Stephen Harper, Beverley McLachlin and an historic mess

Is the Prime Minister content to let the fire burn itself out?

Justin Tang/CP

Justin Tang/CP

What is this, this issue of the Chief Justice and the Prime Minister? Or, put another way, how bad is it?

The situation, whatever it is, is generally described as “unprecedented,” so we might at least appreciate that we have been given a chance to experience history. Some day we’ll get to tell our grandkids about this. If only to explain to them why, after several decades of changes in our expectations, it was by then accepted that differences of opinion between the executive and judicial branches of our government were settled with mixed-martial-arts matches on the lawn of Parliament Hill.

At the very least this will now be added to Stephen J. Harper’s permanent record, under the section marked “democracy.” How big of a reference it receives and how black the ink that is used to mark it remains to be seen. Perhaps, as has been suggested, the Prime Minister could show leadership here and depoliticize the situation. Perhaps, as has also been suggested, this’ll all be forgotten in a couple of weeks. Perhaps the latter is the best we can hope for.

Indeed, Mr. Harper seemed today to want to pretend that not much of anything had happened over the last six days.

Thomas Mulcair attempted first to get the Prime Minister to commit one of two versions of the Chief Justice’s attempt to make contact with the Prime Minister—that it was unnecessary, as the Justice Minister said yesterday, or that it was inappropriate, as the Prime Minister seemed to suggest last week (and his office seemed to make explicit).

“Mr. Speaker,” Mr. Harper explained, up-turning his palms as he went, “last week, it was suggested that I wasn’t informed about a legal question regarding eligibility to the Supreme Court before the government’s nomination. On the contrary, I was well aware of this question and it is for this reason that I consulted legal and constitutional experts. We acted according to their advice.”

The NDP leader narrowed in on his concern.

“Mr. Speaker,” he said, “the Prime Minister’s personal attack—”

The Conservative benches grumbled and groaned.

“—against the chief justice is absolutely unprecedented in the history of Canada.”

Mr. Mulcair proceeded to wonder if the Prime Minister would commit to not trying again to appoint Marc Nadon. Mr. Harper stood and reminded the House that the government was committed to follow the “letter and spirit” of the Supreme Court’s ruling and then the Prime Minister turned to the NDP leader’s preamble.

“On the matter at hand, as I have said before, last week it was suggested that the government, before making its appointment, had not been aware of the eligibility question,” Mr. Harper repeated. “On the contrary, the government and myself were well aware of that. We felt that this question may come before the court, and for that reason we consulted with independent legal and constitutional experts. We acted according to their advice.”

Who suggested last week that the government was not aware of the eligibility question? The Prime Minister didn’t specify and his office has yet to clarify.

How possibly could that explain what occurred late last week? Feel free to guess.

“Mr. Speaker,” continued  Mr. Mulcair, “11 former presidents of the Canadian Bar Association—”

“Oooh!” mocked the Conservatives, either dismissing the importance of the CBA or merely mocking Mr. Mulcair’s emphatic pronunciation of the word “bar.”

“—have just written an open letter in which they say that the Prime Minister’s disrespect for the Supreme Court harms the very workings of our constitutional system of government. It is also unprecedented.”

Mr. Mulcair looked at Mr. Harper and wondered if he might “apologize to the chief justice and to Canadians for this unprecedented and, indeed, inexplicable attack on one of our most respected democratic institutions, the Supreme Court of Canada.”

The New Democrats stood to applaud this sentiment. Mr. Harper stood to dismiss it.

“Mr. Speaker,” he said, “I categorically reject the premise of that question.”

Perhaps he disagrees with the unprecedented bit. Perhaps he spent the weekend digging up a previous example of furors ensuing after anonymous sources, the Chief Justice and the Prime Minister offered competing versions of private events through the press.

“The fact of the matter is this,” Mr. Harper now clarified. “In terms of the eligibility question, it was my understanding that that was a matter that could go before the court. In fact, the government later referred the matter to the court. For that reason, I chose not to have a discussion with the court on that question but instead to discuss it with independent legal experts and we acted on their advice.”

This was close to getting us back to the questions at hand. Justin Trudeau would stand now and accuse the Prime Minister of showing “disdain” and “contempt” for our institutions and Mr. Harper would plead that, on the contrary, it was precisely because he respected the Supreme Court’s independence that he elected to not speak with the Court on this particular matter.

A pity that Bob Dechert was not sent up to speak this afternoon. The parliamentary secretary’s explanation of events yesterday might be hard to perfectly square with the government’s own words and actions, but it was at least some attempt to explain. And it included the phrase, “Nobody is attacking the Chief Justice’s credibility here.”

Will the Prime Minister or Justice Minister offer any such assurance? If the government isn’t attacking the Chief Justice’s credibility, it might at least clarify as much. Or would it be too difficult to explain? Is the government  Is this the Internet’s fault for making it impossible to have a coherent conversation about anything?

What is this otherwise? Petty politics? A faux pas by the Chief Justice? An unjustified attack on the highest-ranking member of the judicial branch of our government? It is possibly some combination thereof—an intervention by the Chief Justice of debatable consequence turned into an entirely unnecessary, and unbecoming, controversy.

In addition to “unprecedented,” how might the events of the last six days be described? Unfortunate? Dangerous? Dumb? It might at least be said to be discomfiting, insofar as we might generally prefer that the government not be criticizing the behaviour of a Supreme Court justice. Even were it necessary to question a Chief Justice’s actions, we might hope that a government would do so in a more serious manner—officially broaching the matter with a written statement months after the fact and only after anonymous Conservatives provoke a response from the Chief Justice seems a particularly unfortunate approach. (Is the government not concerned that anonymous Conservatives would be making claims to a reporter about otherwise private discussions between the government and the Chief Justice?)

What we’ve witnessed might be described as both serious and unserious business.

Did the government back into a situation—John Ivison, who started this all with his reporting, posited on the CBC this evening that there was no great strategy here—it is now unable or unwilling to get out of? Is this the end of it? Or is this the start of something?

Even if we might somehow imagine that this has all been catnip for the Conservative base—and the most suspicious might hold on to this however quickly the Prime Minister tries to pretend to forget it—can that boost possibly have outweighed the potential damage to this government’s re-election efforts?

It is at least, for now, an opportunity for Mr. Trudeau, the man who the Conservatives say is in over his head, to stride into the foyer of the House of Commons, as he did today, and venture that “the behaviour of the Prime Minister is beneath the office he holds.”

Nearer the end of Question Period, Liberal MP Irwin Cotler, the former justice minister, had stood with what he said was a “simple question.” Actually it was three questions, the latter two designed to account for an answer to the first.

“Does the Minister of Justice believe that the Chief Justice should flag the issue of a Supreme Court candidate’s eligibility when consulted?” Mr. Cotler asked. “If yes, why malign the Chief Justice? If no, why consult the nation’s highest jurist if the government did not value her counsel and advice?”

These questions are almost definitely worth considering, but the current Justice Minister chose to not answer any of them.

“Let us not burn the house down,” Mr. Dechert said yesterday, “over what is a simple variance in wording.”

Notwithstanding any disagreement over the parliamentary secretary’s understanding of the problem here, his basic advice is sound. We should generally hope to avoid burning our house down, most particularly when the house could be understood to be the principles of engagement that ensure a functioning democracy with a depoliticized (to borrow Lorne Sossin’s term) Supreme Court.

Is Stephen Harper now hoping that the fire that was started last week will burn itself out? Perhaps the best case scenario now is that the fire leaves only a small burn mark on the carpet.

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