The Prime Minister’s Office vs. The Chief Justice

Let us set the scene for the drama that is now unfolding along Wellington Street in Ottawa.

First, the Harper government decided to take a chance and appoint a federal court judge, Marc Nadon, to fill one of the spots on the Supreme Court reserved for a Quebec judge. Then the appointment was challenged. The Harper government then sought to amend the Supreme Court Act, via a budget bill, to more clearly allow for Mr. Nadon’s appointment, while simultaneously sending a reference to the Court to ask both whether Mr. Nadon was eligible and whether Parliament could unilaterally amend the Supreme Court Act as the government was seeking to do.

A majority of the Court—with one dissent—ruled that no, Mr. Nadon was not eligible and no, one of the two amendments was out of order. And so, despite having been sworn in and despite drawing a salary while he waited to find out whether he was eligible, Mr. Nadon’s appointment was voided.

Then, in response to criticism of the appointment, the Prime Minister stood in the House and said that “during hearings and consultations, the NDP said that it did not object to appointing a Quebecker from the Federal Court to the Supreme Court. Now, the NDP has changed its tune” and that “during consultations, all of the parties in the House agreed with the idea of appointing a Quebecker from the Federal Court to the Supreme Court.” But the consultation process that preceded Mr. Nadon’s appointment included both a public hearing and a multi-partisan selection panel that was supposed to conduct its business in confidence and so this raised questions about what the Prime Minister was talking about.

In the meantime, the Supreme Court delivered a ruling on the Senate reference and Conservatives apparently became frustrated with the courts.

That brings us to Wednesday.

National Post columnist John Ivison had apparently heard rumours from Conservatives that “Beverley McLachlin, the Chief Justice … lobbied against the appointment of Marc Nadon to the court.” So he took those rumours to the Court and the Chief Justice’s executive legal officer offered a statement in response.

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.

Ivison’s column was posted shortly after midnight on Thursday morning. Most of Thursday passed without further news. But then, shortly after 6pm, the Prime Minister’s Office issued a statement “in response to media inquiries about comments made by the Chief Justice’s office.”

“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.”

So now the Prime Minister’s Office is seemingly accusing the Chief Justice of making an inappropriate phone call. But when had the call been made? Justice Minister Peter MacKay previously confirmed, at the time of Mr. Nadon’s appointment, that the Chief Justice had been consulted. Was this call apart from that consultation? Was the government denying that Chief Justice had raised the issue to the Justice Minister and the Prime Minister’s chief of staff?

Last night, I asked the PMO for further explanation. So far I have received none. The Star’s Tonda MacCharles is reporting that the call was received in July, during the consultation and selection process. But these are scant details. What precisely occurred here? What, if anything, was inappropriate about it?

I flipped a note to our friend Emmett Macfarlane last night and he offered the following thoughts.

It is not unusual for the Chief Justice to be consulted about appointments to the Court; in fact, it is the norm. It is unusual, however, for the Chief Justice to contact the Minister of Justice to raise concerns about a potential appointment. At worst, it might be an inappropriate judicial incursion into the political process surrounding appointments, particularly because the PMO is alleging she was raising an unsettled legal question. That said, I think we need more details on the context here.

On the flip side, it is also deeply troubling to see the PMO engaging in a political dispute with the Supreme Court like this. I’m not clear on what they expect to gain from a press release that calls into question the Chief’s behaviour or motives, other than to imply she was acting inappropriately. This will be interpreted by many people as an unprecedented attack on the Court and the country’s highest judge.

The bottom line for me is that this is yet another thing that highlights the need for greater transparency in the appointments process. The opposition should drop the secrecy regarding what happened in the selection committee, given the government’s apparent interest in spilling innuendo about what happened. And going forward, Canadians should be privy to what, precisely, is entailed in the selection.

So it’s a Friday morning in Ottawa. The Supreme Court has now been without a full complement of judges for eight months. And the Prime Minister’s Office and the office of the Chief Justice of the Supreme Court are trading written statements about the events that preceded that.