The government's attempts to explain the Chief Justice imbroglio

The McLachlin mess: The Harper government’s attempts to explain

The unexplained explanations

Sean Kilpatrick/CP

Sean Kilpatrick/CP

Before we all forget about that time the Prime Minister accused the Chief Justice of doing something inappropriate, it’s probably worth dwelling one last time on the explanations that Conservatives seem content to leave behind (and possibly even believe themselves).

Here again is the column by John Ivison that started everything. And here again is the entirety of the statement from the Chief Justice’s office on the matter of the Marc Nadon appointment.

The Chief Justice did not lobby the government against the appointment of Justice Nadon. She was consulted by the Parliamentary committee regarding the government’s short list of candidates and provided her views on the needs of the Court.

The question concerning the eligibility of a federal court judge for appointment to the Supreme Court under the Supreme Court Act was well-known within judicial and legal circles. Because of the institutional impact on the Court, the Chief Justice advised the Minister of Justice, Mr. MacKay, of the potential issue before the government named its candidate for appointment to the Court. Her office had also advised the Prime Minister’s Chief of Staff, Mr. Novak. The Chief Justice did not express any views on the merits of the issue.

These two paragraphs were apparently something of a problem for the government. The Canadian Press reports that “Among Conservatives, an internal narrative has emerged that McLachlin herself is to blame for fuelling the controversy, having responded to a query by a National Post reporter in the first place.” CP then quotes Conservative MP Stephen Woodworth as saying the Prime Minister was somehow attacked for not speaking with the Chief Justice and thus had to respond, but it’s not clear who, in that understanding, attacked the Prime Minister.

Justice Minister Peter MacKay made that internal narrative public last Wednesday when he stood in the House and offered 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.”

Setting aside the question of whether or not the Chief Justice should have responded to the allegations of anonymous senior Conservatives, what precisely had to be clarified about the Chief Justice’s statement? His office won’t say.

Contra Woodworth’s understanding, it doesn’t seem to have been until the Prime Minister’s Office responded to the Chief Justice’s statement that there was any suggestion that the Prime Minister had refused to take a call from the Chief Justice.

Here again is that statement from the PMO.

Neither the Prime Minister nor the Minister of Justice would ever call a sitting judge on a matter that is or may be before their court.

The Chief Justice initiated the call to the Minister of Justice. 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. The Prime Minister agreed and did not take her call.

The Department of Justice sought outside legal advice from a former Supreme Court justice on eligibility requirements of federal court judges for the Supreme Court of Canada. This legal advice was reviewed and supported by another former Supreme Court justice as well as a leading constitutional scholar, and was made public. None of these legal experts saw any merit in the position eventually taken by the Court and their views were similar to the dissenting opinion of Justice Moldaver.

As CP notes, here is where the matter became something else entirely. Now the government was suggesting that the Chief Justice had done something inappropriate. An allegation the Prime Minister’s Office later clarified to me.

But when the Prime Minister returned to the House last week, he basically refused to repeat the allegation. Instead, he settled on an explanation that somehow someone had questioned his knowledge and so his office had sought to clarify.

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

And also: “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.”

Who suggested this? Who made such an allegation? The Prime Minister’s Office won’t say.

Meanwhile, the parliamentary secretary to the justice minister attempted at one point last week to deny the suggestion that the Chief Justice had been accused of doing anything inappropriate and even went so far as to say that “Nobody is attacking the Chief Justice’s credibility here,” a reassurance that no one else in the government, to my knowledge, has so far repeated.

So after the Chief Justice saw fit to respond to allegations of impropriety by anonymous senior Conservatives, the Prime Minister’s Office came forward with an implicit allegation that the Chief Justice had behaved inappropriately, an allegation it later made explicit, but an allegation that the government has seemed reluctant to repeat since and an allegation the parliamentary secretary has attempted to refute, while the Justice Minister has ventured that the Chief Justice started all of this and the Prime Minister has suggested someone impugned his credibility without specifying who that someone is.

And barring any further comment, that’s where things will apparently be left to stand.

Perhaps at his next media availability, the Prime Minister will take a moment to expound on this and explain precisely, and in detail, his view of this episode—what precisely was inappropriate about what the Chief Justice did, was it inappropriate for her to contact the Justice Minister and Mr. Harper’s chief of staff, if the government felt she did something inappropriate why didn’t it say so sooner, should she really have let those anonymous attacks stand without response, would that not have harmed the court, why did the government feel it necessary to accuse her of doing something inappropriate in its initial statement, who questioned the Prime Minister’s knowledge of the law and does he agree with the parliamentary secretary who said the Chief Justice’s credibility was not being attacked here?

Or perhaps he is resigned to the idea that Twitter has made it impossible to carry on a thoughtful conversation about anything.

Ten years from now, someone—probably Paul—will write a book that explains the exchange of statements between the PMO and the Chief Justice and the seven days that ensued. For now we might debate whether this is indicative of a particular era in political communication or a uniquely odd moment. I think I might argue for some combination thereof.

See previously: The Prime Minister’s Office vs. The Chief Justice, The Prime Minister’s Office vs. The Chief Justice Part II, Did Beverley McLachlin do anything wrong? Did the Prime Minister?, The Harper government and the Supreme Court: The debate continues and The unappointment of Marc Nadon as slapstick


The McLachlin mess: The Harper government’s attempts to explain

  1. “unexplained explanations” Channelling Donald Rumsfeld perhaps?

  2. Sure Aaron, let’s just blame twitter. Cept it’s not the first time this govt has looked like it can’t make up it’s mind if it wants to govern or play at being populist anti-establishment rebel is it?
    It’s long past time to put these guy’s on the big boy’s couch and call in the Doctor…maybe hand out some prozac? Lots of side effects, but it does seem to mitigate urges toward unnecessary and unprovoked nastiness. Wonder if it does anything for terminal political stupidity syndrome? [TPSS]

    • Sure Aaron, let’s just blame twitter.

      You know Wherry. Always shilling for the Tories.


  3. The Supreme Court judge appointment process is highly flawed and needs to be fixed, it has to made completely transparent.

    No more cliques of lawyers appointing their own.

    • They don’t appoint them, the pm does.

      And it would be foolish for them to cease appointing lawyers.

      For the love of God, man, do you even think before you type?

      • If clues were shoes you’d be barefoot.

    • You are right! Lawyers should have no say in appointing Justices.

      And party members should have no say in choosing party leaders. Doctors should have no say in choosing medical procedures either.

      Because if you know something about something, and therefore know who is good at what they do and who is not, then clearly you are biased.

      Lawyers should choose your medical procedure for you.
      Politicians should choose your lawyer for you.
      And doctors can choose the judges.

      I think you are on to something!

      (PS – you do know that Harper can choose anyone he wants so long as he follows the law. That means he can put Ezra Levant on the SCC so long as Ezra represents a province other than Quebec. But hey – that would be a fact that contradicts your little rant so no doubt you will ignore it).

  4. Over time, there have been changes to the appointment process. These changes came as a response to criticism that the Prime Minister had too much power in the appointment process and that there was no input from Parliament. In 2004, former Prime Minister Paul Martin created a special ad hoc parliamentary committee to review appointments to the SCC The committee would then report its findings to Parliament.

    In 2006, Prime Minister Stephen Harper announced further changes to the appointment process of SCC justices. The changes came in the form of a directive from the Prime Minister that required nominees to undergo three hours of questioning before an all-party House of Commons committee.[8] Despite the changes, the ultimate decision still rests with the Prime Minister and the committee cannot veto a nominee.

    In the case of Justice Fish’s replacement, the Justice Minister, the Prime Minister, the Chief Justice, Quebec’s Chief Justice and other legal experts are consulting on a list of candidates that will be given to the committee for review. The committee will then provide an unranked list of candidates back to the Justice Minister and the Prime Minister. This list will be based on the committee’s own consultations with potential candidates in addition to reviewing their resumes and past judgments

    Nadon was not on the list, the legal cliques collective knickers were then in a knot, then we had lawyer Rocco challenge the appointment, the ruling was very thin and shaky.

  5. Not really sure what additional explanation you’re looking for – seems pretty simple to me.

    Committee invites CJ to consult on “needs of Court” and shows her a short list of candidates, including (presumably) Nadon. CJ then initiates contact with Justice/PMO to advise of “potential issue” of appointing a FCA justice to SCC. Safe assumption Nadon was only FCA justice on short list and, accordingly, only person to whom “issue” CJ is unilaterally raising with Justice/PMO could possibly relate. N/W/S having intitiated contact to raise the issue, CJ “doesn’t express view on merits” (rolls eyes). Harper doesn’t take CJ’s call because he clings to this archaic notion that the SCC shouldn’t meddle with his constitutional right to appoint to SCC (lord knows, they meddle enough with every other aspect of government). Harper consults with constitutional law experts (including the chap who authored “the single most-cited book (on constitutional law) in decisions of the Supreme Court of Canada”) and decides to appoint Nadon anyway. SCC renders decision and crap hits the fan. Unbiased observers read majority and minority reasons and silently hope Moldavor is quickly made the next CJ, with the proviso that he never accept an invitation from the Parliamentary Committee to review the short list of candidates.

    • You’re forgetting Rocco the leftwing lawyer who conveniently challenged the appointment.