The Harper government and the Supreme Court: the debate continues

All sorts of questions that might be answered

Sean Kilpatrick/CP

Sean Kilpatrick/CP

The Prime Minister might not be interested in discussing the controversy around his office and its comments about the Chief Justice, but all sorts of other people still are and all sorts of questions remain unanswered.

The Canadian Council of Law Deans is displeased.

There are very few issues on which all members of the legal community spontaneously agree.  The unanimous condemnation of the government’s statements regarding Chief Justice McLachlin reflects our shared sentiment that this is an unfortunate and unprecedented attack on one of the most important institutions of Canada’s constitutional democracy.  We call on the Prime Minister and the Minister of Justice to immediately and unequivocally withdraw any statement that could be understood as impugning the integrity of the Chief Justice and the independence of the Supreme Court of Canada.

Liberal MP Irwin Cotler piles up eight questions for the government to answer (and within those questions he adds other questions) and Independent MP Brent Rathgeber assigns blame to the Justice Minister.

Looking at it another way, Rainer Knopff and Dennis Baker pose three questions for the the Chief Justice (to which my colleague John Geddes poses a question).

Were you so inclined, there are still scraps of comment from the government that might be picked over.

Yesterday, the Prime Minister offered this interpretation of the Supreme Court’s ruling in the Nadon reference.

The Supreme Court decision on Mr. Nadon is clear. As I said, unfortunately there are consequences to that decision. They are now saying that Federal Court judges from Quebec are second class judges and are ineligible to sit on the Supreme Court like their counterparts from the other provinces do. This will make it hard to recruit Quebec judges to the Supreme Court and it will limit the national character of this important federal institution.

The NDP’s Francoise Boivin has already challenged this idea that there are now “second class judges” from Quebec. Otherwise, the Supreme Court seems to have made it this far without a federal court judge from Quebec occupying one of the province’s seats, so what precisely is the problem now? Is it that Quebec judges will have to decide between accepting Federal Court appointments and remaining eligible for the Supreme Court? Are there, as was posited in the hypothetical to me as I kicked this around with someone today, Quebec judges who have accepted Federal Court appointments who might now regret it? Should these be great concerns?

That the Prime Minister might not want to seriously engage with this is perhaps understandable. But then he’s almost mostly responsible for everything that has ensued. In hindsight, does he wish the Chief Justice’s call to the Justice Minister had been enough to convince him to avoid Mr. Nadon?

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? and Bob Dechert: ‘Nobody is attacking the Chief Justice’s credibility here