LONDON, Ont. – The chief justice of the Supreme Court of Canada insisted Friday there was nothing wrong with how she and her office consulted with the federal government regarding a presumptive nominee to the high court’s ranks.
In a rare public statement, Chief Justice Beverley McLachlin confirmed that her office contemplated a meeting with Prime Minister Stephen Harper to discuss the eligibility of Federal Court judges from Quebec.
“Ultimately, the chief justice decided not to pursue a call or meeting,” said a news release from the Supreme Court that included a statement from McLachlin herself.
“Given the potential impact on the court, I wished to ensure that the government was aware of the eligibility issue,” McLachlin said.
“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.”
The comments came just as Harper himself defended his own actions in the controversy that surrounded the nomination of Marc Nadon, a semi-retired Federal Court of Appeal judge from Quebec who in March was ruled ineligible by the very panel of justices the prime minister wanted him to join.
Harper said he consulted constitutional and legal experts both within and outside the government, and they agreed there would be no problem in nominating Nadon to one of the three spots on the court reserved for Quebec judges.
It would have been “totally inappropriate” to have consulted the Supreme Court justices themselves about the appointment, Harper said.
“The other suggestion that has been made is that rather than consulting experts from outside, I should have consulted judges who would eventually be ruling on the case,” Harper told a news conference in London, Ont.
“I believe that would be totally inappropriate.”
Were the prime minister or other minister of the Crown to consult a high court judge about a case due to come before the courts, “I think all the opposition, the media and the legal community would be completely shocked by that kind of behaviour,” Harper said.
“What I did was appropriate: I consulted both internal and external constitutional experts and I allowed the Supreme Court to make its own decision.”
Harper also said the decision to reject Nadon means that Federal Court judges from Quebec are essentially ineligible to sit on the high court, a circumstance he said he considers unfair.
“Through this decision, the reality is that the Supreme Court has decided that a Quebec judge at the Federal Court is a second-class judge,” he said.
“All the other judges from all the other provinces have the possibility of a promotion to the Supreme Court, but not Quebec judges — they no longer have that right, as others do.”
On Thursday, Harper’s office issued a statement that suggested McLachlin had tried to speak to the prime minister about his plan to nominate Nadon — a characterization Justice Minister Peter MacKay did little to discourage.
“Clearly there was an issue over a pending appointment and after having spoken to the chief justice, it was my considered opinion that that call shouldn’t take place,” MacKay said Friday at an event in Halifax.
“It was ultimately (Harper’s) decision whether he spoke to her or not, but I just felt as justice minister that it was not an appropriate call.”
Thursday’s extraordinary statement was prompted by a media report that said Conservative government members have become incensed with the top court after a series of stinging constitutional rebukes.
Among those government setbacks was the eventual court ruling that Nadon was not qualified under the Supreme Court Act.
The nine-member court has been short one justice for almost a year as a result of the bungled appointment.
Harper’s chief spokesman issued a statement late Thursday saying that McLachlin “initiated” a call to MacKay to discuss the Nadon appointment at some point during the selection process.
“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,” Jason MacDonald said in the statement.
“The prime minister agreed and did not take her call.”
The PMO’s statement was released while McLachlin was participating in an event at the University of Moncton where she was delivering a speech. She was unavailable for comment Thursday.
Earlier, however, the Supreme Court’s executive counsel issued his own extraordinary statement, saying McLachlin’s advice had been sought by the committee of MPs vetting possible Supreme Court nominees.
“The chief justice did not lobby the government against the appointment of Justice Nadon,” said the statement from Owen Rees, the court’s executive counsel.
“She was consulted by the parliamentary committee regarding the government’s shortlist of candidates and provided her views on the needs of the court.”
McLachlin’s office pointed out to both MacKay and the prime minister’s chief of staff that appointing a Quebec justice from the Federal Court of Appeal could pose a problem under the rules — an issue Rees said was “well-known within judicial and legal circles.”
Rees wrote that McLachlin “did not express any views on the merits of the issue.”