The Prime Minister’s Office vs. The Chief Justice, Part II

While the Prime Minister took an opportunity today to explain his perspective on the latest twist in the Marc Nadon affair, the Supreme Court issued a second statement today on the Chief Justice’s involvement.

At no time was there any communication between Chief Justice McLachlin and the government regarding any case before the courts. The facts are as follows:

On April 22, 2013, as a courtesy, the Chief Justice met with the Prime Minister to give him Justice Fish’s retirement letter. As is customary, they briefly discussed the needs of the Supreme Court of Canada.

On July 29, 2013, as part of the usual process the Chief Justice met with the Parliamentary committee regarding the appointment of Justice Fish’s successor. She provided the committee with her views on the needs of the Supreme Court.

On July 31, 2013, the Chief Justice’s office called the Minister of Justice’s office and the Prime Minister’s Chief of Staff, Mr. Novak, to flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court. Later that day, the Chief Justice spoke with the Minister of Justice, Mr. MacKay, to flag the potential issue. The Chief Justice’s office also made preliminary inquiries to set up a call or meeting with the Prime Minister, but ultimately the Chief Justice decided not to pursue a call or meeting.

The Chief Justice had no other contact with the government on this issue.

The Chief Justice provided the following statement: “Given the potential impact on the Court, I wished to ensure that the government was aware of the eligibility issue. At no time did I express any opinion as to the merits of the eligibility issue. It is customary for Chief Justices to be consulted during the appointment process and there is nothing inappropriate in raising a potential issue affecting a future appointment.”

So what precisely does the Prime Minister’s Office think was inappropriate about what Beverley McLachlin did? In an email to me, the Prime Minister’s Office says 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.”

So were her discussions with Peter MacKay and Ray Novak inappropriate? I’ve yet to receive a response to that question, but will happily post it if I do.

What is needed here, of course, is a serious discussion of events and nuances and what is and is not appropriate.

On this week’s episode of Maclean’s on the Hill (beginning at about the 2:30 mark), John Geddes spoke with Eugene Meehan, who served as executive legal officer for former chief justice Antonio Lamer. Meehan basically opines that the Chief Justice did nothing wrong.

Earlier this evening, I spoke with Fred Headon, president of the Canadian Bar Association. Headon said the CBA hopes this is “nothing more than a misunderstanding” and that it does not appear the Chief Justice did anything inappropriate.

As I read the statement of the court today and as I read the other comments in the media, it appears the Chief Justice was participating in the consultation as we think is appropriate … it is very much proper that she speak and be part of the discussions around who would fill the court. We want a process that is robust and helps lead to appointments that meet the needs of any of the courts…

What’s unfortunate is that the Prime Minister is suggesting that she was speaking about a case and, of course, that’s a very different issue and one that leads to this concern about confidence and the credibility of the Court, to suggest that she was involved in an inappropriate discussion undermines the court.

What about the idea that this—the eligibility, the Supreme Court Act, of a federal court judge to be appointed to one of the spots reserved for Quebec judges—was something that could have ended up before the Supreme Court. Should she have anticipated that and thus withheld comment?

At that point in the process … it’s hard to have known, I think, whether a case could have flowed from this. And I think it is legitimate and helpful, as she seems to have done, to have raised the issue. She is saying she did not opine on the issue. That’s a very important distinction. And as we’ve seen, if there’s a problem with a  nomination, that leaves the court short-staffed and that too is a problem … but for her to raise it, I think that’s legitimate. It’s in the interest of the Court and the interest of a process that leads to the kind of result we would expect, in terms of its reception by the community. At this point in the process, there was no case. And I think it was appropriate for her to raise any concerns she had about the elements that were being considered.

The Globe cites Adam Dodek as saying that if the government was concerned with the Chief Justice’s behaviour, the Justice Minister should have said so publicly before the case was put before the Supreme Court.

NDP critic Francoise Boivin opined to reporters after QP today that the Chief Justice’s call was appropriate, “as long as she doesn’t say her own opinion on the matter which would make her unable to after that judge because she would have prejudged the whole thing.”

Meanwhile, Liberal MP Stephane Dion is unimpressed (and expressed as much during his scrum with reporters after QP today).

I think they are undermining the Chief Justice, maybe because of vengeance. They are unhappy with the decisions, and they lost their mind. They are very vindictive. The Prime Minister have 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.  And he’s not respecting what a Prime Minister should do and should be. And the problem we have also is that what that means for the next process of selecting judges. Who will testify on oath to stay silent about what they will say and hear if it’s not the case, if the Prime Minister, the Minister of Justice or some other top Conservatives did not respect their oath and leaked information that may be right or wrong, we don’t know, to the media.

Ms. Boivin also took issue with the Prime Minister’s assertion that the Supreme Court Act’s stipulations for Quebec’s three spots on the Supreme Court (and the Court’s ruling in this regard) have turned Federal Court judges in Quebec into “second class judges.”

I’m a bit tired of hearing that argument because it’s forgetting the fact that six seats out of nine can be supplied fully by the federal court if that is the governor general in council’s wish for the nominations. So the only limitation is for the three seats for Quebec because of the civil law, the historical system and that makes sense. Now if they want to change that, nobody says they can’t go sit with your partners of the federation. They’re so afraid, they’re so afraid to have an adult discussion, either on the Senate, either on the Supreme Court, the way to nominate and so on that they prefer to trash. It’s so cheap that it’s beyond contempt. I wish the chief justice had the power to cite for contempt what the Minister of Justice and the Prime Minister of Canada is doing right now.

So there we are. One question to ponder over the weekend: How bad is this?

See previously: The Prime Minister’s Office vs. The Chief Justice, Part I