les
trois experts consultés par Le Devoir. Stéphane Beaulac,
professeur de droit à l’Université de Montréal, estime
notamment que « c’était approprié. Ça confirme qu’en
amont, l’information venait de plein d’endroits qu’il y avait
un doute sur la légalité de cette nomination ». Le doyen
adjoint à la Faculté de droit de l’Université d’Ottawa, Pierre
Thibault, s’avoue « un peu surpris » par cette
communication, mais ne la trouve pas inappropriée dans la
mesure où elle portait sur un sujet qui concerne la juge en
chef et sur lequel elle est déjà consultée. « Ce n’est pas du
tout de la même nature que ce que raconte Frédéric
Bastien dans son livre La bataille de Londres [sur un
contact qui serait survenu entre la Cour et le
gouvernement à propos d’un avis sur le point d’être
rendu]. » Le constitutionnaliste Ned Frank ne voit pas de
problème non plus. L’Association du Barreau canadien
n’a pas voulu se prononcer.
Par ailleurs, le remplaçant de M. Nadon se fait toujours
attendre. Le ministre MacKay a indiqué que c’est parce
qu’il voulait consulter le nouveau ministre de la Justice du
Québec. Mais il a aussi laissé entendre qu’il pourrait
attendre en août, puisqu’un autre siège québécois se
libérera à ce moment.
***
Un salaire à rembourser
Marc Nadon n’a jamais siégé à la Cour suprême bien qu’il
ait touché son salaire (342 800 $ par an) pendant que son
sort était pris en délibéré. Comme le jugement à son sujet
annule sa nomination à la Cour suprême, il est considéré
comme n’ayant jamais quitté son poste de juge à la Cour
fédérale d’appel. Il doit donc rembourser son salaire à la
Cour suprême, mais récupérer celui du tribunal fédéral.
Combien doit-il retourner ? La Cour suprême étudie
encore la question, a-t-on indiqué au Devoir cette semaine.
Avec Marie Vastel
6
Guerre de mots entre les pouvoirs
exécutif et judiciaire
3 mai 2014
Marie Vastel, Le Devoir
La juge en chef Beverly McLachlin et le premier ministre
Stephen Harper s’affrontent au sujet de la nomination de
Marc Nadon.
Ottawa — Le ton monte entre les conservateurs et la Cour
suprême. Le premier ministre et la juge en chef se sont
livrés à une guerre inhabituelle entre pouvoir exécutif et
judiciaire vendredi, en se répliquant l’un l’autre sur la
place publique quant à la bienséance des conversations qui
ont précédé la nomination du juge Marc Nadon à la Cour
suprême.
On apprenait jeudi que la juge en chef Beverley McLachlin
a averti les bureaux du ministre de la Justice et du premier
ministre que la nomination du juge Nadon au plus haut
tribunal du pays risquait de poser problème.
En matinée vendredi, Stephen Harper a scandé qu’il aurait
été « très inapproprié » qu’il accepte de discuter du choix
de Marc Nadon avec des juges qui seraient appelés à se
prononcer sur le sujet.
« Si la population pensait qu’un premier ministre, un
ministre de la Couronne, consulte des juges sur des cas
devant les tribunaux — ou pire, qu’un premier ministre
consulte des juges sur des cas qui iront certainement
devant les tribunaux avant d’entendre les arguments, je
pense que toute l’opposition, tous les médias et toute la
communauté juridique seraient bien choqués par un tel
comportement », a martelé Stephen Harper, visiblement
irrité.
La veille au soir, son bureau avait lancé les premiers
reproches, en affirmant que le premier ministre ou le
ministre de la Justice Peter MacKay « n’appelleraient
jamais un juge en exercice au sujet d’une affaire qui est
portée devant son tribunal ou qui pourrait éventuellement
l’être ».
M. Harper s’est targué vendredi, de passage à London en
Ontario, d’avoir plutôt consulté des experts
constitutionnels au sein de son gouvernement et à
l’externe, lesquels étaient tous d’accord selon lui « que la
pratique de considérer les juges de la Cour fédérale n’est
pas un problème ».
Mais moins d’une heure après la sortie du premier
ministre, la Cour suprême a répliqué en publiant son
deuxième communiqué en deux jours, arguant qu’« il n’y a
à aucun moment eu quelque communication que ce soit
[…] au sujet d’instances devant les tribunaux ». Mme
McLachlin a appelé le ministre MacKay fin juillet alors qu’il
étudiait la liste de candidats potentiels, afin de « signaler
une possible difficulté relativement à l’admissibilité des
juges des cours fédérales » à occuper l’un des postes
réservés au Québec. La juge en chef aurait songé à appeler
le premier ministre, mais aurait laissé tomber, selon le
tribunal.
« Selon la coutume, les juges en chef sont consultés durant
le processus de nomination, et il n’y a rien d’inopportun à
soulever une possible difficulté susceptible d’influer sur
une éventuelle nomination », a fait valoir Mme McLachlin
— une déclaration publique rarissime de la part de la juge
en chef.
L’Association du Barreau canadien (ABC) s’est d’ailleurs
portée à la défense de la juge, vendredi, se disant «
préoccupée » par les propos tenus par le premier ministre
et son bureau depuis jeudi. Car ceux-ci minent « la
crédibilité de l’institution, une institution essentielle à la
démocratie », a fait valoir le président de l’ABC Fred
Headon, en entretien téléphonique.
D’autant plus que ces critiques lui semblent « sans
fondement sérieux ». « La juge en chef a un rôle légitime
dans les consultations lorsque cela vise un poste vacant à
la Cour suprême. Il n’y a rien d’inapproprié à ce qu’elle
partage ses préoccupations avec le gouvernement », a-t-il
répliqué.
Rare querelle
L’échange de tirs entre M. Harper et la juge en chef a fait
bondir l’opposition. Et les experts conviennent que la
situation est inhabituelle.
« Ce n’est pas du tout dans la tradition canadienne d’avoir
ce genre de combat de coqs entre le chef du gouvernement
et la chef du pouvoir judiciaire, a commenté Stéphane
Beaulac, professeur de droit à l’Université de Montréal.
C’est une opération qui commence à ressembler beaucoup
à du “ Cour suprême bashing ”. Ça semble être revanchard.
»
Une lecture partagée par la néodémocrate Françoise
Boivin. « Le but clair, net et précis du gouvernement […]
c’est d’essayer maintenant de “ cochonner ”, excusez
l’expression, la Cour suprême comme entité parce qu’ils
7
sont mauvais perdants », a-t-elle reproché, en rappelant
que le tribunal a non seulement invalidé la nomination du
juge Nadon, mais aussi mis à mal la volonté des
conservateurs de réformer seuls le Sénat et de mettre sur
pied une commission nationale des valeurs mobilières.
Stéphane Dion a déploré à son tour un affrontement « sans
précédent ». Le libéral s’est dit inquiet de voir que l’avis de
la juge en chef émis lors d’un processus confidentiel ait été
révélé aux médias pour « salir » Mme McLachlin. « Cela
mine le processus pour l’avenir », a-t-il prévenu en
expliquant que des témoins seraient dorénavant « très
réticents à parler puisqu’ils n’auront pas l’assurance de la
confidentialité tant qu’on aura ce gouvernement ».
La Cour suprême a invalidé la nomination du juge Nadon,
fin mars, au motif qu’ayant siégé à des tribunaux fédéraux
pendant 20 ans M. Nadon ne se qualifiait pas aux sièges
réservés à des juristes du Québec. M. Harper a déploré que
cette décision fait des juges québécois à la Cour fédérale «
des juges de deuxième classe ». Car ceux-ci n’ont pas accès,
contrairement à leurs collègues du reste du pays, à la Cour
suprême.
Une interprétation qui est juste, théoriquement, mais dont
il ne faut pas exagérer les risques, selon M. Beaulac. « Ça ne
s’est jamais présenté depuis 135 ans. »
8
L'ABC s'inquiète de la polémique
entre Harper et la juge en chef
samedi 03 mai 2014
Valérie Beaudoin, La Presse Canadienne
OTTAWA - Le premier ministre Stephen Harper devrait
reconnaître que la juge en chef de la Cour suprême,
Beverely McLauchlin, n'a rien fait de mal, affirme
l'Association du Barreau canadien (ABC).
L'organisme s'est dit profondément inquiet de la
polémique publique ayant éclaté entre M. Harper et Mme
McLachlin à la suite du rejet de la candidature de Marc
Nadon par les juges de la Cour suprême.
Le premier ministre a accusé Mme McLachlin d'avoir agi
de façon «inappropriée» en avisant son cabinet que Marc
Nadon n'était pas admissible à un siège à la Cour suprême
selon les critères de la Loi sur la Cour suprême.
Dans un courriel, Mme McLachlin a dit qu'elle a contacté le
ministre de la Justice, Peter MacKay, pour l'aviser des
problèmes potentiels qui pourraient découler de la
nomination d'un juge de la Cour fédérale pour occuper
l'une des trois places réservées au Québec sur le banc. Elle
a ajouté qu'elle a fait cette démarche avant le choix du juge
Nadon et n'avait exprimé aucune opinion sur comment
cette question devait être tranchée, ni fait de
commentaires sur le juge Nadon.
Le président de l'ABC, Fred Headon, dit espérer qu'il s'agit
d'un malentendu. Il craint aussi que les commentaires de
M. Harper n'amoindrissent la confiance de la population
envers la Cour suprême. Selon lui, le premier ministre
devrait dire publiquement que Mme McLachlin a agi de
façon appropriée.
9
PMO snubs lawyers’ request for
clarity on allegation against Chief
Justice
May 4, 2014
Sean Fine and Kim Mackrael, The Globe and Mail
The Prime Minister’s Office is rejecting a call from
Canada’s legal community to clarify its statement about the
Supreme Court, leaving unresolved an allegation that the
Chief Justice behaved improperly.
The unprecedented dispute comes as the country’s top
court prepares for additional constitutional challenges to
laws that were passed by the Conservative government.
The court agreed last month to hear a case dealing with
mandatory minimum sentences for illegal gun possession,
while another Conservative law forcing criminals to pay a
victim surcharge fee has been flouted by some judges and
may reach the Supreme Court.
Fred Headon, president of the Canadian Bar Association,
said on Sunday that he is concerned the recent comments
from the PMO could undermine the public’s faith in
Canada’s judicial system and called for Prime Minister
Stephen Harper to clarify the matter publicly. Those
comments come from a statement issued by the PMO
Thursday night suggesting that Chief Justice Beverley
McLachlin had improperly tried to contact the Prime
Minister regarding the government’s decision to appoint
Justice Marc Nadon to the Supreme Court.
A separate statement from the Chief Justice’s office said the
contact between her office and the Prime Minister’s Office
had occurred during the selection process last summer –
when candidates were being considered for the Supreme
Court but before anyone had been chosen.
Mr. Headon said it does not appear as though the Chief
Justice acted improperly when she flagged a potential issue
during the appointment process. “We would like the
government to say that the comments they have made
should not have been interpreted as if the [Chief Justice]
did anything wrong,” Mr. Headon said. The Bar Association
represents 37,000 lawyers and judges.
Asked on Sunday if the PMO planned to clarify its earlier
statement in light of concerns raised by the legal
community, a spokesman for Mr. Harper indicated that it
does not. “For the record, the statement was issued in
response to media queries,” Jason MacDonald wrote in an
e-mail. “I have no additional comment.”
The dispute came to light after the National Post asked the
Chief Justice to respond to an allegation – reportedly from
senior Conservatives – that she had lobbied against Justice
Nadon’s appointment.
The Chief Justice’s office denied that she had done so in a
statement that was later shared with other reporters, and
the PMO subsequently issued a statement of its own,
indicating the Chief Justice had contacted the Minister of
Justice, who then advised the Prime Minister not to take a
phone call from her because doing so would be
“inadvisable and inappropriate.”
The PMO statement prompted another response from the
Chief Justice’s office, explaining that the contact with the
Justice Minister and the PMO occurred in April and July of
2013 – well before Justice Nadon was selected to fill a
vacant seat at the Supreme Court.
Dennis Baker, a political scientist at the University of
Guelph, said he believes it is possible that the Chief Justice
made a minor error by trying to contact the Prime Minister
after she was consulted by the committee responsible for
selecting the next Supreme Court justice and after she had
flagged a potential issue to the Justice Minister.
“If you repeat a warning – and you are the one who
ultimately decides the issue – such warnings can easily
take on a different character,” he said.
However, Prof. Baker added that such a mistake – if it was
a mistake – is very minor and occurred with enough grey
area to be defensible. “It surely does not warrant the
prominence and attention the [Prime Minister] seems to
want to draw to it,” he said.
Follow us on Twitter: Kim Mackrael @kimmackrael, Sean
Fine @seanfineglobe
The Advocates’ Society, an association that promotes
professionalism in the justice system, issued an open letter
to the Prime Minister on Sunday calling comments from
the PMO “unfounded and regrettable” and urged the Prime
Minister to publicly correct the record.
10
Supreme Court of Canada –
Harper, Chief Justice in spat
May 4, 2014
Markham Hislop, Beaconnews.ca
Judge Marc Nadon rejected by Supreme Court of Canada
The association representing lawyers is calling on Stephen
Harper to acknowledge the chief justice of the Supreme
Court of Canada has done nothing wrong.
The Canadian Bar Association says it’s deeply concerned
about the public spat between Prime Minister Harper and
Beverely McLachlin.
Harper has accused McLachlin of acting improperly last
July when she advised his office that Marc Nadon, a Federal
Court of Appeal judge, might not fit the legal criteria set for
Quebec appointees to the Supreme Court of Canada.
McLachlin issued a statement saying all she wanted to
ensure was the government was aware of the eligibility
issue, but didn’t express any opinion on the merits of the
eligibility issue.
Bar association president Fred Headon says he hopes this
is a misunderstanding but is expressing concern that
Harper’s comments could erode public confidence in the
Supreme Court of Canada.
He says Harper should clarify publicly that McLachlin
acted appropriately.
Harper ended up nominating Nadon and McLachlin swore
him in last fall.
But constitutional lawyer Rocco Galati challenged the
appointment and the Supreme Court of Canada ruled in
March that Nadon did not meet the legislated eligibility
requirements.
11
Bar alarmed at ‘extraordinary’
situation between Harper,
McLachlin
May 5, 2014
Glenn Kauth, Canadian Lawyer Magazine
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.”
“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
12
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.
finalement pas le droit de siéger en tant que juge de la
Cour suprême.
Me Galati estime que la juge McLachlin est une personne
d’une grande intégrité, qui avait parfaitement le droit de
soulever la question de l’admissibilité de Marc Nadon
auprès du bureau du premier ministre et du ministère de
la Justice.
Il accuse Stephen Harper de faire des déclarations ridicules
et totalement inappropriées à l’égard de la juge en chef.
L’Association du Barreau canadien a également
demandé à Stephen Harper de reconnaître publiquement
que Beverley McLachlin n’avait pas mal agi.
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.”
Des propos de Harper sont jugés
inappropriés
5 mai 2014
La Presse Canadienne
MONTRÉAL – Un avocat torontois, Rocco Galati, se dit
choqué par la critique récente formulée par le premier
ministre Stephen Harper envers la juge en chef de la Cour
suprême du Canada, Beverley McLachlin.
Vendredi, M. Harper a reproché à la juge McLachlin d’avoir
mal agi en informant le cabinet du premier ministre en
juillet dernier que le juge de la Cour d’appel fédérale Marc
Nadon pouvait ne pas répondre aux critères juridiques
exigés pour être nommé à titre de juge du Québec à la Cour
suprême.
M. Harper a recommandé la nomination de Marc Nadon
qui a ensuite été assermenté par la juge McLachlin.
Mais l’avocat Rocco Galati a contesté cette nomination et le
plus haut tribunal du pays a statué que Marc Nadon n’avait
13
Canadian Bar Association: Deeply
Concerned About Spat Between
Harper And Beverley McLachlin
The Canadian Press, 2014
Beverly McLachlin, Chief Justice of the Supreme Court of
Canada, delivers a speech in Ottawa, Tuesday, February 5,
2013. McLachlin insisted Friday there was nothing wrong
with how she and her office consulted with the federal
government regarding a presumptive nominee to the high
court's ranks. THE CANADIAN PRESS/Fred Chartrand
OTTAWA - The association that represents lawyers in
Canada is calling on Prime Minister Stephen Harper to
acknowledge the chief justice of the Supreme Court has
done nothing wrong.
The Canadian Bar Association says it's deeply concerned
about the public spat between Harper and Beverley
McLachlin.
Harper has accused McLachlin of acting improperly last
July when she advised his office that Marc Nadon, a Federal
Court of Appeal judge, might not fit the legal criteria set for
Quebec appointees to the Supreme Court.
McLachlin issued a statement saying all she wanted to
ensure was the government was aware of the eligibility
issue, but didn't express any opinion on the merits of the
eligibility issue.
Bar association president Fred Headon says he hopes this
is a misunderstanding but is expressing concern that
Harper's comments could erode public confidence in the
Supreme Court.
He says Harper should clarify publicly that McLachlin
acted appropriately.
Harper ended up nominating Nadon and McLachlin swore
him in last fall.
But constitutional lawyer Rocco Galati challenged the
appointment and the Supreme Court ruled in March that
Nadon did not meet the legislated eligibility requirements.
14
Harper’s comments on chief
justice ‘totally inappropriate,’
says lawyer who challenged
Nadon appointment
May 5, 2014
Benjamin Shingler, Canadian Press
The Toronto lawyer who first challenged the appointment
of Justice Marc Nadon says Prime Minister Stephen
Harper’s statements toward the head of the country’s top
court are “totally inappropriate.”
Rocco Galati says he believes Supreme Court Chief Justice
Beverley McLachlin was right to warn the Conservative
government that Nadon, a Federal Court of Appeal judge,
might not fit the legal criteria set for Quebec appointees to
the Supreme Court.
Galati said in an interview Harper should take much of the
blame for the unprecedented public spat between the chief
justice and the prime minister.
“I am shocked by the depravity of the prime minister in
now making these ridiculous statements with respect to
the chief justice, who is a person of integrity and had every
right to raise this with the justice minister,” Galati said
Sunday.
“The chief justice has not done anything wrong by raising
the flag. In fact, one of my complaints was that nobody had
raised the flag before I went to court.”
On Friday, Harper accused McLachlin of acting improperly
last July when she advised his office and Justice Minister
Peter MacKay of her concerns.
“I think if people thought that the prime minister, other
ministers of the government, were consulting judges
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,” he said in
London, Ont.
Harper ended up nominating Nadon, a semi-retired 64year-old with a specialty in maritime law, and McLachlin
swore him in last October.
Galati then challenged the appointment in court.
In March, the top court agreed by a 6-1 margin that Nadon
did not meet the eligibility requirements, rejecting the
wishes of the Conservative government.
Given that MacKay and McLachlin discussed Nadon’s
nomination last summer, Galati said the Harper
government was “hoodwinking” the public when it claimed
to be taken aback by the court’s decision.
A statement from the Prime Minister’s Office at the time
said it was “genuinely surprised” by the court’s rejection of
Marc Nadon.
Harper said last week he consulted constitutional and legal
experts both within and outside the government, and they
believed Nadon was eligible.
Jason MacDonald, a spokesman for Harper, said Sunday the
prime minister “believes he took the right actions, and he
stands by his comments.”
But Galati isn’t the only one to raise concern about last
week’s public spat between Harper and the chief justice.
The Canadian Bar Association also called on Harper to
acknowledge the chief justice has done nothing wrong.
The group’s president Fred Headon said Friday he hopes
the dispute is a misunderstanding and worried that
Harper’s comments could erode public confidence in the
Supreme Court.
Still, in Galati’s view, McLachlin should also bear some
responsibility for letting the controversy reach this stage.
He said she should not have sworn Nadon in as a Supreme
Court justice if she thought he wouldn’t be eligible.
“I don’t think the chief justice should be left off the hook in
this sense — she should never have administered the
oath.”
“So I do not think that’s the appropriate way to go.”
McLachlin replied in a statement saying she only wanted to
ensure that the government was aware of the eligibility
issue, but didn’t express any opinion on its merits.
15
MacKay repeats allegations
against top court judge
May 5, 2014
Sean Fine, The Globe and Mail
Prime Minister Stephen Harper and Justice Minister Peter
MacKay breached confidentiality rules and tried to
intimidate judges when they publicly criticized Supreme
Court Chief Justice Beverley McLachlin, opposition parties
say.
“Does the Attorney-General consider that it is part of his
job to ensure that there are never any attempts to
intimidate the courts in our country?” New Democratic
Party Leader Thomas Mulcair asked Mr. MacKay in the
House on Monday.
protect all participants and candidates in the selection
process of Supreme Court judges.
The five members of an all-party committee that produces
a short list of three candidates for the Prime Minister to
choose from are required to sign an oath of confidentiality.
So are the “witnesses” who appear before the committee –
high-ranking lawyers and judges who give their views on
the candidates. Indeed, so secretive is the process that one
of its members, New Democrat Francoise Boivin, even
refuses to say who those witnesses were.
“The Prime Minister … publicly breached the
confidentiality of the selection process for Supreme Court
judges,” Mr. Casey told the House. “How can anyone,
including the minister [of justice], have any faith in the
process after what the Prime Minister has done?”
More Related to this Story
Mr. MacKay responded that the process had been the most
inclusive one ever for the Supreme Court.
Mr. MacKay responded by defying calls from the legal
community to withdraw the allegation against the Chief
Justice made by the Prime Minister’s Office last Thursday.
Instead, he repeated it.
The government’s consultations with the Chief Justice are
an expected part of the appointment process, Mr. Casey
said.
“My office was contacted by the office of the Chief Justice.
After I spoke with her on that call I was of the considered
opinion that the Prime Minister did not need to take her
call. Neither the Prime Minister nor I would ever consider
calling a judge where that matter is or could be before the
court of competent jurisdiction.”
The PMO made the same assertions in a news release last
Thursday, and said that on Mr. MacKay’s advice, Mr.
Harper had declined to take a call from the Chief Justice.
The Supreme Court followed with a statement of its own
saying the Chief
Justice had been trying to flag the potential issue involving
the eligibility of a candidate – two months before he was
chosen.
“I would suggest a Chief Justice will be less candid and will
be silent if they know that what they say is going to be
widely publicized.”
The accusation of attempted intimidation was also raised
by six former presidents of the Canadian Bar Association,
including Yves Fortier, a former United Nations
ambassador appointed by Progressive Conservative prime
minister Brian Mulroney. “These circumstances leave
concerns that the Prime Minister’s statements may
intimidate, or harm the ability of the Supreme Court of
Canada to render justice objectively and fairly – even when
the government of Canada chooses to be a litigant before
it,” the six said in an op-ed article written for The Globe
and Mail.
Follow Sean Fine on Twitter: @seanfineglobe
That candidate, Justice Marc Nadon of the Federal Court of
Appeal, was eventually ruled ineligible for one of the three
Quebec spots on the court.
The Supreme Court found he did not have current Quebec
qualifications as defined under the Supreme Court Act.
Sean Casey, the Liberal Party’s justice critic, said the Prime
Minister had breached confidentiality rules designed to
16
Harper’s disrespect for the
Supreme Court harms the
workings of government
May 5, 2014
CBA PRESIDENTS, The Globe and Mail
This statement is made by eleven former presidents of the
Canadian Bar Association: L. Yves Fortier of Montreal;
Thomas G. Heintzman of Toronto; Simon V. Potter of
Montreal; Susan McGrath of Iroquois Falls; D. Kevin Carroll
of Barrie; Bernard Amyot of Montreal; Paul Fraser of
Victoria; Daphne Dumont of Charlottetown; Guy Joubert of
Winnipeg; Rod Snow of Whitehorse; and William Johnson of
Regina.
The recent comments by Prime Minister Stephen Harper,
claiming that the Chief Justice of Canada attempted an
inappropriate conversation with him, demonstrate a
disrespect by the executive branch for the judicial branch
of our constitutional democracy, and for the Chief Justice
of Canada as the most senior member of the Canadian
judiciary. This is so despite the fact that the discussion in
question involved a possible new appointment to the
Supreme Court of Canada, a topic well within guidelines
for appropriate conversations between prime ministers
and chief justices.
The judicial branch is one of the three independent
components of Canada's constitutional democracy, the
other two being the legislative and the executive branches.
Our system can operate effectively only if each component
is respectful and courteous in its relations with the others.
The courtesy and respect that these relationships require
are particularly important for the judicial branch because
it must ultimately judge the constitutionality of the
conduct of the other two branches and, yet, at the same
time, must on a day-to-day administrative level have
dialogue with them. Furthermore, the judicial branch, and
judges generally, do not have the ability to defend
themselves if those very relationships are used as grounds
for attack.
discussions occurred well before the nomination of Justice
Marc Nadon. They were perfectly in line with the sort of
courteous discussions which have historically occurred
and which Canadians would expect to occur between the
judiciary and the executive with respect to judicial
appointments.
In contrast, the recent statements by the Prime Minister
were made nine months after the conversations in
question occurred, long after the Prime Minister could
have dealt with any aspect of those discussions if there had
been any good-faith reason to do so. The Prime Minister’s
statements were made only after the government had been
a litigant in appeals before the Supreme Canada, leaving
the impression that the statements were aimed at the
Court as a reaction to the result of the decisions in those
appeals -- conduct in which no respectful private litigant
should engage.
As recent press reports demonstrate, these circumstances
leave us concerned that the Prime Minister’s statements
may intimidate or harm the ability of the Supreme Court of
Canada to render justice objectively and fairly -- even
when the government of Canada chooses to be a litigant
before it. In addition, the statement threatens to lead to
abandonment of the fruitful and necessary respectful
relationships between the Supreme Court of Canada and
the two other branches of government and a refusal by the
Court, and all courts, to have any dealings with the other
two branches for fear of retribution to which the judicial
branch cannot in any seemly fashion respond fully.
As former presidents of the Canadian Bar Association,
we ask the Prime Minister to remedy this situation in a
way which will demonstrate to our judiciary and to
Canadians at large that he respects the independence of
our courts and will treat with due courtesy the Chief
Justice of Canada.
The events in April to July 2013 demonstrate the usual and
respectful relationship between the judicial branch and the
other two branches of government. In April 2013, the Chief
Justice, quite properly and according to long-standing
tradition, provided her input to the appropriate
parliamentary
committee
about
proposed
new
appointments to the Supreme Court of Canada. In July, she
provided her input to the Canadian government. These
17
Une critique injustifiée
5 mai 2014
LaPresse.ca
Les auteurs sont des anciens présidents du Barreau
canadien. Ils dénoncent les récentes déclarations du
premier ministre Harper à propos de la juge en chef du
Canada.
Les récents commentaires du premier ministre Harper
accusant la juge en chef du Canada d'avoir tenté de tenir
une conversation inappropriée avec lui dénotent un
manque de respect évident de la part de l'exécutif envers
la
branche
judiciaire
de
notre
démocratie
constitutionnelle, et en particulier envers la représentante
ultime de la magistrature canadienne, la juge en chef de
notre Cour suprême.
Un tel manque de respect est d'autant plus inquiétant que
la conversation se voulait à propos d'un possible
remplacement au niveau de sa Cour, un sujet amplement
dans les limites d'une conversation appropriée entre un
premier ministre et sa juge en chef.
La magistrature est l'un des trois piliers indépendants de
la démocratie constitutionnelle canadienne, les deux
autres étant le législatif et l'exécutif. Notre système ne peut
fonctionner efficacement que si chaque branche est
respectueuse des pouvoirs des deux autres. Cette
déférence et ce respect mutuels sont d'autant plus
importants que ce sont les magistrats qui décident
ultimement de la constitutionnalité des gestes des deux
autres.
Ceci ne devrait pourtant pas les empêcher de dialoguer de
façon quotidienne à propos des mesures administratives
requises pour assurer leur saine administration. Qui plus
est, la branche judiciaire, et les juges en général, n'ont pas
la capacité de défendre leur conduite en ces matières,
surtout lorsque ces relations font l'objet d'attaques ou de
critiques.
Les événements survenus entre avril et juillet 2013
démontrent le respect traditionnel entre la magistrature et
les deux autres composantes du gouvernement. En avril
2013, la juge en chef, de façon tout à fait appropriée et
selon la tradition établie, a apporté sa contribution à la
Commission parlementaire chargée des nouvelles
nominations à la Cour suprême du Canada. En juillet, elle a
fait part de ses vues au gouvernement du Canada. Ces
discussions eurent lieu bien avant la nomination du juge
Nadon et se sont déroulées en parfaite symbiose,
empreinte de cette courtoisie traditionnelle à laquelle les
Canadiens sont en droit de s'attendre entre la magistrature
et l'exécutif en ces matières.
Un manque de respect
À l'inverse, les récentes déclarations du premier ministre
ont été faites, elles, neuf mois après que ces conversations
aient eu lieu, et bien après que le premier ministre ait pu
avoir raison d'agir en toute bonne foi à propos de quel
aspect que ce soit de ces conversations. Au contraire, ces
déclarations ont été faites uniquement après que le
gouvernement se soit présenté devant la Cour suprême à
titre de partie, laissant la distincte impression que ces
déclarations visaient la Cour en réaction aux décisions
rendues dans ces pourvois, conduite bien évidemment
répréhensible pour toute partie qui se respecte dans le
cadre d'un litige.
Comme l'ont démontré certains récents échos relevés dans
la presse, un tel comportement laisse craindre que le
premier ministre, par ses déclarations, puisse chercher à
intimider la Cour suprême du Canada ou encore miner sa
capacité de rendre justice de façon objective et équitable,
surtout lorsque le gouvernement choisit de se présenter
devant elle pour adjuger d'un litige auquel il est partie
prenante.
Au surplus, une telle attitude risque de compromettre la
nécessaire collaboration respectueuse entre la Cour
suprême et les deux autres branches de gouvernement, et
de mener au refus de la magistrature d'entretenir quelque
relation que ce soit avec elles, de peur de représailles
auxquelles le pouvoir judiciaire ne sera en aucune mesure
capable de répondre adéquatement.
En tant qu'anciens présidents de l'Association du
Barreau canadien, nous demandons au premier ministre
Harper de remédier à cette situation en démontrant à la
magistrature et à l'ensemble des Canadiens son respect
pour l'indépendance de nos tribunaux et la courtoisie
élémentaire qui est due à la juge en chef du Canada.
L. Yves Fortier, Montréal;
Thomas G. Heintzman, Toronto;
Simon V. Potter, Montréal;
Susan McGrath, Iroquois Falls;
Bernard Amyot, Montréal;
D. Kevin Carroll, Barrie;
J. Guy Joubert, Winnipeg;
Rodney A. Snow, Whitehorse;
Paul Fraser, Victoria;
Daphné Dumont, Charlottetown
18
CTV Power Play: Harper takes on
top court
May 5, 2014
Canadian Bar Association President Fred Headon weighs
in on the PM's public 'spat' with the Supreme Court Chief
Justice Beverly McLachlin.
http://www.ctvnews.ca/ctv-newschannel/video?clipId=357953
CBC As it Happens
May 5, 2014
Supreme Court of Canada Justice Fight
More on the showdown between the Harper government
and the Chief Justice of the Supreme Court.
http://www.cbc.ca/asithappens/episode/2014/05/05/m
onday-afghans-vets-day-soldiers-with-ptsd-black-soxvideo-and-more/
19
Andrew Coyne: Harper courting
controversy by picking
unprecedented fight with
Canada’s top judge
May 5, 2014
Andrew Coyne, National Post
Watching the Harper government stumble from one
needless controversy to another — picking fights, settling
scores, demeaning institutions and individuals alike in the
pursuit of no discernible principle or even political gain —
one has had the distinct impression of a government, and a
Prime Minister, spinning out of control.
But with the Prime Minister’s astonishing personal attack
last week on the Chief Justice of the Supreme Court,
Beverley McLachlin, the meltdown has reached Lindsay
Lohanesque proportions. Nothing in the long catalogue of
Stephen Harper’s bad-tempered outbursts has seemed
quite so extravagantly reckless, if only because it was so
calculated.
It is one thing to savage a political opponent or beat up on
a distinguished civil servant. But to accuse the nation’s
highest judge of professional misconduct — for that is
what was insinuated, if not quite alleged, an ethical breach
serious enough to warrant her resignation — is so illconsidered, so destructive of both the court’s position and
his own, that it leaves one wondering whether he is
temperamentally suited to the job.
Let us be clear. There is nothing wrong with a Prime
Minister criticizing a decision of the Supreme Court, or a
general tendency in its rulings, so long as the disagreement
is in good faith and expressed as such. Indeed, on the last
two of five recent decisions to go against the government,
the references on Senate reform and Marc Nadon’s
appointment to the court, I happen to think the court got it
wrong. Alas, I am not a member of the Supreme Court, and
neither is the Prime Minister: we may disagree with the
court’s rulings, but it is they, and not we, who are
empowered to decide these matters. And rightly so.
Those anonymous Conservative MPs who have seized on
the controversy to grouse, yet again, that judges are
“making law” in defiance of the wishes of Parliament are
likewise within their rights, though they seem to
misunderstand basic principles of constitutional
government — as in the suggestion from some bright light
to the National Post’s John Ivison that the appropriate
response to the Nadon decision was to invoke the
notwithstanding clause. For a system of written law to
work, there must be an independent arbiter to interpret it;
if laws meant whatever the Prime Minister of the day
claimed they did, we would effectively be living under rule
by decree.
All the same, a little loose talk of “judicial activism” is good
clean fun, as far as it goes. What’s absolutely out of bounds
is to start casting aspersions on the personal integrity of
individual judges — let alone the Chief Justice. That wasn’t
the work of some bumptious Tory backbencher. It came
straight out of the Prime Minister’s Office.
The whole situation might have been avoided, of course,
had the Chief Justice never called the Justice Minister, but
confined her attempts to “flag” the possible legal issues
raised by the Nadon appointment to the panel of MPs
charged with vetting candidates for the court. That is a
long, long way, however, from any suggestion she did
anything improper. Yet that is the impression the Prime
Minister has laboured to plant in the public mind.
The first line of the statement his office released Thursday
night reads: “Neither the Prime Minister nor the Minister
of Justice would ever call a sitting judge on a matter that is
or may be before their court.” Lower down we learn that
the Justice Minister counselled the Prime Minister against
“taking a phone call from the Chief Justice” as that would
be “inappropriate.” (The Prime Minister’s spokesman later
repeated, in an email to Maclean’s magazine’s Aaron
Wherry, that it was “inappropriate” for the Chief Justice to
have “asked to meet/discuss with [the Prime Minister] an
issue that could ultimately end up before their court.”)
The statement neglected to mention the date of the call,
leaving observers to wonder whether she might have
called after Nadon’s appointment had been challenged in
Federal Court, or even after it had been referred to the
Supreme Court. That would indeed be highly improper. In
fact, as a statement from the Chief Justice’s office later
revealed, the call to the Justice Minister (she never called
the Prime Minister) was made July 31 of last year. That’s
two months before Nadon was appointed, and nearly three
months before the government referred the issue to the
court.
A parade of legal authorities have said she did nothing
wrong: the Canadian Bar Association, which has called
upon the Prime Minister to clarify his statement
accordingly; scholars such as the University of Ottawa’s
Adam Dodek (“There is nothing unusual about contacts
between the Chief Justice and the Minister of Justice and
20
the Prime Minister”); the former Supreme Court judge Jack
Major (“innocuous”).
But never mind. Suppose the Prime Minister were as
troubled by her actions as he now feels compelled to
advertise. Why did he wait nine months to raise it? Why
did he not, at a minimum, insist she recuse herself from the
reference? Why does he not, even now, bring proceedings
against her, or demand that she resign? We are left with
two possibilities. Either the Prime Minister knew the Chief
Justice had committed a serious ethical breach, and did
nothing about it. Or he knew, as he knows now, that she
did no such thing, but is content to smear her as if she had.
As I say, we’ve never seen anything quite like this, not even
from this Prime Minister. Which raises the question: at
what point do Conservatives of goodwill become
concerned about the long-term damage being done to their
party’s reputation under its present leadership?
Differences over policy come and go, but this kind of
behaviour, left unchallenged, will lead many people to
conclude that the institutions of government cannot be
safely entrusted to them.
21
Canada Is Corrupt When it Comes
to Choosing Judges
May 5, 2014
J.J. McCullough, Huffington post
Here's a fun fact you probably didn't know -- Canadian
judicial appointments are among the most corrupt in the
entire world.
On whether there's "a transparent procedure for selecting
national-level judges" Canada received a flat "no." Our
rating on whether "judges are appointed fairly" received
an astonishing 17. Angola got 25. Hell, Bangladesh got 83.
The Global Integrity people observed a reality Canadians
are taught to ignore: a political system in which senior
judges are appointed solely by the Prime Minister, with no
effort exerted whatsoever in making these appointments
publicly visible or democratically accountable.
True, they concede, the current government has started
convening a small parliamentary committee to vet
appointments to the Supreme Court. Yet this committee
"does not exist in law, but simply at the whim of the Prime
Minister" and was specifically constructed to have "no
power of any kind to resist let alone reject the Prime
Minister's appointment." All other judges, and the
members of most other senior quasi-judicial tribunals, are
selected "without any public process," period.
Official Canadian mythology dictates this secrecy equals
independence, which is to say, if ordinary Canadians or
their elected representatives -- basically anyone other than
the PM and whatever circle of flunkies have his ear -- were
allowed to properly scrutinize judicial nominees before
installation, the neutrality of the appointees would be
compromised. Opinions would be learned, some wouldn't
like what they heard, and the ideal of superhuman judges
free of any human bias or failing would be lost.
It's a logic that crumbles if you think about it for more than
a minute. Faith in an appointment process that's based
around not learning things in favour of blindly trusting the
man doing the picking is astonishingly naive and obviously
prone to abuse -- particularly if the man in question
delegates his powers to someone else entirely.
Yes, it gets worse. Because they're so busy with other
things, our prime ministers have taken to outsourcing
responsibility for judicial appointments to small
committees of non-government lawyers. The lawyers pick
names for the PM and expect a rubber stamp, which they
usually get.
Such cliquey committees are dominated by members of the
federal and provincial bar associations, and as such
constitute a muscular assertion of special interest control
over a critical government function. The tradition's helped
breed a culture in which Canada's lawyer-judicial complex
understands itself to be entirely self-governing, selfregulating, and self-perpetuating. One could say the
Canadian judiciary is barely a branch of the government at
all these days, but simply a free-floating thing
unaccountable to anyone but the lawyers who get jobs and
money from it.
Indeed, the fact that Prime Minister Harper's efforts to
democratize Supreme Court appointments have gone
nowhere -- why the parliamentary advisory committees
have been so pathetic and toothless -- can be directly
credited to the strength of the legal community's strident
campaigning against anything remotely resembling the
dreaded "American model" in which a candidate's fitness
for judicial appointment is assessed in (gasp!) an open
hearing where their resume and philosophy is permitted
to be scrutinized by folks other than their lawyer buddies.
Another good case study was the current Chief Justice's
eagerness to lobby Prime Minister Harper about a
supposed "issue" with the proposed appointment of Justice
Marc Nadon to the Supreme Court last year, as recent
gossip has now publicly exposed.
The controversy of Nadon's appointment centred around a
vague clause of the Supreme Court Act which left it
ambiguous whether the Court's Quebec seats had to be
filled by a current member of the Quebec bar (which
Nadon wasn't) as opposed to a former one (which Nadon
was).
In March, the Supreme Court itself ruled 6-1 that Nadon
was not qualified for an appointment. But we now know
the Chief Justice already decided that months earlier.
In defending her lobbying, Chief Justice McLachlin's
spokesman claimed her calls to the Prime Minister were
merely to raise concerns "well-known within judicial and
legal circles" about appointing a judge from Nadon's
background, which presumed there not only existed an
establishment consensus regarding what the vagaries of
the Supreme Court Act really meant, but that the Chief
Justice -- despite being only one vote on the court -- was
qualified to share it.
22
It was a tremendously revealing episode of both the singlemindedness of the Canadian legal community and its
expectation of preemptive veto over any idea (or judge)
that contradicts their conventional wisdom. The Canadian
Bar Association, needless to say, expects Harper to
apologize.
But the issue is much broader than a prime minister's
satisfaction or displeasure with specific court rulings.
Canada's judicial branch does not exist to uphold the
interests of lawyers' guilds or bow to their esoteric
groupthink. It exists to ensure that justice is done, and
when subjective ambiguities arise in laws and cases
(which, let's be clear, is often) they are settled through
debates that reflect a diversity of perspectives and
opinions representative of Canadian society as a whole.
Canada's closed-door, special interests-driven system of
judicial appointments may be efficient and it may be nonpartisan (though certainly not non-ideological), but it's
also a system whose unaccountable, cliquey nature is
fundamentally at odds with the substantially more
important legal principles of transparency and
impartiality.
Thankfully, as establishment figures like the Chief Justice
become ever-more brazen in asserting their imagined
privileges, we're beginning to get a clearer glimpse at a
disgraceful side of Canadian government that's gone
ignored for far too long.
23
Can PM quit picking fights?
May 5, 2014
Editorial: Langley Advance
There are some fights that Prime Minister Stephen Harper
should get into. Fights with the opposition, either the NDP
or the Liberals? Sure, definitely. Scrapping with your
political opponents is part of the democratic process.
Diplomatic spats with Russia, Iran, North Korea? Yes, we
expect harsh words used against corrupt and dictatorial
regimes.
The chief justice of the Supreme Court of Canada?
Maybe not.
The Prime Minister’s Office has thrown out the claim
against Chief Justice Beverly McLachlin, accusing her of
acting improperly. The case in question was the
nomination of Marc Nadon, a federal appeal court judge
who was appointed to the court, then bounced due to a
legal challenge. Nadon didn’t have the proper background
needed to take a seat on the court.
If this was a simple legal spat, that would be one thing.
There is nothing wrong with the Conservatives, or anyone,
from arguing their interpretation of the law. When they try
to drag the reputation of the chief justice into disrepute,
however, they had better have a good reason.
If there is a reason for this spat, the PMO has yet to reveal
it. In fact, it seems that the most likely reason is the string
of defeats the country’s top court has handed the
Conservatives in recent months.
The Conservatives are not getting much backing from the
legal profession. The Canadian Bar Association has said
it is deeply concerned about the spat, and wants Harper to
clarify that McLachlin acted appropriately.
It seems to follow a pattern of the PMO deciding that some
group or individual is an enemy and targeting them. This is
odious enough when it’s a public servant or person outside
of government. It’s far worse when it’s a direct attack on
the top court. The Tories need to rein in their leadership.
24
Harper accused of trying to
‘intimidate’ Supreme Court
justices
However, MacKay said that until the Supreme Court ruled
Nadon ineligible, there was nothing in the Act to prohibit
the appointment of a Federal Court judge to one of the
Quebec slots on the top bench.
May 6, 2014
Jeff Lacroix-Wilson, Ottawa Citizen
None of this impressed Mulcair. He said the government’s
moves were “a direct attempt to intimidate the Supreme
Court.”
OTTAWA – The Harper government faced accusations
Monday of trying to intimidate Canada’s top judges, as the
question of whether a Supreme Court chief justice can talk
to the government about judicial appointments spilled into
the House of Commons.
Last week, Harper accused McLachlin of inappropriately
trying to make an “inadvisable and inappropriate” phone
call to warn him that there might be an eligibility problem
with Nadon’s appointment.
“Does the attorney general consider that it is part of his job
to ensure that there are never any attempts to intimidate
the courts in our country?” NDP leader Tom Mulcair asked
Justice Minister Peter MacKay.
“The attorney general’s job is to defend the integrity of the
court system in our country, not to help the prime minister
attack the chief justice. Is our attorney general telling us
that he will be the henchman of the prime minister in this
unwarranted, unprecedented attack on the Supreme Court
and its chief justice?”
A chorus of critics and legal experts has criticized Stephen
Harper over the rhetorical war that broke out last week
between the prime minister and the chief justice of the
Supreme Court, Beverley McLachlin.
The Canadian Bar Association wants Harper to state
publicly that McLachlin did nothing wrong in trying to
raise an issue surrounding the nomination of a justice to
the top court.
But Harper’s office implied that McLachlin, Canada’s
longest-serving chief justice, had inappropriately
questioned the eligibility for the court of a Quebec
nominee, Marc Nadon.
Monday, MacKay escalated the feud, implying that the
Supreme Court itself went beyond the strict wording of the
law when it then went on to nix Nadon’s appointment. In
March, the court found Nadon ineligible to sit as one of
three Quebec judges on the Supreme Court because he
came from the Federal Court of Appeal.
The Supreme Court Act specifies that Quebec judges must
come from either the province’s Court of Appeal or
Superior Court, or have at least 10 years’ standing at the
Quebec bar.
Fred Headon, president of the Canadian Bar Association,
said the government’s comments could undermine the
nation’s trust in its top court.
But PMO spokesperson Jason MacDonald said MacKay and
Harper “stand by their comments.”
Former Justice Minister Irwin Cotler, now an opposition
Liberal MP, argued that contacting the government about
appointments was part of Mclachlin’s job.
“Consultations between a chief justice and minister of
justice are a normal part of the appointments process,”
Cotler said.
“The chief justice is a perfectly appropriate person to
provide the minister with input … particularly on the
administration of justice,” said Cotler. He said that at the
time McLachlin offered her advice, “Nadon had not even
been nominated … let alone appointed.”
Cutler said, “any time an officer of Parliament renders an
opinion that is adverse to the government, it responds by
attacking their credibility.”
McLachlin’s office said in a statement Friday that the chief
justice did not try to interfere in Nadon’s appointment. The
statement insisted there is “nothing inappropriate” in
raising issues with the government about the eligibility of
a nominee.
The Harper government has been at odds with several of
the top court’s decisions. For instance, aside from
rejecting the appointment of Nadon, the court recently
declared the government could not go about major
reforms to the Senate without a certain level of provincial
consent.
- With files from the Canadian Press.
25
PM’s enemies list? Here comes the
judge
May 6, 2014
Lawrence Martin, The Globe and Mail
The Prime Minister has been on the losing end of several
Supreme Court decisions in recent times. He lost on the
appointment of Marc Nadon. He lost on his bid for Senate
reform. Decisions have gone against him on his crime
legislation and on prostitution.
So, for someone who views the power of the court as
excessive to begin with, Stephen Harper’s frustration is
understandable. Progressives out to get him. Again!
But there’s something that doesn’t fit the picture. This is
Stephen Harper’s court. He appointed a majority of the
justices on it. He named five of the eight, with one more
pending. Another, Beverley McLachlin, was named to the
court by Tory Brian Mulroney. The Harper appointments,
as could be expected, have been more conservative in their
orientation than liberal. Yet they have still rendered
verdicts he opposes.
You might think this would temper his animosity toward
the court. But as we see in his feud with Chief Justice
McLachlin, not so. In his forceful assertion that the
executive should not be in communication with justices on
cases before the court, Mr. Harper had a point. Such could
be viewed as unseemly meddling, a blatant conflict of
interest. Jean Charest and the late John Munro are just two
ministers who had to resign for contacting judges.
Chief Justice McLachlin’s attempt to communicate wasn’t
to discuss a case before the court, however. It was on the
matter of eligibility of court candidates. As she and former
justice minister Irwin Cotler and other legal authorities
point out, it is customary practice to advise the
government on such matters.
Mr. Harper’s rejection of her call came last summer. The
news, curiously, only surfaced last week following all the
rebuffs the PM had taken on court decisions. His harsh
critique had the look of an attempt to tarnish the Chief
Justice’s integrity. It had the look of retribution.
protocol. It is calling on Mr. Harper to stand down from his
criticism of her.
No one should bet on that. Mr. Harper’s Democratic
Reform Minister, Pierre Poilievre, recently impugned the
integrity of the country’s chief electoral officer, Marc
Mayrand. Because of widespread national opposition, Mr.
Poilievre then had to stage an embarrassing retreat on the
election bill, which aimed at reducing the powers of the
chief electoral officer. On the heels of that, a further
shaming on the Supreme Court feud would be too much to
take.
The Prime Minister’s enemies list, which includes Mr.
Cotler and so many others, keeps growing – and reaching
higher levels. Must everyone submit to Mr. Harper’s will or
face retaliation? Do we have, as his former adviser Tom
Flanagan maintains, a predator as prime minister? Does he
not think there will be a reckoning?
In trying to understand it, a couple of considerations come
to mind. One is that these Conservatives constitute what
might be called Ottawa’s first real wedge government.
Other governments, including Tory ones, have sought to be
more representative. With this one, it’s divide and
conquer. It’s less about broadening the tent than
hardening the attitudes of those within. Others are seen as
enemies at the gate.
But the antagonism is fuelled by more than strategic
political imperatives. I recall interviewing David Emerson,
who had a unique perspective because he served in both
the cabinets of Paul Martin and Stephen Harper. There
were things he preferred about the Harper operation. But
one difference that alarmed Mr. Emerson was the degree
of visceral contempt he saw from Mr. Harper and his top
lieutenants toward those opposed to their beliefs. He’d
never seen anything like it. How could they harbour, he
wondered, so much venom?
The combination – a wedge government driven by such a
degree of animosity – makes for a potent mix. It’s why the
enemies list has kept growing. It’s why a woman as
honourable as the Chief Justice of our Supreme Court is
now on it.
Maybe Chief Justice McLachlin’s attempted clarification of
eligibility rules should have been done in a different way,
through lower channels. But, as the Canadian Bar
Association makes clear, there was no serious breach of
26
Harper alleges Supreme Court
Chief Justice broke key rule with
phone call
Chief Justice McLachlin, the country’s longest-serving chief
justice, who has been at the head of the court since 2000,
was giving a speech Thursday night on women and the law
at the University of Moncton, and a spokesman for the
court said she was not available to respond.
May 1, 2014
Sean Fine, The Globe and Mail
Prime Minister Stephen Harper has accused Supreme
Court Chief Justice Beverley McLachlin of breaching a basic
rule of her office, as a deepening conflict between the
government and the country’s highest court breaks out
into a public dispute.
But in a statement issued a day earlier, in response to a
reporter’s questions, her spokesman, Owen Rees, said she
had been consulted by the parliamentary screening
committee on the government’s short list of candidates
before the appointment was made, and commented on the
needs of the court. She had also raised the question of a
Federal Court judge’s eligibility with Mr. MacKay and the
Prime Minister’s chief of staff, Ray Novak, he said.
The Prime Minister’s Office publicly asserted that the Chief
Justice attempted to contact Mr. Harper about a court case,
and said that he refused to take her phone call when
Justice Minister Peter MacKay told him it would be
“inappropriate.”
Justice Nadon was (and remains) a judge on the Federal
Court of Appeal. No Federal Court judge had ever filled one
of the three spots on the court reserved for Quebec judges.
The Supreme Court Act did not specify expressly that
Federal Court judges were eligible.
The case involved Mr. Harper’s Supreme Court
appointment of Justice Marc Nadon, whom the court
eventually ruled ineligible. Both the public dispute
between a prime minister and a chief justice, and the
allegation itself, are unprecedented.
“The question concerning the eligibility of a federal court
judge for appointment to the Supreme Court under the
Supreme Court Act was well-known within judicial and
legal circles,” the statement from Mr. Rees said. “Because
of the institutional impact on the Court, the Chief Justice
advised the Minister of Justice, Mr. MacKay, of the potential
issue before the government named its candidate for
appointment to the Court. Her office had also advised the
Prime Minister’s Chief of Staff, Mr. Novak. The Chief Justice
did not express any views on the merits of the issue.”
“Neither the Prime Minister nor the Minister of Justice
would ever call a sitting judge on a matter that is or may be
before their court,” the Prime Minister’s Office said in a
statement released early Thursday evening.
“The Chief Justice initiated the call to the Minister of
Justice. After the Minister received her call he advised the
Prime Minister that given the subject she wished to raise,
taking a phone call from the Chief Justice would be
inadvisable and inappropriate. The Prime Minister agreed
and did not take her call.”
It does not specify when the alleged attempt at contact
occurred.
Any attempt at contact about a case would be a serious
breach of the separation between the judicial and
executive branches of government, without a known
precedent in Canadian history, according to Supreme
Court historian Frederick Vaughan.
“It’s absolutely unheard of that a judge would call a
member of cabinet or government in a case that is before
the court. It’s an inflexible rule,” he said, adding that he
thinks Chief Justice McLachlin would have to resign if she
broke that rule.
The Prime Minister’s statement said it was issued in
response to her statement.
Mr. Vaughan, author of The Supreme Court, a history of the
court published in 1984, said he flatly does not believe it. “I
don’t believe for a moment the Chief Justice would call the
Prime Minister about the appointment of a judge. And
especially Beverley McLachlin. This is pretty shoddy stuff.
All it does is cast aspersions on the Chief Justice.”
The government has lost five major cases at the Supreme
Court in the past six weeks, with only one voice of support
from the court’s eight sitting members, just once.
One Conservative MP said the government wants it made
clear it didn’t consult the Chief Justice on the Supreme
Court appointment. The Tories feel there should be a firm
wall between the bench and the decisions they make as to
who should sit on it.
27
PMO says Harper avoided
‘inappropriate’ call from chief
justice on Nadon
May 1, 2014
Mark Kennedy, Ottawa Citizen
Prime Minister Stephen Harper’s office says he chose not
to speak to the chief justice of the Supreme Court of
Canada about a planned appointment to the court after he
was advised such a conversation would be “inadvisable
and inappropriate.”
On Thursday, Harper’s office reacted to media reports
about how a staff member for Chief Justice Beverly
McLachlin had attempted to douse rumours that she
allegedly lobbied against the appointment of Marc Nadon
to the court — an appointment later overturned by the
court itself as unconstitutional.
“Neither the Prime Minister nor the Minister of Justice
would ever call a sitting judge on a matter that is or may be
before their court,” said the statement issued by Harper’s
office.
“The Chief Justice initiated the call to the Minister of
Justice. After the Minister received her call he advised the
Prime Minister that given the subject she wished to raise,
taking a phone call from the Chief Justice would be
inadvisable and inappropriate. The Prime Minister agreed
and did not take her call.”
The PMO statement came in the wake of a media report
about the matter.
McLachlin’s executive legal officer, Owen Rees, reportedly
told the National Post in a statement that she did not lobby
against the appointment but was consulted by a
parliamentary committee on the government’s short list
and the needs of the court.
“The question concerning the eligibility of a federal court
judge for appointment to the Supreme Court under the
Supreme Court Act was well-known in legal circles,” said
Rees.
“Because of the institutional impact on the Court, the Chief
Justice advised the Minister of Justice, Mr. (Peter) MacKay,
of the potential issue before the government named its
candidate for appointment to the Court. Her office also
advised the Prime Minister’s chief of staff, Mr. (Ray) Novak.
The Chief Justice does not express any views on the merits
of the issue.”
Neither did she make disparaging remarks about the
Conservative government, reported the Post. “She has
stated publicly on several occasions that mutual respect
between the branches of government — and their
respective roles — is essential in a constitutional
democracy,” said Rees.
In March, the top court rejected Nadon as Harper’s pick to
be a Supreme Court justice — something he first
announced last fall.
In the wake of an unprecedented ruling, the government
appeared flat-footed, saying it was “surprised” by the
development and was examining its “options.” Several
weeks later, the government still has not announced its
plans and the court is short one judge.
The landmark judgment by the high court nullified the
government’s appointment last October of Nadon, a
Federal Court of Appeals judge, on the grounds that he
didn’t meet the eligibility criteria laid out in the Supreme
Court Act.
The court also rejected as unconstitutional the
government’s attempt to bypass those rules by
retroactively amending the law. The Conservatives tried to
redefine the law to support Nadon’s appointment, but only
after it became clear his ascendance to the Supreme Court
bench faced legal and political challenges.
Opposition parties blasted the government for bungling
the appointment and urged Harper to quickly address
Quebec’s reduced voice on the court. One of the province’s
three seats on the court, which are guaranteed by the
Constitution, has remained empty since last summer.
The 6-1 decision was a stunning political defeat for the
Conservative government, the latest in a string of
constitutional decisions from the top court that have not
gone the government’s way. They include rulings over
supervised injection sites, the country’s prostitution laws
and a decision that struck down a Conservative
government law on day parole.
On Thursday, the Prime Minister’s Office said the
Department of Justice had sought outside legal advice from
a former Supreme Court justice on eligibility requirements
of federal court judges for the Supreme Court of Canada.
“This legal advice was reviewed and supported by another
former Supreme Court justice as well as a leading
28
constitutional scholar, and was made public. None of these
legal experts saw any merit in the position eventually
taken by the Court.”
Supreme Court chief justice
denies lobbying Harper regarding
Nadon
Sean Kilpatrick, The Canadian Press
LONDON, Ont. – Prime Minister Stephen Harper is insisting
there was nothing wrong with how he arrived at his
decision to nominate Marc Nadon to the Supreme Court of
Canada.
And in a remarkable public statement today, Chief Justice
Beverley McLachlin says her office discussed the
possibility of meeting with Harper about the nomination,
but ultimately decided not to pursue it.
Harper says he consulted constitutional and legal experts
both within and outside the government, and they agreed
there would be no problem in nominating Nadon, a semiretired Federal Court of Appeal judge from Quebec.
McLachlin, meanwhile, says she warned the government
about a “potential issue” regarding the eligibility of a
Federal Court judge from Quebec, but never offered her
opinion about whether it had merit.
Harper says it would have been “totally inappropriate” for
him to have consulted the Supreme Court justices
themselves about the appointment.
Harper also says the Supreme Court decision to reject
Nadon means that Federal Court judges from Quebec are
essentially ineligible to sit on the high court, a situation he
considers unfair.
On Thursday, Harper’s office issued a statement that
suggested McLachlin tried to speak to the prime minister
about his plan to nominate Nadon.
Justice Minister Peter MacKay has so far refused to
describe the conversation he had with McLachlin –
specifically, whether she indeed wanted to consult with
Harper.
“Clearly there was an issue over a pending appointment
and after having spoken to the chief justice, it was my
considered opinion that that call shouldn’t take place,”
MacKay said on his way today into an event at the
construction site of a new library in Halifax.
“It was ultimately (Harper’s) decision whether he spoke to
her or not, but I just felt as justice minister that it was not
an appropriate call.”
Thursday’s extraordinary statement was prompted by a
media report that said Conservative government members
have become incensed with the top court after a series of
stinging constitutional rebukes.
Among those government setbacks was the eventual court
ruling that Nadon was not qualified under the Supreme
Court Act.
The nine-member court has been short one justice for
almost a year as a result of the bungled appointment.
Harper’s chief spokesman issued a statement late
Thursday saying that McLachlin “initiated” a call to
MacKay to discuss the Nadon appointment at some point
during the selection process.
“After the minister received her call he advised the prime
minister that, given the subject she wished to raise, taking
a phone call from the chief justice would be inadvisable
and inappropriate,” Jason MacDonald said in the
statement.
“The prime minister agreed and did not take her call.”
The PMO’s statement was released while McLachlin was
participating in an event at the University of Moncton
where she was delivering a speech. She was unavailable
for comment Thursday.
Earlier, however, the Supreme Court’s executive counsel
issued his own extraordinary statement, saying
McLachlin’s advice had been sought by the committee of
MPs vetting possible Supreme Court nominees.
“The chief justice did not lobby the government against the
appointment of Justice Nadon,” said the statement from
Owen Rees, the court’s executive counsel.
“She was consulted by the parliamentary committee
regarding the government’s shortlist of candidates and
provided her views on the needs of the court.”
McLachlin’s office pointed out to both MacKay and the
prime minister’s chief of staff that appointing a Quebec
justice from the Federal Court of Appeal could pose a
29
problem under the rules – an issue Rees said was “wellknown within judicial and legal circles.”
Justice Nadon's appointment," as Ivison says a source had
told him.
Rees wrote that McLachlin “did not express any views on
the merits of the issue.”
"The chief justice did not lobby the government against the
appointment of Justice Nadon," Rees wrote. He said
McLachlin or her office flagged a potential problem to both
MacKay and the prime minster's chief of staff, Ray Novak,
but "did not express any views on the merits of the issue."
Beverley McLachlin, PMO give
duelling statements on Nadon
appointment fight
May 1, 2014
Leslie MacKinnon, CBC News
The Prime Minister's Office late Thursday suggested that
the chief justice of the Supreme Court tried
inappropriately to intervene in the process to appoint
Justice Marc Nadon, even though her advice came before
Nadon's appointment was announced and ultimately
would have saved the government an embarrassing defeat.
The appointment of Nadon, a respected Federal Court
judge, to replace retired Justice Morris Fish, eventually led
to an expensive reference to the Supreme Court about his
eligibility, and a public humiliation for Nadon.
Last month, the court issued an opinion that,
constitutionally, Nadon was not eligible to represent
Quebec because he had been a Federal Court judge in
Ottawa for the past 20 years, and was not a sitting Quebec
superior or appeals court judge, nor a current member of
the Quebec bar.
But months before the top court's decision, Chief Justice
Beverley McLachlin had already advised then-Minister of
Justice Peter MacKay about a "potential issue" in naming a
Federal Court judge to represent Quebec on the highest
court.
That information was made public Thursday, when, in an
unusual move, McLachlin's office publicly replied to
allegations she may have lobbied against Nadon's
appointment.
A statement issued by the Supreme Court's executive legal
officer, Owen Rees, explains McLachlin was consulted by
the special parliamentary committee that was tasked with
studying a short list of names drawn up by MacKay's office.
The statement from Rees was a response to a question put
by journalist John Ivison of the National Post asking for a
comment about whether McLachlin "lobbied against
Late Thursday, the Prime Minister's Office issued a
statement saying MacKay informed Prime Minister
Stephen Harper that taking a call from the chief justice
would be "inadvisable and inappropriate. The prime
minister agreed and did not take the call."
There is nothing in the statement from McLachlin's office
saying she wished to speak directly to Harper, and nothing
in the statement from the PMO, written by spokesperson
Jason MacDonald, that McLachlin in fact asked MacKay if
she could speak to Harper.
The PMO statement also says, "Neither the prime minister
nor the minister of justice would ever call a sitting judge
on a matter that is or may be before the court."
However, the time line indicates McLachlin called MacKay
at the end of July, shortly after she had spoken to the
selection committee examining a short list of candidates
for the court vacancy. At that point, there was no
nomination, let alone a court case.
Nadon wasn't appointed to the Supreme Court until two
months later on Sept. 30. The challenge to his nomination
came from a Toronto lawyer in a federal court a week
later.
It is not unusual for the chief justice to be consulted by the
special selection committee whose deliberations are
confidential. The committee consists of five MPs, three of
them from the government side of the House of Commons,
although in previous governments it also included legal
experts.
Not an unknown issue
The dubiousness of Nadon's eligibility to become a
Supreme Court judge was not exactly an unknown issue,
the statement from Rees implies.
When respected Federal Court Marc Nadon was appointed
to the Supreme Court, the court's chief justice had already
warned the government the choice of a federal court judge
to represent Quebec might raise constitutional problems.
(Sean Kilpatrick/Canadian Press)
30
"The question concerning the eligibility of a Federal Court
judge for appointment to the Supreme Court under the
Supreme Court Act was well known," Rees said.
Despite McLachlin's advice, the government commissioned
legal opinions about Nadon's appointment from two
retired Supreme Court judges, Ian Binnie and Louise
Charron.
Binnie, who now works as a private lawyer, was paid over
$7,000 for an eight-page opinion stating that Nadon was
eligible for the job because he had at an earlier point in his
career been a member of the Quebec bar for at least 10
years. Charron, who was paid over $4,000, agreed with
Binnie's opinion.
Binnie, who is out of the country, did not respond to emails
from CBC News.
That isn't the total sum the government paid for legal
opinions about Nadon's appointment. Documents tabled in
the Commons set out the costs of choosing and nominating
Nadon. The tab includes $80,894 for legal services and
another $152,294 for translation and other professional
services.
Minister touts views of former judges
During a scrum in the House of Commons foyer, MacKay
told reporters, "Look I am not going to get into private
discussions about the individuals who are eligible for the
Supreme Court."
But, MacKay added, "We had two former Supreme [Court]
justices who gave very clear opinions that suggested that
Federal Court judges from Quebec were eligible."
He did not address any opinion he may have received from
McLachlin, other than to say, "Whether she called me to
voice concerns that's her prerogative."
Françoise Boivin, the NDP's justice critic, said the
government tends to trash people who are the bearers of
bad news. "When they are stopped by the court, well, it is
not them who is wrong, it's everybody else," she said.
MP Sean Casey, speaking for the Liberals, said, "What
you've seen out of the government is nothing short of a
smear."
The fact the chief justice of the Supreme Court would issue
a rare statement to scotch rumours she had lobbied
against Nadon illustrates the tension between the top
court and the Harper government.
One legal expert says he's not sure where the current spat
is coming from.
"There is nothing unusual about contacts between the
chief justice and the minister of the justice and the prime
minister. Indeed, regular contact is healthy for the
relationship between the branches of government and the
administration of the country's top court," Adam Dodek,
vice-dean of the University of Ottawa law school, told The
Canadian Press.
"Every minister of justice in this Conservative government
and in its predecessor Liberal governments going back at
least 15 years has stated publicly that they have consulted
with the chief justice of Canada about appointments to the
Supreme Court of Canada. So where is the issue and where
is the problem here?"
But Emmett Macfarlane, who teaches political science at
the University of Waterloo, said in an interview, "It's not
for a judge in my view to insert themselves into the
political process, even if they are under the impression
that they are trying to ward off trouble and try to be
helpful."
When the court decided last month the federal
government could not unilaterally reform or abolish the
Senate, unless it had the consent of most, if not all, of the
provinces, Harper said the top court's decision was one
"for the status quo, a status quo that is supported by
virtually no Canadian."
Harper also let it be known he was disappointed with the
court's opinion on Nadon.
Yet when Nadon's appointment happened, the Supreme
Court didn't reject him, but welcomed him into its fold,
giving him an office and a salary.
It was a constitutional challenge from a relatively
unknown Toronto lawyer, Rocco Galati, who specializes in
terrorism cases, that started the legal process reversing
Nadon's appointment.
Clarifications:
This headline on this story has been updated from an
earlier version to avoid the impression that Chief Justice
Beverley McLachlin warned the government specifically
about Marc Nadon. In fact, she raised concerns about
appointing a Federal Court judge to represent Quebec
before Marc Nadon, a federal judge, was appointed. A
quote in the story from Prime Minister Stephen Harper has
also been expanded to clarify he was referring to lack of
31
public support for the "status quo" when it comes to the
Senate, not to the court's decision.
Attempt to smear Chief Justice an
affront to our constitutional
system
May 2, 2014
Errol Mendes, The Globe and Mail
A fundamental principle of democracy is that elected
governments understand and appreciate the workings of
checks and balances against their range of powers. In the
Canadian constitutional system, even if a government has a
majority in the House of Commons, a prime minister will
understand that his political goals will sometimes be
challenged by a range of actors in society from citizens to
the courts.
Unfortunately, since the Conservative Party under the
leadership of Prime Minister Stephen Harper was elected –
first to the position of a minority government in 2006 and
presently as a majority government – those that have
offered reasonable and legitimate advice and challenges to
the political and legal goals of the Harper government have
faced unprecedented smears from the highest ranks of the
party and the government.
The growing range of individuals that have had to endure
such smears have included: academics (myself included);
environmental groups labelled as extremists and radicals
funded by foreign entities; public servants just doing their
job, such as Linda Keen, the former head of the nuclear
safety watchdog, Peter Tinsley, the head of the Military
Police Complaints Commission and Richard Colvin, the
foreign service officer who testified on the treatment of
Afghan detainees; Chief Electoral Officer Marc Mayrand for
alleged bias; and, astonishingly, former auditor general
Sheila Fraser, who has faced innuendos of conflicts of
interest.
However, even this level of extreme anti-democratic
behaviour has been surpassed with the current attempted
smear against the Chief Justice of the Supreme Court of
Canada, Beverly McLachlin. The Prime Minister’s Office has
suggested that Ms. McLachlin inappropriately tried to call
Mr. Harper’s office about the appropriateness of selecting
Marc Nadon for the Quebec vacancy on the Court. PMO
spokesman Jason MacDonald asserted that the Prime
Minister rebuffed the call of the Chief Justice on the advice
of his justice minister. The spokesman asserted that the
Chief Justice initiated the call first to the Minister of Justice,
Peter MacKay, and that he advised Mr. Harper not to take
her call – which he concurred with. The implication of
these statements is that the Chief Justice acted
inappropriately, as according to the statement of Mr.
MacDonald: “Neither the Prime Minister nor the Minister
of Justice would ever call a sitting judge on a matter that is
or may be before their court.”
In contrast to this attempt to impugn the integrity of one of
the most distinguished jurists in Canadian history with a
global reputation for effectively presiding over some of the
most challenging legal and constitutional issues facing the
country, the actions of the Chief Justice could actually have
been in the best interests of the country and the Court.
It was perfectly legitimate for the Chief Justice to advise
Mr. MacKay on the consequences of appointing a judge
from the Federal Court for a Quebec seat. Indeed, what the
attempted smear does not reveal is that the Chief Justice
was consulted by the parliamentary committee screening
the short list of candidates and she provided her views on
the needs of the Court. Given her position, it would be
totally appropriate to go further and speak directly to the
Minister of Justice. Given the institutional impact on the
Court, it would be negligent for the Chief Justice not to do
so. According to the executive legal officer of the Court,
Owen Rees, at no time did the Chief Justice express any
views on the merits of the appointment of Mr. Nadon.
Likewise, it would also be negligent of the Prime Minister
either directly or through the advice of his Justice Minister
not to seek the views of the Chief Justice for appointments
to the Court, as other justice ministers and possibly prime
ministers in the past have done.
To then turn these consultations into an innuendo of
inappropriate lobbying by the Chief Justice is to endanger
one of the most important aspects of Canadian
constitutional democracy, the relationship of respect and
credibility between the judicial and executive arms of our
constitutional democracy. This should be the most
cherished of constitutional principles, even if the highest
court has ruled against the government on some of it most
cherished political goals. Democracy demands it.
32
John Ivison: Harper’s attack on
the Chief Justice qualifies as yet
another blindside hit
May 2, 2014
John Ivison, National Post
Stephen Harper is a repeat offender when it comes to
playing the man (or woman), instead of the puck, if they
cross him.
Chief Justice Beverley McLachlin is the latest in a long list
of people on the public payroll who have been hit by the
Harper Conservatives — a list that includes the
parliamentary budget officer, the chief electoral officer and
the former auditor-general.
Ms. McLachlin is eligible to remain Chief Justice for another
four years, so it’s possible the Conservatives are trying to
make life so uncomfortable that she decides to retire early.
But, while spite plays a role in the current war of words
between the offices of the Prime Minister and the Chief
Justice, Mr. Harper’s comments Friday in London, Ont.,
reveal a fundamental rift on how the country should be
run. This is not just a fight with the Chief Justice, it’s the
early rumblings of a battle with the Supreme Court as an
institution.
Mr. Harper raised the issue of the Charter of Rights, which
since 1982 has given the courts an expanded role in
judging the appropriateness of laws. “It is part of the
dialogue of the democratic process. Parliament passes
laws, courts occasionally strike them down or suggest
alternatives and Parliament has the right to respond to
that.
When I asked senior Conservatives about their feelings on
the Supreme Court this week, it provoked a dramatic
response. The Chief Justice involved herself in the
appointment process, lobbying against Justice Nadon,
perhaps because she had her own preferred candidate, it
was suggested.
The court hit back, saying that she did not lobby the
government on the Nadon appointment – she merely
called Peter MacKay, the Justice Minister, and Ray Novak,
the Prime Minister’s chief of staff, to advise there may be a
“potential issue” appointing a federal court judge to fill a
Quebec seat on the court.
After the National Post story ran Thursday, the Prime
Minister’s Office released its own statement, making it
clear it felt the advice from the Chief Justice was not
welcome. “Neither the Prime Minister nor the Minister of
Justice would ever call a sitting judge on a matter that is or
may be before the court.”
The statement said the Chief Justice had called Mr. MacKay.
He in turn called Mr. Harper and told him that taking a call
from the Chief Justice would be “inadvisable and
inappropriate.”
“The Prime Minister agreed and did not take her call.”
On Friday, Ms. McLachlin’s office issued a clarification of
the PMO’s clarification.
On July 31 last year, Ms. McLachlin called Mr. MacKay and
Mr. Novak to flag the potential eligibility issue but she said
she did not express any opinion on the merits of the
eligibility.
“I guess I would say that on some things you win and on
some things you lose.”
“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,” she said.
That sounds far more resigned to our constitutional reality
than it was. He went on to rant some more about the
decision of the Supreme Court to overturn the
appointment of Marc Nadon to its ranks.
The Chief Justice’s office also made preliminary inquiries
to set up a call or meeting with the Prime Minister but
ultimately she decided not to pursue a call or meeting, her
office said.
Mr. Harper is more Old Testament – an eye for an eye –
than New Testament – turn the other cheek. The Nadon
reversal, even more so than the court’s decision to strike
down the prostitution law, Senate reform or judicial
sentencing, continues to fester with the Prime Minister.
As a reminder, this is not two schoolgirls having a tiff —
it’s two of the top three Canadians on the order of
precedence.
33
It would be derisory, were it not so serious. Underlying the
back and forth are conflicting views of how Canadians
should be governed.
Mr. Harper maintains he was within his rights appointing
Justice Nadon and does not seem prepared to let it lie.
“This decision will cause problems,” he said Friday. “The
Supreme Court has decided that a Quebec judge at the
federal court is a second-class judge. All the other judges
from all the other provinces have the possibility of
promotion to the Supreme Court but not Quebec judges —
they no longer have the right as others do. And obviously
that will create problems in terms of recruiting judges to a
national, very important institution.”
So if the Prime Minister won’t let it lie, what is he going to
do in future disagreements with the court?
His options are limited but there is one course of action
that is already being whispered by Conservatives who
want to see the government assert the sovereignty of
elected officials — namely, use of the override power in
the Charter, the notwithstanding clause. It has been used
by three provinces (Alberta, Quebec and Saskatchewan)
and one territory (Yukon) but never by the federal
government. The clause was included in the Charter to
protect the British tradition of parliamentary supremacy,
to avoid giving the courts the final word.
I asked a Cabinet minister if it was being discussed, to
which he replied: “Not seriously.” Which means it is being
discussed.
Its time may come, even if it seems it has not arrived yet. In
the interim, the Prime Minister seems intent on
questioning the integrity of the Chief Justice.
In London on Friday, he needed little encouragement to
point out that he sought advice on Justice Nadon from
outside legal experts, not other judges.
“I think if people thought the prime minister or other
ministers of the government were consulting judges on
cases 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.” The clear implication is that he
believes Ms. McLachlin was trying to meddle in the
appointment process in an inappropriate fashion.
Unless Peter MacKay tells us the Chief Justice spoke in
favour of her preferred candidate, this qualifies as yet
another blindside hit by the Prime Minister.
34
Harper says he did nothing wrong
in nominating Marc Nadon to
Supreme Court
May 2, 2014
Bruce Cheadle, The Canadian Press
OTTAWA - Prime Minister Stephen Harper says he ignored
a legal caution from Canada's chief justice on the eligibility
of a potential Supreme Court nominee last summer
because to listen to such advice would have been
improper.
In an unprecedented prime ministerial rebuke of the top
court, Harper unloaded Friday on Chief Justice Beverley
McLachlin, one day after government leaks and an
extraordinary exchange of public statements revealed a
deep rift between the two.
Speaking to reporters in London, Ont., Harper said
McLachlin acted improperly last July in advising his office
that Marc Nadon, a Federal Court of Appeal judge, might
not fit the legal criteria set for Quebec justices under the
Supreme Court Act.
At the time, Nadon was one of three judges on a short list
of potential appointees being vetted by a panel of MPs.
That panel had sought McLachlin's advice.
"I can tell you this," said a clearly irked Harper, who
appointed Nadon last September despite the legal caution.
"I think if people thought that the prime minister, other
ministers of the government, were consulting judges
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," he said.
"So I do not think that's the appropriate way to go."
McLachlin's office responded with its own public
statement, the second in as many days.
McLachlin spoke to Harper "as a courtesy" last April to
give him the retirement letter of justice Morris Fish, said
the statement.
She met with the parliamentary vetting committee on July
29 "as part of the usual process," then contacted Justice
Minister Peter MacKay and the Prime Minister's Office on
July 31 "to flag a potential issue regarding the eligibility of
a judge of the federal courts to fill a Quebec seat on the
Supreme Court."
McLachlin's office said it contacted the PMO to make
"preliminary inquiries" about setting up a call or meeting
with Harper on the matter, "but ultimately the chief justice
decided not to call pursue a call or meeting."
"Given the potential impact on the court, I wished to
ensure that the government was aware of the eligibility
issue," McLachlin is quoted in the release.
"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."
Harper's office, meanwhile, issued a statement late
Thursday saying the prime minister was advised by his
justice minister that accepting a call from McLachlin would
be "inadvisable and inappropriate."
"The prime minister agreed and did not take her call," said
the statement from communications director Jason
MacDonald.
Harper ended up nominating Nadon, a semi-retired 64year-old with a specialty in maritime law, last Sept. 30 and
he was duly sworn in to the top court by McLachlin on Oct.
3.
However constitutional lawyer Rocco Galati challenged the
appointment, and in March this year the Supreme Court
ruled 6-1 that Nadon did not meet the legislated eligibility
requirements.
Court watchers are agog.
Emmett McFarlane, an assistant professor at the
University of Waterloo who has written a critical history of
the Supreme Court entitled "Governing From the Bench,"
said the public dispute is unprecedented in Canadian
history.
McFarlane said court experts may debate whether
McLachlin was imprudent in contacting the Prime
Minister's Office about her concerns.
"It was perhaps unwise, that's all I'll say," he said in an
interview.
35
"But for the prime minister to engage in this kind of
spitting match with the court and with the chief justice is
absurd."
Harper said Friday he consulted constitutional and legal
experts both within and outside the government, and they
agreed there would be no problem in nominating Nadon.
And he said the Supreme Court decision to reject Nadon
means that Federal Court judges from Quebec are
essentially ineligible to sit on the high court, a situation he
considers unfair.
"The reality is the Supreme Court has decided that a
Quebec judge at the Federal Court is a second class judge,"
said Harper.
He said Quebec jurists may no longer aspire to a Federal
Court appointment because it will rule them out of a shot
at the Supreme Court.
"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 ... without Quebec representation," said Harper.
The war of words was prompted by a media report
Thursday that said Conservative government members
have become incensed with the top court after a series of
stinging constitutional rebukes, including the Nadon
rejection.
36
Chief Justice could have avoided
catfight with PMO by recusing
herself from Nadon ruling
May 2, 2014
Christie Blatchford, PostMedia
It was pretty clear the judge was a little aghast, that he’d
been approached in this manner: Such is the traditional
nature of the bench in this country that judges are meant
to be neutral, incommunicado but for what they say in
open court and in their decisions, and utterly
unapproachable.
No one is supposed to contact a judge about a case — no
one, particularly politicians. The judiciary is meant to be
separate and apart from the executive branch of
government.
Lest anyone doubt the sanctity of this principle, they might
remember what happened in 1990 when Jean Charest,
then a federal sports minister, suddenly resigned from
Cabinet when he acknowledged having phoned a Quebec
Superior Court judge who was about to rule on a track and
field case.
Not so long ago, I was at Old City Hall in provincial court in
Toronto, covering a case which had been sitting for a day
or two here and there, and then was off for a couple of
weeks, and then back up again.
The question now in the air is, is that a two-way street? Is
it okay for judges to call politicians and if it is, under what
circumstances and what are the parameters?
Harper’s attack on the Chief Justice qualifies as yet another
blindside hit
Stephen Harper is a repeat offender when it comes to
playing the man (or woman), instead of the puck, if they
cross him.
Chief Justice Beverley McLachlin is the latest in a long list
of people on the public payroll who have been hit by the
Harper Conservatives — a list that includes the
parliamentary budget officer, the chief electoral officer and
the former auditor-general.
Ms. McLachlin is eligible to remain Chief Justice for another
four years, so it’s possible the Conservatives are trying to
make life so uncomfortable that she decides to retire early.
But, while spite plays a role in the current war of words
between the offices of the Prime Minister and the Chief
Justice, Mr. Harper’s comments Friday in London, Ont.,
reveal a fundamental rift on how the country should be
run. This is not just a fight with the Chief Justice, it’s the
early rumblings of a battle with the Supreme Court as an
institution.
Read more from John Ivison …
This day, after one of those breaks, the judge in question
walked in and promptly announced that in the interim,
he’d received an unsolicited letter from someone
purporting to have information about the matter before
him.
He immediately handed the letter to counsel, and then,
after some minor edits, read it aloud so it would be on the
public record.
The issue is alive because of a catfight going on between
Stephen Harper and his PMO and Supreme Court of Canada
Chief Justice Beverley McLachlin, described in judgments
simply as the “CJ,” and her office.
The story was first broken by the National Post’s John
Ivison, who reported Thursday on the frustration in the
Harper government over a so-called string of losses at the
court in recent months.
Most of these alleged losses may be far less significant than
the press, which writes about each one as an egregious
slap to the face of Mr. Harper, describes them. But there’s
little doubt that to the backbenchers and conspiracy
theorists within this government, the affront may feel real.
In any case, Mr. Ivison reported that rumours were about
that the CJ had lobbied against the appointment of Marc
Nadon, a judge on the Federal Court of Appeal, a move
which was later smartly over-turned by the Supreme Court
in a 6-1 decision.
Ms. McLachlin fired back through her executive legal
officer, Owen Rees — because judges don’t speak directly
of course; just having Mr. Rees do so is rare enough — who
denied she had lobbied at all.
The CJ, he said, had merely advised Justice Minister Peter
MacKay and the PM’s chief of staff, Ray Novak, about a
potential “issue” surrounding the potential appointment of
any Federal Court judge.
Ms. McLachlin, Mr. Rees said, was concerned about the
potential “institutional impact” on the court — about to be
a member short of its nine-person complement, Justice
37
Morris Fish having announced his retirement in April last
year — if the issue were to blossom into a problem.
This was last July, two months before Mr. Harper
announced Judge Nadon’s appointment.
What the CJ predicted, of course, is exactly what happened.
The same day in October that Judge Nadon was sworn in, a
pesky Toronto lawyer named Rocco Galati filed a challenge
to the appointment in the Federal Court.
(If it all sounds just a little incestuous, that’s only because
it is. The judiciary in this country is a very small club.)
In any case, that led in short order to the government itself
referring two questions to the SCC: Could the government
appoint a person like Judge Nadon, a former Quebec
lawyer but not a member of Quebec’s Superior Court? And
if it couldn’t, could it change the law to make it so?
In March, the court’s decision came down, with the
majority finding the Nadon appointment unconstitutional,
and only one judge, Michael Moldaver, dissenting.
In his first statement, Mr. Rees said that the question of a
federal court judge’s eligibility was “well-known within
judicial and legal circles,” and maybe it was.
But as for the claim that the Chief Justice didn’t express
any views on the merits of such an appointment, it would
seem to me that if Beverley McLachlin recognizes an issue
in a matter, it may very well be tantamount to expressing
an opinion – in other words, was she not saying the judicial
equivalent of, “Houston, we may have a problem here”?
The real surprise, given the cautious nature of the
Canadian bench, and how routinely judges speak of the
need for justice not only to be done but to be manifestly
seen to be done, may be that the Chief Justice didn’t recuse
herself once the issue she flagged was before the court.
A quorum at the Supreme Court is five judges. They could
have muddled by without her, and the result still would
have been 5-1 against the government.
National Post
After Mr. Rees’s statement to Mr. Ivison, the PMO issued
one of its own late Thursday, saying that the CJ had tried to
speak to the PM, but that upon the advice of Mr. MacKay,
he declined to take her call.
And so on Friday, Mr. Rees issued a further statement.
He said that the CJ had met the PM in April to give him
Judge Fish’s resignation letter, and that, “as is customary,”
they briefly discussed the needs of the SCC.
In July, he said, the Chief Justice, “as part of the usual
process,” met with the Parliamentary committee
considering the coming vacancy and “provided … her
views on the needs of the Supreme Court.”
Two days later, Mr. Rees said, the CJ called Mr. MacKay’s
office and Mr. Novak “to flag a potential issue regarding the
eligibility” of a federal court judge to fill a Quebec seat on
the SCC. Later that day, the Chief Justice also spoke with
Mr. MacKay and “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.”
Now, that strikes me as an awful lot of calling for a CJ, but
whatever else, the question before us now is, should a
Chief Justice be flagging an issue to a minister and the PM?
38
Conversations with Chief Justice
are normal
Chief Justice of Canada” and that “The members of the
Selection Panel will also consult with the Chief Justice of
Canada”.
May 4, 2014
Irwin Cotler, Ottawa Citizen
If McLachlin were appropriate to consult regarding the
names on the short list, and appropriate also to the work
of the panel and to be consulted by them, surely she was
an appropriate person to provide her own advice directly
to the minister.
The tripartite relationship between Parliament, the
executive, and the courts is essential to the well-being of
our democracy. Given the importance of the executivejudicial relationship in particular, the recent insinuations
of the Prime Minister’s Office of misconduct on the part of
the Chief Justice of Canada are not only extremely
troubling, they risk eroding the reputation of one of
Canada’s most formidable institutions responsible for
upholding of the rule of law.
The Prime Minister’s Office contends that Chief Justice
Beverley McLachlin phoned the justice minister and
sought to speak to the prime minister regarding the
nomination of Justice Marc Nadon to the Supreme Court of
Canada. The Court later found Nadon did not meet the
statutory eligibility requirements specific to Quebec
judges.
The Prime Minister’s Office scurrilously suggested though
the absence of a timeline that perhaps such a call occurred
after the challenge had been initiated, in which case it
would be highly inappropriate for any conversation to take
place as the matter would be before the courts.
McLachlin asserts that the phone call to the government
raising the issue of eligibility occurred in July, noting “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.”
Conversations and consultations between a Chief Justice
and minister of justice are a normal part of the
appointments process. Indeed, as I noted before
Parliament in 2005 as minister of justice, Chief Justice
McLachlin was particularly insightful as regards the
expertise required for the Court, informing my choice of
criteria for evaluating candidates.
The Chief Justice was to be consulted twice in my process,
a practice continued in Nadon’s nomination. Then-Justice
Minister Rob Nicholson announced in June 2013 a
Selection Panel would “review and assess a list of qualified
candidates put forward by the Minister of Justice and
Attorney General of Canada in consultation with […] the
In that regard, the Chief Justice is a perfectly appropriate
person to provide the minister with input on a range of
subjects, particularly on the administration of justice. In
this regard we have seen the Chief Justice champion issues
of access to justice and the rising cost of litigation. It would
of course be inappropriate for either a minister or the
Chief Justice to discuss matters before or likely to be
before the Court, which was not the case here as no
nominee had been announced. However, it is important
and indeed necessary that dialogue exist between the
branches, directly and indirectly.
In casting aspersions on McLachlin’s conduct, the
government seeks to claim the issue of Nadon’s eligibility
was unforeseen. This is difficult to square with McLachlin’s
July call, the August statement of Justice Minister Peter
MacKay that “There are provisions right now that could be
interpreted as excluding federal judges from Supreme
Court appointments,” and the later disclosure in Privy
Council Office records that the government sought advice
from Justice Louise Charron in August 2013 and from
Justice Ian Binnie and Professor Peter Hogg in September
2013 on this very question of eligibility.
Clearly, MacKay and the prime minister should have
listened to McLachlin’s advice and not made a risky
appointment. They took the risk Justice Nadon would be
challenged — indeed, they even anticipated this challenge
and therefore sought advice — and have no one to blame
for the outcome but themselves.
While the government now seeks to tarnish the Court’s
excellent reputation — let alone the sterling reputation of
the Chief Justice — Quebec remains under-represented at
the Supreme Court of Canada, a situation the government
must remedy.
Justice McLachlin was first appointed by Progressive
Conservative Prime Minister Brian Mulroney and elevated
to Chief Justice by Liberal Prime Minister Jean Chrétien. As
Canada’s longest-serving Chief Justice, she represents the
best of Canada and continues to serve as a role model and
inspiration to many. It is my hope — one shared with
39
many in Parliament from across the political spectrum —
that she will continue to serve with distinction for years to
come.
Irwin Cotler is the former Minister of Justice and Attorney
General of Canada. He is a Professor of Law (Emeritus) at
McGill University.
The PM’s losing case in Harper v.
McLachlin
May 5, 2014
Errol Mendes , Editorial, Globe and Mail
lawyers could have asked her to recuse herself from the
reference case. They did not.
Ten months later, Mr. Harper is suddenly calling into
question the appropriateness of the Chief Justice’s actions,
after the court has ruled against his government. It is
entirely appropriate for the PM to criticize a court
decision, and criticize this decision he has. Fair enough.
But taking petty potshots at the Chief Justice’s
professionalism? It undermines confidence in one of our
most vital institutions. It also undermines confidence in
Mr. Harper.
Prime Minister Stephen Harper should clarify whether he
thinks the Chief Justice of the Supreme Court acted
inappropriately, as he appears to have alleged. We say
“appears” because Mr. Harper is being passive-aggressive
with regard to this matter, tossing out an accusation that
doesn’t seem to have any basis in law or fact, and then
refusing to comment.
Mr. Harper issued a statement last week saying Chief
Justice Beverley McLachlin tried to contact him last year,
when rumours were circulating in legal circles that he was
preparing to name a Federal Court judge to one of the
three high court spots reserved for Quebeckers. The
potential appointment of Marc Nadon was contentious,
since Mr. Nadon was not a member of the Quebec bar, and
that appeared to disqualify him under the terms of the
Supreme Court Act. Mr. Harper went ahead regardless, the
appointment was immediately challenged, and the
government referred the issue to the Supreme Court itself.
The justices ruled 6-1 that the appointment didn’t meet
the requirements of the law; Chief Justice McLachlin was
one of the six in the majority.
Chief Justice McLachlin has not hidden the fact she
attempted to contact the Prime Minister, nor should she.
As Chief Justice, she is expected to consult with the
government about the needs of the court. It is fair to say
that she wanted to signal an issue that might delay the
arrival of a new justice and leave her short a body for an
extended period – which, of course, is exactly what has
happened.
Since her communication with the PMO occurred before
Mr. Nadon’s appointment, it is hard to see how Chief
Justice McLachlin was interfering with an active case, since
there was no case until several months later. Still, if the
government was truly concerned about her neutrality, its
40
QP Monday: tussling with the
Chief Justice
“After I spoke with her on that call I was of the considered
opinion that the Prime Minister did not need to take her
call,” he added.
May 5, 2014
Laura Beaulne-Stuebing, iPolitics.ca
“One thing I can assure the honourable member is that
neither the Prime Minister nor I would ever consider
calling a judge where that matter is or could be before the
court of competent jurisdiction.”
It’s not every day that the head of one branch of
government spars with the head of another branch of
government. It isn’t every day – it’s never, really – but it
somehow happened last week. Because things are like that
here in Ottawa these days.
Prime Minister Stephen Harper and Beverley McLachlin,
Chief Justice of the Supreme Court, got into a spat last
week when Harper’s office suggested McLachlin acted
improperly over what some are calling the disastrous
appointment of Marc Nadon to the Supreme Court. His
office said McLachlin had tried to call Harper about the
Quebec vacancy, which the prime minister said was
inappropriate and was apparently rebuffed.
McLachlin quickly issued a statement in response, saying
that although she reached out to the prime minister, all she
wanted was to make sure the government knew about
Nadon’s eligibility issue. She added that she did not
express any opinion on the merits of the issue, and that
this kind of communication is not at all unusual or
inappropriate.
Probably knowing the prime minister wouldn’t be in the
House of Commons Monday – as he’s never in the House of
Commons on Mondays – the NDP question period team
took aim at the Minister of Justice and Attorney General
Peter MacKay.
There were a few things Opposition leader Thomas
Mulcair wanted to clarify about the role of Canada’s
attorney general.
Does the AG consider part of his job to ensure there are
never any attempts to intimidate the courts in our
country? Does the AG recognize that he was complicit in
the attack against McLachlin? Mulcair asked.
McLachlin’s statement made clear that there was no
communication between her and the prime minister’s
office regarding any case before the courts. And after an
initial call to set up a meeting with the prime minister, she
chose not to pursue the issue further.
Mulcair continued.
“The attorney general’s job is to defend the integrity of the
court system in our country, not to help the Prime Minister
attack the chief justice,” he said. “Is our attorney general
telling us that he will be the henchman of the Prime
Minister in this unwarranted, unprecedented attack on the
Supreme Court and its chief justice?”
A quick response from Peter MacKay on this one: ”With
respect to upholding the laws, with upholding the integrity
of our justice system,” he said, “of course the attorney
general and justice minister will do just that.”
They debated Quebec law – and the provisions in the
Supreme Court Act regarding Quebec – and then things
continued on with questions from the Liberal party.
Critics and observers have called the public spat between
the head of the executive branch of the government and
the head of the judicial branch of the government
unprecedented and unfounded, and a conflict that could
jeopardize Canadians’ trust in the justice system.
The prime minister hasn’t clarified anything since the
disclosure of the events took place last week, despite calls
from the legal community to do so. Expect a question or
two from Mulcair on this when the prime minister graces
the House with his presence next, likely Tuesday.
“Mr. Speaker, I reject the premise of that question,” Peter
MacKay said when he stood up to respond. “What I can tell
the honourable member opposite is that after being
consulted on the vacancy of the Supreme Court of Canada
by a special parliamentary committee, my office was
contacted by the office of the chief justice.”
41
PM muds chief justice
May 5, 2014
Editorial, The Chronicle Herald
By questioning the integrity of the chief justice of Canada
and unfairly dragging her into the political mud, Prime
Minister Stephen Harper has gone too far, even by his
standard of hardball politics.
It’s unseemly and immature for Mr. Harper to take out his
frustration over the disqualification of a judicial
appointment on Chief Justice Beverley McLachlin. This
political hissy fit is unworthy of a prime minister and
grossly misdirected at someone who is Canada’s senior
judge, not a political opponent.
as unnamed Conservatives told the National Post last week
in the smear that touched off this unjustified attack.
But Mr. Harper didn’t want to hear the chief justice, got
other advice that Judge Nadon was eligible, slipped clauses
into a budget bill amending the Supreme Court Act to
ensure he was eligible, and made the appointment. It was
challenged and the Supreme Court ruled 6-1 in March that
Judge Nadon was ineligible. It said existing legal language
could not be stretched to mean what the government
wanted it to mean and the government couldn’t change the
act without a constitutional amendment.
Mr. Harper has himself to thank for a series of poor
decisions on this appointment. He is only doubling down
on his bad judgment by throwing mud at the chief justice.
Worse, Mr. Harper risks undermining public confidence in
the courts by claiming Chief Justice McLachlin acted
inappropriately and improperly in advising his office last
summer that Federal Court Judge Marc Nadon, one of a list
of potential nominees to fill a Quebec seat on the Supreme
Court of Canada, might face an eligibility challenge.
For a prime minister to mess around with the reputation of
the country’s highest court is incredibly bad judgment
unless he has evidence the court did meddle in politics.
Mr. Harper has offered no such evidence. He says Justice
Minister Peter McKay advised him, and he agreed, it would
have been improper for him to take a heads-up call from
Chief Justice McLachlin on a potential eligibility issue
concerning Judge Nadon. Mr. Harper says the chief justice’s
call was akin to a minister improperly calling a judge on an
active or pending legal case.
The chief justice’s response makes it clear her call was no
such thing. As part of the usual screening process, she was
shown a list of potential court nominees, including Judge
Nadon, by a vetting committee of MPs on July 29, 2013,
long before Judge Nadon was nominated by Mr. Harper on
Sept. 30. On July 31, she says she contacted Mr. MacKay
and the PMO to ensure they were aware Mr. Nadon might
face an eligibility challenge because he had not served on
the Quebec bench and was not a current member of the
Quebec bar. She says she expressed no opinion on the
merits of an eligibility challenge. There was no nomination
or pending lawsuit at this time.
In other words, the chief justice merely pointed out the
existence of a legal issue that might impede or delay a
potential appointment to her court. Nothing improper
there. It certainly wasn’t “lobbying” against Judge Nadon,
42
PM owes chief justice an apology
May 5, 2014
Geoffrey Stevens, The Record
You might think that anyone who has spent many years
observing politicians would not be surprised by anything
they do or say. But you would be wrong.
Never — not since my first days in the Parliamentary Press
Gallery in 1965 — have I encountered anything quite as
appalling as Prime Minister Stephen Harper's attack on
Chief Justice Beverley McLachlin of the Supreme Court of
Canada.
Everyone knows that this prime minister plays by his own
hardball rules. He insists on winning. He has a mean
streak, a vindictive side, when he does not get his own
way.
He does not hesitate to throw people under the bus, as he
did to his former chief of staff, Nigel Wright, whose only sin
was an excessive loyalty that led him to try to extricate the
PM from the Senate expenses scandal. Harper also did the
bus thing to once-loyal Conservative senators Mike Duffy
and Pam Wallin.
These three, and there are others (Dimitri Soudas comes to
mind), were political appointees. They accepted the prime
minister's favour, surely knowing that his favour might not
last. Harper made them, and it was his prerogative to
unmake them. It's not nice; it's not pretty, but it's within
the rules of the political game.
But it is not within the rules for the prime minister to act
like a schoolyard bully, by using the platform of his office
to beat up public servants, of whom the chief justice is the
most recent. Unlike Wright, Duffy, Wallin and Soudas,
these public servants are not part of the political power
complex that surrounds the PM. They are public servants
in the true sense of the term. They serve all Canadians,
regardless of who happens to be in power. And they
cannot defend themselves from partisan attack the way
political appointees can.
These victims include the former head of the Canadian
Nuclear
Safety
Commission;
chief
statistician;
parliamentary budget officer; head of the Military Police
Complaints Commission; chief electoral officer; and former
auditor general Sheila Fraser. Last week, Harper expanded
his enemies' list to include the chief justice and, by
extension, the entire Supreme Court of Canada, a majority
of whose members he himself appointed.
That Harper is furious with the court is no secret. In a
series of high-profile decisions, the court has ruled that the
government must abide by its own laws and by the
Constitution of Canada, whether the issue is a package of
tough-on-crime measures or reform of the Senate.
Parliament has the option of enacting new laws or
amending the Constitution. Until it does so, the
government must live with what it has.
Chief Justice McLachlin stands accused, spuriously, by the
prime minister of attempting to interfere in a case before
the court. The issue was the nomination of Federal Court
Justice Marc Nadon to fill a Quebec vacancy on the
Supreme Court. In the normal course, a parliamentary
committee that was screening a short list of candidates
asked McLachlin about the needs of her court.
There are special constitutional rules for the selection of
judges from Quebec, and McLachlin knew that judges of
the Federal Court did not come within the rules. She felt
compelled to alert her political "boss," Justice Minister
Peter MacKay. MacKay, who may or may not have
understood her alert, told her to call the prime minister,
which she decided not to do.
Yet Harper accuses her of trying to influence him in a case
that was before the court. If the allegation were true, she
might have to resign as chief justice. But it's not true. This
all transpired months before Harper selected Nadon and
even longer before there was any challenge to his
appointment. Eventually, a challenge did make its way to
the Supreme Court, which ruled 6-1 that Nadon was
ineligible.
The prime minister owes the chief justice a profuse
apology for impugning her integrity. But she should not
hold her breath waiting for it.
Cambridge resident Geoffrey Stevens, an author and
former Ottawa columnist and managing editor of the Globe
and Mail, teaches political science at Wilfrid Laurier
University and the University of Guelph. He welcomes
comments at [email protected]
43
Harper encore plus bas
May 5, 2014
Yves Boisvert, La Presse
Jamais dans notre histoire n'a-t-on vu un premier ministre
attaquer de manière aussi minable l'institution judiciaire.
La semaine dernière, le bureau de Stephen Harper a tenté
de nous faire croire que la juge en chef de la Cour suprême,
Beverley McLachlin, avait violé le principe de la séparation
des pouvoirs.
Dans un communiqué volontairement vague et mensonger,
le bureau du premier ministre affirme que la juge
McLachlin a tenté de joindre M. Harper pour parler de la
cause du juge Nadon. C'est faux.
Si effectivement un juge tentait de communiquer avec un
politicien au sujet d'une cause devant la cour, ce serait un
motif suffisamment grave pour justifier sa destitution.
L'inverse est également vrai: Jean Charest, alors jeune
ministre fédéral des Sports a été obligé de démissionner en
1990 pour avoir appelé un juge - qui n'a pas pris l'appel.
Le communiqué du bureau de Stephen Harper, jeudi,
commence en disant que «Le Premier ministre ou le
ministre de la Justice n'appelleraient jamais un juge en
exercice au sujet d'une affaire qui est portée devant son
tribunal ou qui pourrait éventuellement l'être.»
Bien sûr!
Ensuite, sans préciser la date, il ajoute que la juge en chef a
tenté de communiquer avec lui au sujet de la nomination
du juge Marc Nadon. Il déclare que, sur l'avis du ministre
de la Justice, il a refusé la communication, car cela aurait
été «mal avisé et inapproprié».
Ne précisant pas la date, on pourrait penser que la juge en
chef a tenté de parler au premier ministre pendant la
contestation judiciaire de la nomination. Un avocat
torontois a en effet contesté la légalité de la nomination de
Marc Nadon dès qu'elle a été annoncée, en octobre, et
l'affaire a été confiée à la Cour suprême par le
gouvernement fédéral.
Sauf que c'est bien avant que la juge en chef a tenté
d'appeler le premier ministre, avant même la nomination
du juge Nadon: en juillet.
Que voulait la juge en chef? Informer le gouvernement
d'un problème potentiel dans le cas de la nomination d'un
juge québécois de la Cour fédérale. Non seulement ce
n'était pas «inapproprié»: c'était le devoir de Beverley
McLachlin!
La tradition depuis toujours veut que le ministre de la
Justice consulte la juge en chef au sujet des nominations à
sa cour. La juge en chef peut et doit informer le premier
ministre des besoins de la cour. Donner son avis sur les
candidats. Et l'alerter en cas de problème. Autant pour
protéger l'intégrité de l'institution que la qualité des
nominations - qui demeurent la prérogative du premier
ministre.
Les règles écrites par le gouvernement Harper lui-même
prévoient que la juge en chef est consultée au sujet de la
nomination des juges de sa cour.
Le 29 juillet 2013, donc, quand un comité parlementaire a
été formé pour dresser une liste de candidats pour
remplacer le juge québécois Morris Fish, la juge McLachlin
a été consultée. Le 31 juillet, elle a avisé le ministre d'un
problème potentiel dans le cas où l'on choisirait un juge de
la Cour fédérale.
Les gens du milieu judiciaire connaissent depuis
longtemps ce problème: le texte de la Loi sur la Cour
suprême semble exclure les candidats de la Cour fédérale.
La juge en chef n'a jamais donné son opinion sur le fond de
ce problème; elle a seulement averti le gouvernement. Le
ministre McKay a fait rédiger un avis juridique par un
ancien juge de la Cour suprême, Ian Binnie, et l'a fait
approuver par une autre ex-juge et le constitutionnaliste
bien connu Peter Hogg. Tous concluaient qu'il n'y avait pas
de problème à puiser parmi les juges de la Cour fédérale
pour trouver un candidat québécois à la Cour suprême.
Marc Nadon a été nommé.
On connaît la suite: un avocat conteste la validité de la
nomination; la Cour suprême, à six juges (dont la juge en
chef) contre un, conclut à l'invalidité de la nomination. On
peut ne pas être d'accord - un juge était d'ailleurs
dissident. Mais l'interprète ultime des lois a tranché.
***
Le premier ministre est manifestement furieux contre la
Cour suprême, même s'il en a nommé la plupart des
membres. La Cour lui a fait subir une demi-douzaine de
revers spectaculaires sur des enjeux majeurs pour lui.
L'homme doit se sentir humilié, même s'il a largement
contribué à ses malheurs. Jamais une nomination n'avaitelle été déclarée invalide depuis la création de la Cour
44
suprême. Mais avant d'être invalide, c'était aussi une
mauvaise nomination.
Alors, comme chaque fois qu'il rencontre une
contradiction légitime sur son chemin, Stephen Harper
tente de discréditer l'institution. Il l'a fait avec le directeur
du budget, le directeur général des élections, RadioCanada...
Cette fois-ci, il est allé encore plus bas. Et c'est encore plus
grave, puisqu'il tente de miner de manière malhonnête la
crédibilité même de la Cour suprême, le pilier du pouvoir
judiciaire canadien. C'est une tentative d'intimidation
répugnante. Si quelqu'un ici ne respecte pas
l'indépendance des tribunaux, c'est bien le premier
ministre.
J'ai dit «bas» ? Sale, plutôt.
45
Top court political? You be the
judge
May 5, 2014
Ezra Levant, Sun News
A worker raises a Canadian flag in front of the Supreme
Court building in Ottawa March 21, 2014. (REUTERS/Chris
Wattie)
According to the annual Gallup poll on the subject, only
20% of people consider lawyers to have high ethics.
But fully 45% of people think judges have high ethics.
But aren’t judges just lawyers who have been appointed to
a government job?
And not just any job. A job for life. A job with a vacation
schedule that would be the envy of any public school
teacher. A job that pays absurdly well.
In Canada, Supreme Court judges earn $358,000 a year.
The chief justice, Beverley McLachlin, makes $386,700 –
more than Stephen Harper, and just a few bucks shy of the
$400,000 that Barack Obama earns as president.
But that’s just the material stuff. The main perk is the
power – the power to punish a billion-dollar company, or
throw out a parliamentary law, or sentence a man to life in
prison. No wonder these judges wear ermine-skin robes
and are addressed as “my lord” and “my lady." In practice,
they have more power over Canadians than the Queen
herself.
But back to the question: why does a lawyer – disrespected
by the public on Monday – suddenly become a highly
ethical person if he wins the lottery of a lifetime and is
appointed as a judge on Tuesday?
doubt he was qualified as well, but no doubt he was
political.
Which brings us to last week’s political act by Canada’s
highest court. Justice McLachlin – she with the $386,700
taxpayers salary – fired off not one, but two press releases
taking issue with the prime minister's position on the
court. They’re feuding.
Last year Harper nominated a Quebecer to the Supreme
Court seat. Marc Nadon is a distinguished judge, promoted
to the federal court. Harper consulted with the official
opposition parties, and with the province of Quebec, and
with two former Supreme Court judges on Nadon’s
selection. None of them objected.
But after Nadon was sworn in, a left-wing lawyer name
Rocco Galati sued to stop the appointment, claiming Nadon
was technically not allowed, since as a federal court judge
he wasn’t part of the Quebec bar. It was a technicality, a
loophole. But McLachlin and most of the court agreed.
They spiked Nadon’s appointment, even after he was
sworn in. It was unprecedented.
But here’s why McLachlin is firing off political press
releases. Last week, Harper made public the fact McLachlin
had tried to phone him to raise concerns about Nadon in
advance. Harper rightfully refused to take the call – for a
politician to talk to a judge about a matter that could be
before that same judge in court is a violation of the
separation of the two branches of government.
Harper recused himself from that call. But McLachlin went
on to sit in judgment of Nadon – and vote against him.
Even though she had already revealed her position by
demanding a phone call with Harper.
That’s shocking. That’s political. That’s why we need to
criticize judges. Because they’re just as political as prime
ministers – even if they’re nowhere near as accountable.
Are they not the same person – with the same views and
experiences and history and personality? So why do we
suddenly suspend our skepticism and criticism and
demands for accountability, just because of a new job title?
Good lawyers temper their more partisan enthusiasms
when appointed to the bench. But the fact remains, many
appointments are explicitly political – rewards to loyal
political troops by a grateful justice minister. Michel
Bastarache was appointed to the Supreme Court after
loyally serving as the campaign chairman of a “yes”
committee promoting the failed Charlottetown Accord. No
46
Charge de Harper: le Barreau
appuie la Cour suprême
May 6, 2014
La Presse Canadienne Montréal
Alors que le gouvernement Harper livre une charge sans
précédent contre la Cour suprême du Canada, le Barreau
du Québec tient à réitérer sa confiance en nos institutions.
Par voie de communiqué, la bâtonnière du Québec, Me
Johanne Brodeur, a soutenu mardi que le principe de
séparation des pouvoirs entre l'exécutif et le judiciaire
avait été respecté dans l'épisode houleux entourant la
nomination avortée de juge Marc Nadon à la Cour
suprême.
Elle stipule qu'il est normal que les juges soient consultés
sur les besoins de la Cour et ajoute qu'il est du devoir des
magistrats d'alerter le gouvernement sur tout problème
qu'ils voient poindre concernant le bon déroulement des
activités de la Cour.
La semaine dernière, le premier ministre Stephen Harper a
accusé la juge en chef Beverley McLachlin d'avoir tenté de
façon inappropriée de le prévenir qu'il pourrait y avoir un
problème avec la nomination du juge Marc Nadon au plus
haut tribunal du pays.
Me Brodeur croit qu'il n'y a rien d'inadéquat dans le fait
qu'une juge en chef de la Cour suprême souhaite discuter
avec un représentant de l'exécutif du processus de
nomination d'un magistrat. Il en aurait été tout autre si le
sujet de cette conversation - qui n'a par ailleurs jamais eu
lieu - avait été un dossier judiciaire, spécifie-t-elle.
Estimant que le dossier de la nomination du juge Marc
Nadon est maintenant clos, la bâtonnière du Québec
demande que le poste vacant à la Cour suprême soit
comblé dans les plus brefs délais par un juge bilingue du
Québec.
47
Chief Justice Beverley McLachlin
more than just a 'sitting judge'
Head of the Supreme Court has special constitutional
powers and responsibilities
May 6, 2014
Leslie MacKinnon, CBC.ca
Chief Justice Beverley McLachlin, whom Prime Minister
Stephen Harper referred to indirectly as a "sitting judge,"
is in fact a head of a branch of government.
She heads the judicial branch and is the chief justice of
Canada, not just of the Supreme Court, and is a member of
the Privy Council.
But McLachlin is also the deputy governor general, and if
the Governor General were to become incapacitated, she
would take his place.
When Gov. Gen. Jules Léger had a stroke in 1974, Chief
Justice Bora Laskin replaced him for about six months,
handing out medals and reading the speech from the
throne.
It's a largely ceremonial role, but when Harper prorogued
Parliament in 2008 fearing a vote of non-confidence from a
coalition of the Liberals and the NDP supported by the Bloc
Québécois, he had to seek permission from Gov. Gen.
Michaëlle Jean.
Yet when McLachlin advised Justice Minister Peter MacKay
about a potential constitutional issue over the
appointment of a Federal Court judge to represent Quebec,
the government reacted as if she were an ordinary judge
who had behaved inappropriately.
Quebec, because it has a unique civil law code, can only be
represented on the Supreme Court by a Quebec lawyer of
10 years' experience or a Quebec provincial judge.
MacKay told the House of Commons on Monday, "neither
the prime minister nor I would ever consider calling a
judge before a matter that is or could be before the courts."
Adam Dodek, who teaches law at the University of Ottawa
and who has written two books about the Supreme Court,
said in an interview, "It is completely normal for the
executive who is appointing judges to consult with the
chief justice of the court."
Despite McLachlin's warning about the eligibility of a
Federal Court judge representing Quebec, MacKay made it
clear the government ignored it.
"We took the position that we were proceeding in not only
a constitutional manner, but on the advice of considered
learned advice from two former Supreme Court justices
and the foremost legal expert when it comes to the
Constitution of our country," he said in question period.
The three advisers hired by the government — retired
judges Ian Binnie and Louise Charron and lawyer Peter
Hogg — gave the green light about appointing a Federal
Court judge, although only Binnie's report has been
released publicly.
In question period, NDP Leader Tom Mulcair inquired
whether MacKay is "a henchman of the prime minister's in
this unwarranted, unprecedented attack on the Supreme
Court and its chief justice."
Dodek can't recall a time in history when a government
has been critical of the actions of a chief justice.
25 years on the Supreme Court
McLachlin is a unique head of the top court, the first
woman appointed to the post and the longest sitting in
history.
The accusation that she inappropriately tried to talk to
Harper occurred just a month after her 25th anniversary
as a Supreme Court judge. On March 30, 1989, Prime
Minister Brian Mulroney appointed McLachlin, an Albertan
who moved to B.C. in 1974, to sit on the top court bench.
Chief Justice Beverley McLachlin sat down for an exclusive
interview with CBC Chief Correspondent Peter Mansbridge
last year. (CBC)
In 2000, Prime Minister Jean Chrétien made her chief
justice. Her retirement date is five years away.
In the past 14 years, McLachlin has changed the court.
According to Dodek, she has shortened the court's once
notoriously long decision-making times.
"Under Chief Justice [Antonio] Lamer and his predecessors
it was not uncommon for judgments to take over a year,"
he said. Under McLachlin, the time frame is more likely to
be six months.
Government ignored McLachlin's warning
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A consensus-building court
McLachlin also brought about a consensus-building court
that often delivers unanimous decisions. In a televised
interview with host Peter Mansbrige for the CBC's One on
One, she spoke of free-for-all debates by all the judges
about the cases before them.
They "hash it out," and she always speaks last. "My vote is
worth no more than anyone else's."
She said the approach allows her to pick up bits and pieces
on different issues. "I can listen to what everyone has to
say and sometimes you can pick up different threads, and
some of the things dividing people are very small."
Dodek said her court is seen as "a very collegial court,"
with "an open and co-operative working environment."
He said 4-5 split decisions have been rare in McLachlin's
court. "In the U.S they are the rule," he said.
McLachlin, who told Mansbridge it was her goal to make
the court more transparent, also brought television
cameras into the Supreme Court chamber.
49
Questions About Justice Marc
Nadon Linger
May 6, 2014
Irwin Cotler, Huffington Post
In Monday's question period, much of the back-and-forth
concerned the insinuations from the Prime Minister's
Office of wrongdoing on the part of the Chief Justice.
Regrettably, as is too often the case in Question Period,
there were few answers found in the responses of the
government -- and that which was said in reply only raises
more questions.
The series of events is fairly straight-forward, despite the
government's attempt at dissembling. During the
consultations surrounding the nomination of Federal
Court of Appeal Marc Nadon to the Supreme Court of
Canada, the Chief Justice called the Minister of Justice -and a call sought with the Prime Minister -- to raise the
question of whether federal judges are eligible for Quebec
seats.
While the top court eventually found that Justice Nadon
did not meet the statutory requirements specific for
Quebec judges, at first the Prime Minister's Office
suggested this call may have happened after the legal
challenge to Mr. Nadon's eligibility was filed, in which case
it would be woefully inappropriate for any conversation to
occur between the government and a sitting justice as the
matter was before the top courts. It is now conceded that
the call occurred in July -- long before Mr. Nadon was even
nominated, let alone officially appointed in October.
What follows are eight -- since it has been eight months
since Justice Nadon was appointed to the Supreme Court -questions that arise from this whole affair:
1)
If the Justice Minister and/or Prime Minister
thought there was a problem with the Chief Justice's
conduct last summer, why didn't they do or say anything
until now?
It has been ten months since this July call occurred and
until last week not a word was spoken by the government.
Indeed, the Minister spoke of the Chief Justice's
involvement in consultations several times before the ad
hoc committee presenting Marc Nadon to Parliament and
omitted any reference to the call. Simply put, there was
ample time to raise the issue. Indeed, it would have been
an option for the government to request the Chief Justice
recuse herself given she had any involvement whatsoever
in the selection process, without even mentioning the call.
Yet, the government now -- out of the blue -- seeks to
discredit and tarnish the Chief Justice with a most
scurrilous accusation of wrongdoing. If this were such an
issue, why didn't the government action it when it could
have, or did it realize it simply had no legitimate case or
cause for concern?
2)
The Justice Minister publicly acknowledged in
August the law on appointments needed to be changed -so why didn't he do anything?
Specifically, Minister Mackay told Postmedia "There are
provisions right now [of the Supreme Court Act] that could
be interpreted as excluding federal judges from Supreme
Court appointments. [...] This act literally goes back to
Confederation. Suffice to say, there's a need to update
some of the provisions." Yet, he never introduced
legislation or sought a reference prior to Marc Nadon's
nomination in September, so what changed from "need to
update" to no update happening at all? Indeed, the only
legislative change to the Supreme Court Act introduced by
the Minister occurred after the Nadon challenge was
initiated, and this retroactive amendment to the Supreme
Court Act was later found in part unconstitutional.
3)
Why does the Minister say the legal opinion of
Justice Binnie was agreed in by Justice Charron and
Professor Peter Hogg when the Privy Council says Charron
was asked first?
Justice Minister MacKay told Parliament, among many
statements in this regard, "Colleagues, in the government's
view, the eligibility of the federal court judges to fill any
vacancy on the Supreme Court should not be in doubt. It is
solidly supported by legal opinion prepared by respected
former Supreme Court Justice Ian Binnie, which itself was
supported by his former colleague, the Honourable Louise
Charron, as well as by noted constitutional expert,
Professor Peter Hogg." Yet, in an answer tabled in the
House of Commons, "[T]he Privy Council Office (PCO)
responds that it has been made public that the
Government sought advice from Ms. Louise Charron in
August 2013 and from Mr. lan Binnie and Professor Peter
Hogg in September 2013." How would Charron know what
Binnie wrote if she was asked first? Was she asked
different questions on multiple occasions?
4)
Was anyone from Quebec even asked for a legal
opinion? (And if not, why not?)
Justices Charron and Binnie occupied Ontario seats on the
Supreme Court, and Peter Hogg is Toronto-based. It would
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seem that on a question that is very much Quebec-focused
(i.e. what constitutes eligibility for a Quebec seat on the
Supreme Court) the government would seek the opinions
of eminent Quebec jurists. To be fair, we do not know what
other opinions the government sought. Indeed, perhaps it
solicited a Quebec opinion but the result were unfavorable
to its cause. Will the government provide a full accounting
of the opinions it solicited -- from Quebecers and others -particularly as these were financed at taxpayer expense?
5) For that matter, was everyone asked the same thing?
The same PCO response mentioned above reveals the
following costs paid for legal opinions "Ms. Charron$4,325.00; Mr. Binnie- $6,605.00; Professor Hogg$1,045.25." Without entering into an in-depth discussion
of the cost of legal services, it would appear that perhaps
the individuals in question had different queries before
them. If this is the case, who was asked what, when, why
and by whom?
6)
How long will Quebec continue to be underrepresented at the Supreme Court of Canada?
Regrettably, this side-show in which the Prime Minister is
attacking the Chief Justice detracts as well from the real
issue that remains: There is a vacancy on the Supreme
Court of Canada. We must appreciate that on April 22
2013, Justice Morris Fish announced his retirement from
the Court effective August 31. What steps will the
Government take to fill the seat occupied by Justice Fish
and by when?
7)
With this attack, is the government even thinking
about the future process?
The more this politicization of the process and its actors
occurs, the more we risk detriment to a future process. If
those consulted feel they cannot express themselves
openly or freely -- and confidentially -- for fear of political
backlash, might they be disinclined to participate in the
process? Might we be setting up a system in which
parliamentarians involved also do not feel bound by
confidentiality agreements as it would seem the
confidence of the Chief Justice was violated by the
revealing of the contents of her call? We must think longterm and ask ourselves what are the implications of this
behavior on the part of the government, not only on the
top court and Chief Justice, but on the future processes of
nomination.
8)
When the Minister said in the house "we followed,
in fact, the most open and inclusive process for
consultation ever undertaken by a government with
respect to a Supreme Court appointment" was he
criticizing his own Government's previous processes for
not being open and inclusive enough? And was he
disregarding the more open and inclusive process
otherwise in place?
The Harper government has appointed six judges
(including Nadon) to the Supreme Court in five cycles
(recall that Justices Moldaver and Karakatsanis were
appointed together). If, by the minister's own words, the
process resulting in Nadon was the most open and
inclusive, what was wrong with the Conservative
appointments processes that resulted in the nominations
of Justices Rothstein, Wagner, Cromwell, Karakatsanis and
Moldaver?
Albeit somewhat posed in jest, it raises the query of what
the government learned from this failed appointment and
what it will do differently for next time. We do not know
how the next judge will be selected as the minister has
given little hint. Recalling that the province just had a
change in government as a result of the provincial election,
will Quebec's new Minister of Justice be consulted in
relation to the outstanding Quebec vacancy? Will a
verification of eligibility of a candidate become a part of
the process that's made public in some way?
At the risk of seeming self-serving, I disagree with the
minister's assertion of his process being the most
inclusive, as I feel the process I used in the 2005
nominations of Justices Charron and Abella was preferable.
Specifically, the 2005 selection committee -- unlike now -was not comprised entirely of MPs and -- again unlike now
-- had no majority from any one party. The non-MPs in my
process -- members of the bar, bench, academe, and even
the public -- helped inform and balance the process by
providing much-needed perspective absent any potential
political lens.
While moving forward it would be hoped that the Prime
Minister would apologize to the Chief Justice for any
suggestion of wrongdoing on her part -- and similarly
hoped that the Justice Minister would acknowledge his
own mistakes in this regard -- yet it is likely the
government will not so do out of sheer stubbornness and
fear for loss of political capital. The best that can be hoped,
however, is that it learns from this experience and makes
the necessary improvements for next time. To do so would
benefit not just the top court, but all Canadians who
continue to hold the nation's highest court in the highest
esteem and with utmost respect.
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WHAT READERS THINK
Judged by the PM – and other
letters to the editor
May 6, 2014
The Globe and Mail
Judged by the PM
Sean M. Kennedy, lawyer, Oakville, Ont.
........
A letter writer points to the imbalance in decision-making
power that seems to have evolved between Parliament and
the Supreme Court (Judged And The Jury – May 5). But
who is to blame for the failure of Parliament to have any
effective input into the many untenable bills that the
current House has passed?
Re PMO Rejects Lawyers’ Request For Clarity (May 5): The
Prime Minister’s Office cannot clarify its statement about
the Supreme Court. To do so would constitute, officially,
what has been made eminently clear to Canadians already:
Stephen Harper will do whatever is necessary to impugn
the reputation of anyone who opposes him.
Could it not be that, when Stephen Harper’s laws are
rejected by the Supreme Court, the Prime Minister is being
hoist with his own petard?
The recent attacks on former auditor-general Sheila Fraser
and now on Chief Justice Beverley McLachlin demonstrate
that there is no limit to the malice.
It is interesting to note how the legal minds of this country
“circled the wagons” when the Chief Justice drew criticism
from the Prime Minister. Is the Supreme Court never
beyond reproach?
Craig Hall, Kingston
.........
Elizabeth Marsland, Qualicum Beach, B.C.
.........
Dick Dodds, Napanee, Ont.
Canadians may have been curious whether there were
limits to the PMO’s use of hardball tactics. Now we know:
There appear to be none.
James Schaefer, Peterborough, Ont.
.........
In many instances – such as in the government’s policies
for mandatory minimum sentencing and proposed
amendments to the Elections Act – Canadians have seen
the government’s concerted and deliberate attempts to
skew the historical separation of powers between
branches of government.
Sean Fine, in his report on the Chief Justice’s denial,
correctly characterizes the court’s five rulings against the
Conservative government’s latest attempts to skew this
separation as “a rejection of Mr. Harper’s long-held views
on Parliament’s supremacy” (Supreme Court Denies PMO’s
Allegations – May 3).
It is astounding to realize that the Prime Minister, unlike
most other Canadians, either fails to grasp or intellectually
rejects the fact that parliamentary supremacy was
replaced by constitutional supremacy with the patriation
of the Constitution in 1982.
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