The Justice Minister suggests the Chief Justice started it

One shouldn’t respond to anonymous Conservatives apparently

The lesson here, apparently, is that one should not bother responding to the allegations of anonymous senior Conservatives.

Meanwhile, the mess runneth over.

L’Affair Nadon itself will not end, or at least it is not over yet, most especially not with a new report this evening that the Prime Minister’s Office, at some point, attempted an end run around the possibility that their desired appointee might be found ineligible for the Supreme Court.

And if Conservatives have some desire to get away from aspects of the furor over last week’s dramatic exchange of statements between the offices of the Chief Justice and the Prime Minister, they seem not quite willing to walk away.

Unwilling to fully engage the tempest, the Prime Minister speaks in code. Asked today by Thomas Mulcair to apologize to the Chief Justice for what the NDP leader termed a “vile attack,” Mr. Harper again retreated to his vague allusion of the day before.

“Mr. Speaker,” the Prime Minister said, “last week, it was suggested that I was not aware of a question about eligibility for appointment of judges to the Supreme Court.”

Who would do such a thing? The Prime Minister did not say.

When Justin Trudeau later wondered if the Prime Minister might withdraw his remarks about the Chief Justice, Mr. Harper offered a similar version of events.

“Mr. Speaker, once again, as I have said before, it was alleged last week by another source that the government, myself particularly, were not properly informed of issues of eligibility on the Supreme Court appointment,” the Prime Minister explained. “As I said, that is clearly not the case. In fact, because I was fully aware of this matter and also aware of the fact that it could be brought before the courts, and eventually was brought before the courts, that we decided to seek advice from outside the courts from independent experts and we followed that advice. Those actions on my part, and on the part of the government, were entirely appropriate.”

So there. But so who is this mysterious source who so impugned the Prime Minister’s grasp of the issue? The Prime Minister’s Office won’t say. And so perhaps we will have to always wonder.

But if the government side was content to leave it at that this afternoon, Liberal justice critic Sean Casey was apparently not yet ready to let it go. And so was Peter MacKay apparently provoked.

Rising on a point of order after Question Period, Mr. Casey argued that comments of the Justice Minister on Monday constituted an unparliamentary attack on a judge. If there was criticism in what Mr. MacKay said it was in inference, but Mr. Casey seemed at least to want to draw the government into renouncing any perception that the Chief Justice had been maligned.

“Rather than parse words and dance around this issue, I ask the ministers responsible to withdraw any references made regarding the chief justice that might even remotely cast aspersions upon her conduct,” he said. “I would suggest to the members in question that rather than seek to defend such comments as permissible exercises, they should seek to clarify any misconceptions that the public may have gleaned from the debate.”

Rising to respond, Mr. MacKay seemed mostly unmoved. “Mr. Speaker, I listened very attentively to the honourable member, the justice critic for the Liberal Party, and I was waiting with great anticipation for the point in his presentation when he used actual words that could be attributed to me—and I invite the Speaker, as I know he will, to review Hansard—that would in any way fit the description which he and others in this place have attributed to comments made by myself or the Prime Minister that would be categorized as an unprecedented attack, impugning character, imparting motives,” he said. “That is simply not true. His characterization, similarly, is untrue and unsupported by words that could be attributed to me or found anywhere in Hansard.”

He might’ve left it there, but now he wanted to defend himself: Mr. MacKay challenging the NDP’s leader earlier suggestion that he should have known that the Nadon appointment would be rejected.

Then, like a child caught by his mother while fighting with his sibling, the Justice Minister would suggest it was the Chief Justice that started the current controversy.

“This is now, obviously, I would suggest for some, the inside of the inside of a making of a baseball for most Canadians,” he said, moving Peter Van Loan, seated beside him, to laugh, “but the reality is that the government, the Prime Minister and myself sought legal advice, received said advice, and acted appropriately. I also note for the record that this entire subject began when a Supreme Court spokesperson released a statement to the press, to which we felt it was incumbent to respond and clarify.”

So you see it is the Chief Justice who started this.

Mr. MacKay actually flirted with something like this point on Monday. Asked by Mr. Casey about the anonymous Conservatives who had apparently whispered provocative things in John Ivison’s ear, the Justice Minister had responded that, “what I can tell the honourable member once again is that I cannot comment on the suggestion that somehow disgruntled, unnamed Conservative supposed sources who spoke to the press would somehow bear any credence on the decision by the Supreme Court justice’s office to release a press release on the subject.”

In that case, Mr. MacKay seemed to be questioning whether the Chief Justice had been justified in responding to those anonymous senior Conservatives—a Conservative apparently not seeing much in the allegations of Conservatives, a Justice Minister apparently unconcerned that someone would be claiming to know about the Chief Justice’s dealings with the government.

You can review the Chief Justice’s first statement here. It is unclear what, in those two paragraphs, needed to be clarified. It is also unclear what, if anything, there was when all we had were a statement from Beverley McLachlin and those allegations of those anonymous senior Conservatives (Does Mr. MacKay now refute those allegations?). Except, of course, for the content of those allegations and Ms. McLachlin’s assurance that nothing untoward had occurred (What would the PMO have said if Ms. McLachlin had released a statement and it was asked for comment on the allegations? Could those allegations really have been left unchallenged?)

In clarifying, it was the Prime Minister’s Office that used the word “inappropriate” to describe a potential conversation between the Prime Minister and the Beverley McLachlin and it was later the Prime Minister’s that specifically described the Chief Justice’s request of the Prime Minister as “inappropriate.” And it is those comments the Prime Minister doesn’t seem to want to acknowledge anymore.

We might work backwards and attempt to sort out at which point this became everything that it is. But it’s unclear why we should stop at or limit ourselves to Beverley McLachlin’s two paragraphs. Indeed, it wasn’t her idea to nominate Marc Nadon.




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The Justice Minister suggests the Chief Justice started it

  1. Remind me to send Mackay a rattle for Xmas.

  2. When all else fails, speak in code.

    Not that it will work this time.

  3. One thing: you’re right to point out that it wasn’t the CJ’s idea to nominate Justice Nadon. But importantly, it also wasn’t her idea for the Supreme Court to consider his eligibility. The only reason the SCC was required to rule on his eligibility is because the PM asked them to! (Cabinet used its powers under the Supreme Court Act to refer the issue to the SCC directly, thereby short circuiting the ongoing legal challenge in federal court.) Had there really been an issue with the CJ, the PM could have allowed the process to unfold in federal court.

    Also, more simply: the government could have asked the CJ to recuse herself from the case at the time of the reference.

    • Rocco the leftwing lawyer challenged the appointment .

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