Bob Dechert: ’Nobody is attacking the Chief Justice’s credibility here’

A parliamentary secretary attempts to clarify
The Supreme Court of Canada in Ottawa on Tuesday, July 10, 2012. The court is currently reviewing an appeal regarding the 2011 election in Etobicoke. THE CANADIAN PRESS/Sean Kilpatrick

After six days of drama over the matter of the Chief Justice, the Harper government and the ill-fated appointment of Marc Nadon, along came Bob Dechert yesterday with some call for calm.

Mr. Dechert is the parliamentary secretary to the Justice Minister and, presumably with short straw in hand, it was Mr. Dechert who was sent to the foyer to appear alongside the NDP and Liberal critics on the CBC’s early evening politics show yesterday evening.

Mr. Dechert’s involvement begins at about the four-minute mark.

The host, Evan Solomon, begins by suggesting the Prime Minister’s Office has “insinuated that the Chief Justice, Beverley McLachlin, acted inappropriately, trying to intervene with the appointment of Justice Nadon. The Chief Justice denies it. Who is telling the truth?”

“Actually Evan,” Dechert responds. “I think you’ve got it turned around.”

The parliamentary secretary proceeds to parse the events of last week and the sequence of events leading up to Mr. Nadon’s nomination.  Solomon comes back and asks what he has turned around.

“What you’ve turned around is putting the inappropriate in the wrong place,” Mr. Dechert explains. “Basically what we’re saying is—and if you listen to the Prime Minister’s quote, which you just read, it would not be appropriate for me to speak to a judge who could be deciding this in the future. And if the Prime Minister had done that and we were sitting here today, subsequent to the Supreme Court decision, people might very well be saying that the Prime Minister should not have spoken to the Chief Justice about that issue, knowing that it was possible that she and other justices might be dealing with these—”

Solomon talks over Dechert here to interject that if he has it turned around, so must the Chief Justice and there ensues some debate about who said what and why. Dechert suggests that this matter has been “torqued in the media” and that “the issue” of a Federal Court judge’s eligibility was already out there and it probably wasn’t necessary for the Chief Justice to have a discussion with the Prime Minister last July. Solomon persists and eventually asks whether Dechert, a lawyer, has ever seen a Prime Minister’s Office or a Prime Minister question not the decision of the Court, but the “motives of a Chief Justice enough to elicit the kind of extraordinary response.”

“I don’t think that that’s what the facts are in this case, Evan,” Dechert says. I don’t think that—”

“Then what are they?” Solomon interjects.

“—that anyone was questioning—simply point out why the Prime Minister didn’t have that conversation. The Chief Justice no doubt had already raised it, it was well known, so I don’t think there was a necessity to have that further conversation on that point. And I think that’s all that they were trying to point out.”

Solomon says the Chief Justice obviously felt the facts needed to “get out there” and now Dechert interjects.

“So the facts are out and we all understand them now,” he says. “I don’t really see that there’s much of an issue here.”

Solomon turns to the NDP’s Francoise Boivin and Liberal MP Sean Casey, who proceed to fuss and fume on various fronts. Mr. Casey accuses the government of attacking and smearing the Chief Justice and worries that this jeopardizes the selection process and undermines any trust the Chief Justice might have that what she says during consultations won’t be used against her at a later date. “I think that the entire system of justice will be harmed by this spat and it was absolutely completely, completely uncalled for,” Casey says. “The Supreme Court of Canada, if anything in terms of institutions in this country, is one that demands the highest of respect, whether you agree with it or not. And as someone who should be defending and upholding the integrity of institutions such as the Supreme Court of Canada, the Prime Minister has done a terrible disservice to his office and to the Canadian public.”

Dechert has been sitting there for all of this and now he interjects.

“Evan, I think my friends in the opposition are trying to set the house on fire here. It isn’t that situation at all. A legal position was taken, this was a grey area. Opinions were sought and at the end of the day the Supreme Court clarified the interpretation of the Supreme Court of Canada Act. And the government is respecting, living with that decision.”

Solomon tries to interject, but Dechert insists on finishing his intervention.

“Let’s not burn the house down over what is a simple variance in wording. Nobody is attacking the Chief Justice’s credibility here.”

This seems a rather important clarification.

In all, Dechert would seem to make three points on this matter: that the Prime Minister and his office were commenting on the appropriateness of the Prime Minister talking to a judge, that there is not much of an issue here and that the Chief Justice’s credibility has not been attacked.

Can all of that be squared with the events of the last six days?

There was, in the beginning, the complaints of anonymous Conservatives—in John Ivison’s telling, the allegation was that the Chief Justice had lobbied against Mr. Nadon’s appointment. When, after the Chief Justice had responded, the Prime Minister’s Office decided to comment, its statement included this paragraph.

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.

Is it possible to read that paragraph as not suggesting any impropriety on the Chief Justice’s part? The Globe’s immediate reporting on the statement explained to readers that, “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.” The Star reported that, “A spokesman for Prime Minister Stephen Harper suggested Chief Justice Beverley McLachlin inappropriately tried to call Harper’s office about the Quebec vacancy on the high court, an overture that Jason MacDonald said the Prime Minister rebuffed on the advice of his justice minister.”

My reading of the PMO statement came to be that if it would have been inappropriate for the Prime Minister to take the call, it must have been inappropriate for the Chief Justice to make the call. On Friday afternoon, seeking further clarity, I put a question to the PMO: What exactly does the Prime Minister think was inappropriate about what the Chief Justice did?

The response was as follows: “Asked to meet/discuss with him an issue that could ultimately end up before their court. That is inappropriate. That is why the PM declined to speak with her.” I dutifully reported that on Friday night (for whatever it is worth, I did not initially put quotation marks around the word inappropriate, but soon added quotation marks shortly after I was asked for clarity).

So Dechert’s first argument, that it would be wrong to suggest the government suggested that the Chief Justice had done something inappropriate, thus seems to be shaky. Even without the comment to me, there was at least the suggestion of both the PMO’s first statement on Thursday and the Prime Minister’s public comments on Friday. And then there was the reaction to it. If the government felt there had been some confusion or that its statement was being blown out of proportion, it might’ve said so.

What about the rest of Dechert’s position? A few hours before Mr. Dechert would’ve turned up on television (I only watched the clip online late last night), Thomas Mulcair was up in the House accusing the government of an “attack” on the Chief Justice. Peter MacKay might’ve tried there to at least assert his parliamentary secretary’s last point: that nobody here is attacking the Chief Justice’s credibility, but instead he repeated he the PMO lines and then took to mocking his inquisitors.

Somewhere therein are the questions for this afternoon: Do Bob Dechert’s comments hint at the start of some attempt to cool the situation—a “remedy” of the sort that several former CBA presidents are now seeking from the Prime Minister? Or was Bob Dechert freelancing? Or some combination thereof?