International law group raps Harper over Supreme Court feud

International Commission of Jurists says Harper should apologize to Beverley McLachlin


TORONTO — Prime Minister Stephen Harper’s public criticism of Canada’s top justice impugned her integrity and was tantamount to undue interference with the independence of the courts, according to an international group of eminent judges and lawyers.

As a result, the International Commission of Jurists says Harper should withdraw his remarks and he and Justice Minister Peter MacKay should apologize to Beverley McLachlin, chief justice of the Supreme Court of Canada.

The opinion by the Geneva-based organization follows a complaint from a group of Canadian lawyers and legal academics related to the federal government’s abortive appointment of Federal Court Judge Marc Nadon to the top court in October last year.

Harper and MacKay would later suggest publicly that McLachlin had behaved inappropriately by trying to talk to them about potential legal problems with the proposed appointment.

Their comments were out of line, the jurists said in a written opinion released this week.

“The (commission) sees no necessity for them to have aired their opinions on this matter several months after the fact, in public, and in a manner that impugned the propriety of the chief justice’s actions,” the opinion states.

“The criticism was not well founded and amounted to an encroachment upon the independence of the judiciary and integrity of the chief justice.”

If Harper or MacKay had any issues with how McLachlin had behaved, the review states, they should have handled the matter confidentially, not made public comments.

Harper’s communications director Jason MacDonald had little to say in response.

“We have seen the letter,” MacDonald said in an email Friday. “We have noted it. I have nothing further to add.”

MacKay’s office had no comment.

The commission — which did not receive requested input from Harper’s office — also urged the government to rethink the opaque process by which it now appoints judges.

What’s needed is an “open process with prescribed criteria based on merit and integrity and without discrimination,” the commission says.

Harper’s appointment of Nadon — despite McLachlin’s effort to “flag a potential issue regarding …eligibility” — led to a successful constitutional challenge that ultimately scuttled his ability to take his place on the court.

The appointment and Harper’s subsequent comments in May that he had ignored her advice because it would it would have been improper to listen to her sparked a furor among many in the legal community, who rushed to her defence.

In a statement in May, MacDonald said McLachlin had called MacKay to discuss the Nadon appointment.

“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,” MacDonald said. “The prime minister agreed and did not take her call.”

A day later, Harper himself said it would have been wrong to talk to McLachlin given that the Nadon appointment was subject to a legal challenge.

The comments prompted the chief justice to issue a rare statement saying she had not tried to weigh in on Nadon’s appointment, only to point out potential problems.

The commission comprises 60 eminent judges and lawyers from around the world and works to promote and protect human rights through the rule of law.


International law group raps Harper over Supreme Court feud

  1. Pity they don’t use a real gavel. A big one.

  2. Perhaps John Ivison feels they are all being immature.

  3. Why apologize? One of Canada problems is too much BS from judges and lawyers, I would like to see them elected and term, no more unlimited term stuff.

    • In the US you can be appointed to their Supreme Court without ever even being a lawyer.

      Canada doesn’t need unqualified people being guardians of the law.

    • What you mean is that you want judges who do what you want, rather than judges who apply the law equally and fairly to all.

      Utter nonsense.

    • Alan Dershowitz , an American renowned lawyer who represented the Claus Von Bulow ‘ Reversal of Fortune ‘ criminal case done an interview on C B C some years ago promoting his book, said Canada Has one of the best judicial court systems in the world, and only wished the US had the same system of appointments, because as elected judges, court cases were never fairly represented because most elected judges made bad decisions putting innocent people in jail because of fear of not being re-elected. Canada doesn’t elected judges, we just need people with good judgement to appoint them, not party hacks.

    • Elected judges are inherently compromised in that, if they wish to remain judges, will inevitably take popular opinion into consideration – even when that opinion runs counter to the law or evidence.

      True justice cannot be a popularity contest. Otherwise, we may as well have trials by polling and do away with the court system altogether.

      • I wonder if Dave would be so quick to want elected judges if he understood he was on the wrong side of popular opinion.

        What happens if the majority of the country are atheists and decide to ban religion? Should judges ignore the law in order to get reelected?

    • it is sad that Harper feels he is about the law. Our legal system is independent for a reason. The only basis for Harper to intervene in such an unprofessional manner, is to force his vitriol upon our nation and undo democratic institutions. Harper is a renegade who needs to be put back in the mail room.

  4. People seem to forget that these “eminent” jurists……

    Are just a bunch of lawyers.

    they have no superpowers…they are not smarter than everyone else….and they DO make mistakes.

    who cares what they have to say. It’s about time someone called them out for what they are.

    • So only people who never make mistakes can make legal decisions? Good luck filling your court.

      In fact, the judicial system is set up with a number of checks and balances, including appeals, so that in the end if one judge, or even two, make a “mistake”, they are corrected as it moves up the legal ladder.

      The SCC do not make mistakes in their legal decisions, because they are tasked with the job of making the decision and settling the law. The fact you disagree with a decision does not make it a mistake. It makes it a decision you do not agree with.

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