Disorder in the court

The public rift between Harper and McLachlin hints at a promising new Tory campaign strategy

Sean Kilpatrick/CP

Sean Kilpatrick/CP

Extraordinary as their recent public feud has been, conflict between Prime Minister Stephen Harper and Chief Justice Beverley McLachlin of the Supreme Court of Canada might have been inevitable. The two most powerful Albertans in Ottawa—Harper an adopted son of Calgary, McLachlin a native daughter of Pincher Creek—rose by routes that arguably put them on a collision course. He climbed in conservative circles where deep concerns about judges overstepping their proper bounds in the era of the Charter of Rights and Freedoms have long been common intellectual currency. She was first appointed a judge in British Columbia in 1981, the year before Pierre Trudeau’s constitutional reforms introduced the Charter, and so has spent much of her storied judicial career interpreting laws according to it.

But framing this unprecedented clash in terms of the career paths of the combatants fails to capture its intensely personal flavour. It was sparked by the McLachlin court’s unanimous [my mistake, it was a 6-1 ruling; thanks to readers for pointing out this mistake] decision earlier this year to reject Harper’s surprise choice of Marc Nadon to join it by filling a Quebec vacancy, on the grounds that as a federal court judge, rather than a Quebec judge or practising lawyer, Nadon wasn’t eligible. Months earlier, McLachlin had been consulted on the nomination by Justice Minister Peter MacKay and a panel of MPs, which is routine. It turns out she also looked into talking directly to Harper on the matter last summer, which is not. MacKay recommended against it, and Harper agreed. Controversy erupted only last week when Harper’s spokesman termed McLachlin’s idea of a chat with the PM on the issue “inadvisable and inappropriate.”

Applying the word “inappropriate” to the behaviour of the country’s top judge was nothing short of shocking. Harper explained that the problem, as he saw it, was that he anticipated a challenge to Nadon’s appointment might eventually come before McLachlin’s court, which is indeed what happened. But McLachlin said she merely tried to flag the likelihood of that legal obstacle, without improperly tipping her hand on how she thought her court might ultimately decide it. “At no time did I express any opinion as to the merits of the eligibility issue,” she said in a statement issued by her office. “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.”

Although a few political science professors said McLachlin acted inadvisably by pressing her point, the legal establishment closed ranks behind her. Joel Bakan, a University of British Columbia law professor, stressed that there is no “firewall” between chief justices and prime ministers in the Canadian system, and so there’s nothing wrong with McLachlin proposing to talk with Harper—as long as she didn’t mean to say anything that prejudged a potential future case. To suggest that she intended to cross that line, Bakan added, is to indulge in a conjecture that cuts against everything on the record of the longest-serving chief justice in Canadian history. “She has shown nothing but the utmost integrity, competence and leadership in running the Supreme Court for the many years she’s been doing it,” he said.

The tension escalated for several days, during which Harper’s office spurned a plea from the Canadian Bar Association for a statement making it clear that McLachlin had done nothing wrong. Then Tory MP Bob Dechert, a lawyer who serves as MacKay’s parliamentary secretary, seemed to try to cool down the argument. He told CBC the uproar amounts to a misunderstanding about how Harper meant “inappropriate” to be understood. Dechert said the danger in a direct conversation between the chief justice and the Prime Minister was that it might later have been suggested that Harper—not McLachlin—had voiced an opinion on that future Nadon case. “What you’ve turned around is putting the ‘inappropriate’ in the wrong place,” Dechert said. “Simply, what we’re saying, if you listen to the Prime Minister’s quote, he said it would not be appropriate for me to speak to a judge who could be deciding this in the future.”

In fact, Harper’s office had earlier told Maclean’s in an email that what was inappropriate was for the chief justice to ask to discuss with the Prime Minister “an issue that could ultimately end up before their court.” Still, Dechert’s bid to remove the implication of wrongdoing by McLachlin seemed to signal a desire inside the government to end the crisis. Not all Conservatives favoured a tactical retreat. Among Tory MPs and party officials, the notion that judges need to be cut down a notch is widely held. That conviction has grown more pronounced through a series of setbacks this year at the Supreme Court, culminating with last month’s unanimous, landmark opinion that Harper cannot go ahead with his plan to work around the provinces by unilaterally reforming the Senate.

The very public rift between the Harper government and the McLachlin court isn’t only a reaction to recent rulings. Back before he won the 2006 federal election, Harper signalled that he fully expected to butt heads with judges. “We have no alternative but to accept the checks; they’re part of our system,” he said. “Judges are named; judges can’t be removed except under extraordinary circumstances.” During his first few years in power, however, any conflict was muted. Harper appointed five judges, all acceptable to Conservatives, to the nine-seat Supreme Court without much fuss.

The Senate case, though, raised the stakes and changed his tone. In a major speech last fall, Harper lumped judges together with his partisan opponents when it comes to frustrating his upper chamber reforms. “We were blocked by the other parties in the minority parliaments, and now we are being blocked in the courts,” he told a Conservative convention in Calgary. At that time, only Quebec’s Court of Appeal had ruled against his Senate reform scheme. By saying “courts,” he seemed to be assuming that his plan would be rejected by the McLachlin court, too.

There was one earlier episode when Harper’s government looked eager to publicly battle judges. Jason Kenney, now employment minister, gave a speech at Western University’s law school in early 2011. Kenney was immigration minister at the time, and he sharply criticized some judges over how they were handling refugee appeals and reviews. That drew a rebuke from the Canadian Bar Association, whose president suggested Kenney wanted the courts to follow a “political agenda.” Arguably more interesting now than details of that argument, however, are the identities of the top advisers Kenney was relying on at the time. His chief of staff was Howard Anglin; his communications director was Alykhan Velshi. Both are lawyers who had previously worked in Washington, where they teamed up to write opinion articles for U.S. conservative publications about, among other subjects, clashes between the George W. Bush administration and the U.S. courts.

Where are they now? In the top ranks of Harper’s aides. Anglin joined his staff last spring—just as the Prime Minister’s Office was launching the hunt that would lead to Nadon’s nomination—as senior adviser for legal affairs and policy. Velshi was promoted to the key PMO post of director of issues management last summer, after serving since late 2011 as its director of planning. The Harper government is too opaque to allow detailed accounts to leak out of how Anglin and Velshi have influenced the Prime Minister’s handling of the court, but their titles alone leave little doubt they must be important behind-the-scenes players.

An intriguing bit of background is that Nadon drew the admiring attention of Conservatives by writing a dissenting opinion in a 2009 federal court case involving the rights of Omar Khadr, the Canadian then being held at the U.S. military detention centre in Guantánamo Bay. Nadon essentially said Canadian courts should stay out of foreign policy as it touched on Khadr. Back in 2006, in their Washington days, Anglin and Velshi co-wrote a piece for the conservative National Review, called “Who’s really ignoring the Geneva Conventions?” It defended Bush and criticized the U.S. Supreme Court in a closely related American legal battle over the rights of the Guantánamo detainees. It’s not hard to see why Anglin and Velshi might have carried strong convictions into any involvement with the Nadon issue in their PMO jobs.

Beyond the views of such influential figures, the politics of setting up a public clash with the top court is worth considering. Not many voters will worry about the Nadon appointment being quashed, and the constitutional nuances of Senate reform don’t make for zingy platform material. But the Harper Conservatives do plan to run in 2015 on their law-and-order agenda, and highlighting conflict with the courts on that highly charged set of issues is a more promising campaign strategy. Polls suggest most Canadians don’t have much faith in judges on crime. An Angus Reid survey in 2012 found just 31 per cent trust the Supreme Court of Canada, and a recent internal Justice Department study, obtained by the Canadian Press under the Access to Information Act, concluded that “the public generally believes that sentences are too lenient.”

Public opinion could be further shaped by upcoming decisions in high-profile legal challenges to Harper’s tough-on-crime policies. The top court recently agreed to hear a constitutional challenge to the government’s imposition of mandatory minimum sentences for illegal gun possession. Another law, making criminals pay financial penalties for victim services, which lower court judges have skirted in some cases, might also reach the Supreme Court. How the judges are likely to rule on these and related cases is by no means obvious. Veteran Supreme Court watchers view several of its judges as quite deferential to government on criminal law issues.

It’s not even clear that the court has been as tough on the Harper government in the recent past as is often suggested. Sonia Lawrence, a professor at York University’s Osgoode Hall Law School in Toronto, says that of 11 constitutional cases that reached the Supreme Court last year, the federal government was on the losing side in only one—although that was the highly publicized decision that struck down the laws banning activities surrounding prostitution, like running a brothel, which forced the government to look for ways to regulate prostitution or devise a whole new approach to prohibiting it. Lawrence also points out that the Senate and Nadon decisions were not Charter-based rulings of the sort usually associated with tension between Canadian politicians and judges. Instead, both cases involved the court stopping the Prime Minister from exercising or expanding his power in ways that raised predictable objections from the provinces.

Harper isn’t prone to responding meekly to having his power constrained, as Canadians who pay any attention at all to federal politics already knew. What they’ve learned from this explosive episode is that McLachlin is equally unwilling to quietly allow her reputation to be tarnished.