The Supreme Court of Canada

What Happened

In May of 2014, Chief Justice Beverley McLachlin’s integrity was called into question by Prime Minister Stephen Harper and by Justice Minister Peter McKay, over a phone call Justice McLachlin made to the Minister of Justice regarding the purported appointment of Justice Marc Nadon to the Supreme Court of Canada.  


Background

An Inappropriate Call?

The gist of the claim against the Chief Justice was that she had overstepped her role by placing an “inappropriate” call to the Minister of Justice on July 31, 2013 while the appointment process was still underway. The Prime Minister’s Office explained in a public statement, on May 1, 2014:

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 wishes 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 Minister of Justice repeated this allegation on May 5, 2014:

My office was contacted by the office of the Chief Justice. After I spoke with her on that call I was of the considered opinion that the Prime Minister did not need to take her call. Neither the Prime Minister nor I would ever consider calling a judge where that matter is or could be before the court of competent jurisdiction.

In fact, the Chief Justice’s calls on July 31, 2013, to the Minister of Justice and to the Prime Minister’s Chief of Staff was to provide general information about statutory eligibility requirements for an appointment to one of the three Quebec seats on the Court.

Public Criticism

In an open letter to Prime Minister Harper, some 650 lawyers and academics urged him to withdraw his slur on the Chief Justice. The letter sets out what is at stake:

An independent judiciary is vital to the health of any democracy and a foundational tenet of Canada’s constitutional order and the rule of law. Impugning the integrity of the judiciary, including through public and personal criticism of the Chief Justice, represents an attempt to subvert that judicial independence.

Two former Prime Ministers and an aide to a third weighed in, defending the Chief Justice’s phone call to the Minister of Justice and to the Prime Minister’s Chief of Staff as being entirely appropriate and fully consistent with their relationships with Chief Justices of Canada during their administrations. 

Lawyers Mobilize

On May 9, 2014, a group of seven legal academics brought Harper and McKay’s allegations – that the Chief Justice had sought to lobby against the appointment of Justice Marc Nadon – to the attention of Wilder Tayler, Secretary General, International Commission of Jurists (ICJ). This letter of complaint drew the ICJ’s attention to public criticism of the Prime Minister and the Minister of Justice for undermining respect for the independence of the judiciary.

On July 23, 2014, Secretary General Wilder Tayler authored a letter exonerating the Chief Justice and calling upon the Prime Minister and the Minister of Justice to publicly withdraw their allegations or apologize for their public criticism of the Chief Justice. The letter states:

The ICJ considers that the criticism [by the Prime Minister and the Minister of Justice] was not well-founded and amounted to an encroachment upon the independence of the judiciary and integrity of the Chief Justice. […] Such public criticism could only have a negative impact on public confidence in the judicial system and in the moral authority and integrity of the judiciary, and thereby on the independence of the judiciary in Canada.

The Harper Administration’s response was a letter from the Minister of Justice opening with the assurance of his government’s “utmost respect for the judicial institutions of our country” with nothing more about the allegation at hand.

Relevant Dates

  • April 22, 2013: Chief Justice Beverley McLachlin meets with Prime Minister Stephen Harper to formally announce the pending retirement of Justice Morris Fish, effective Aug. 31, and to discuss the needs of the court.
  • May 27, 2013: The Attorney General of Quebec is consulted by the government about the vacancy.
  • June 11, 2013: The federal government announces the process to choose Fish's replacement, including consultations among the justice minister, the prime minister, the chief justice of Canada and others to determine a list of qualified candidates. List to be vetted by a selection panel of five MPs (three Conservatives, one NDP, one Liberal) who confidentially consult with the chief justice and others.
  • July 29, 2013:​ McLachlin meets with the MP selection panel at its invitation to discuss the proposed list of candidates.
  • July 31, 2013:​ McLachlin confidentially calls the justice minister and the prime minister's chief of staff, Ray Novak. Her office later states the call was "to flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court."
  • August 2013: Sometime in August, according to an answer to an order paper question in the House of Commons, the government seeks the advice from retired Supreme Court justice Louise Charron about appointing a Federal Court judge to represent Quebec. She is paid $4,235.
  • Aug. 17, 2013: Justice Minister Peter MacKay, in an interview with the National Post, states, "There are provisions right now that could be interpreted as excluding federal judges from Supreme Court appointments."
  • September 2013: Sometime in September the government seeks the advice of retired Supreme Court justice Ian Binnie and constitutional lawyer and professor Peter Hogg. They are paid $6,605 and $1,045.25 respectively.
  • Sept. 9, 2013: Binnie privately delivers an opinion commissioned by the government stating he believes Marc Nadon, a Federal Court of Appeal judge from Quebec, is eligible to sit on the Supreme Court. Charron and Hogg give opinions stating they agree with Binnie's conclusions.
  • Sept. 30, 2013: Harper announces the nomination of Justice Nadon and says an ad hoc parliamentary committee of MPs would meet in 48 hours to pose questions to the nominee.
  • Oct. 2, 2013: Ad hoc parliamentary committee questions Nadon following an opening address by MacKay, who states the nomination followed consultations with McLachlin, among others. MacKay also reveals the government has three expert opinions supporting the legality of the nomination: Binnie's, Charron's and Hogg's.
  • Oct. 7, 2013:​ Nadon sworn in as member of the Supreme Court of Canada. Toronto constitutional lawyer Rocco Galati applies to the Federal Court of Canada to challenge Nadon's appointment the same day. 
  • Oct. 17, 2013: Quebec government announces it will also contest Nadon's appointment. 
  • Oct. 22, 2013: A Conservative omnibus budget bill includes changes to appointment qualification language for judges in the Supreme Court Act. Government sends reference to Supreme Court regarding constitutionality of Nadon's appointment and its Supreme Court Act change. 
  • March 21, 2014: Supreme Court finds 6-1 that Nadon's appointment is contrary to Quebec-specific provisions in Supreme Court Act; finds changes to "composition of the Supreme Court" require unanimous constitutional amendment. 
  • May 1, 2014: National Post reports Conservative sources claiming McLachlin lobbied against Nadon's appointment.
  • May 1, 2014: Supreme Court's executive counsel issues statement explaining McLachlin was consulted, flagged the eligibility question, but "did not express any views on the merits of the issue."
  • May 1, 2014: The Prime Minister's Office then issues statement saying McLachlin "initiated" contact with the justice minister and PMO, and that MacKay advised Harper that "taking a phone call from the chief justice would be inadvisable and inappropriate. The prime minister agreed and did not take her call," said PMO spokesman Jason MacDonald. 
  • May 2, 2014:​ MacDonald sends email to the CBC's Terry Milewski saying, "The request [from McLachlin's office] for a meeting or a call with the Prime Minister came during the selection process."
  • May 2, 2014:​ McLachlin's office issues statement with timeline showing consultation took place well before Nadon's nomination: "Given the potential impact on the court, I wished to ensure that the government was aware 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."
  • May 6, 2014:​ NDP Leader Tom Mulcair asks Harper in the House of Commons to apologize to McLachlin "for his unprecedented and inexplicable attack on one of our most respected democratic institutions." The prime minister declines, responding: "It's because of our respect for the independence of the judiciary that the prime minister does not discuss an issue that might wind up before the court."

Role or Position

The first page of the Supreme Court of Canada’s web site publishes this statement from Chief Justice Beverley McLachlin:

Canadians are privileged to live in a peaceful country. Much of our collective sense of freedom and safety comes from our community’s commitment to a few key values: democratic governance, respect for fundamental rights and the rule of law, and accommodation of difference. Our commitment to these values must be renewed on every occasion, and the institutions that sustain them must be cherished. Among those institutions, I believe that Canadian courts, including the Supreme Court of Canada, play an important role.

 

Implications and Consequences

Democracy: Respect for the Rule of Law is vital to the democratic project and forms part of Canada’s unwritten constitutional principles. For members of the government to impugn the integrity of the Chief Justice of Canada is to compromise the independence of the judiciary. And, an independent judiciary is an essential foundational element in establishing and protecting the Rule of Law. Principle IV (d) of the Commonwealth Principles on the Accountability of and the Relationship between the Three Branches of Government provides, "Interaction, if any, between the executive and the judiciary should not compromise judicial independence.” (See this reference in ICJ Secretary General Wilder Tayler’s letter of July 23, 2014).

 

Published: 20 October 2014

Photo: michaelpower.ca