Here’s the top bit of a very interesting column by my friend John Ivison of the National Post:
Rumours about Beverley McLachlin, the Chief Justice, are being shared with journalists, alleging she lobbied against the appointment of Marc Nadon to the court (an appointment later overturned as unconstitutional). It is also being suggested she has told people the Harper government has caused more damage to the court as an institution than any government in Canadian history.
The chatter suggests there is a clear strain between the offices of the Prime Minister and the Chief Justice.
Ms. McLachlin hit back in a statement released by her executive legal officer, Owen Rees. He said she did not lobby against the appointment but was consulted by a parliamentary committee on the government’s short list and 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 in legal circles. Because of the institutional impact on the Court, the Chief Justice advised the Minister of Justice, Mr. [Peter] MacKay, of the potential issue before the government named its candidate for appointment to the Court. Her office also advised the Prime Minister’s chief of staff, Mr. [Ray] Novak. The Chief Justice does not express any views of the merits of the issue,” he said.
Neither did she make disparaging remarks about the Harper government. “She has stated publicly on several occasions that mutual respect between the branches of government — and their respective roles — is essential in a constitutional democracy,” said Mr. Rees.
And here is a (rather remarkable) response from the PMO, distributed to members of the Parliamentary Press Gallery by Prime Minister Harper’s communications director Jason MacDonald:
“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.”
In view of this government’s past honesty, I tend to believe Beverly McLachlin.
The Chief Justice has compromised her position as a totally independent judicial officer by making a call to a sitting parliamentarian who of all elected officials is the Minister of Justice and as such responsible for the court. She had no right to call anyone in government on this issue. Her role was to wait until a name was brought forward and if necessary, as was in this case render as decision on his suitability. She jumped the gun. As such she should be removed as the Chief Justice and relegated to a Justice of that court. The Prime Minister sought independent advice, provided the names of those persons who are eminently qualified to make such a determination and then placed that name before the Supreme Court. The PM has the last say on ALL judicial appointments provided they meet the requirements entrenched in law and the Chief Justice’s role is to accept that person.