PM refused to take ‘inadvisable, inappropriate’ call from chief justice, PMO says

By Tonda MacCharles
The Toronto Star
May 01, 2014

OTTAWA—An unprecedented rift between the Prime Minister’s Office and the Supreme Court of Canada, the executive and judicial branches of government, burst into the open Thursday evening.

It came via a public statement from the PMO, and is a sign of bitterly strained relations between Harper’s government and a high court that has handed the Conservatives a string of defeats.

A spokesman for Prime Minister Stephen Harper suggested Chief Justice Beverley McLachlin inappropriately tried to call Harper’s office about the Quebec vacancy on the high court, an overture that Jason MacDonald said the Prime Minister rebuffed on the advice of his justice minister.

Without specifying when the McLachlin call was made, Harper’s office left open the suggestion it was after the controversial and ultimately voided appointment in October of Marc Nadon, which prompted a legal challenge and stinging loss for Harper’s government.

“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,” said Harper’s communications director in a statement issued to reporters.

“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.”

Harper’s spokesman said the statement was merely in response to public comments by the court itself earlier that day. In fact, those comments, by the high court’s executive legal officer, were issued to publicly rebut anonymously sourced criticisms of McLachlin published by the National Post.

The newspaper had advised the court it was publishing claims by a senior PMO official and other “high-level” sources in the Conservative government that McLachlin had “lobbied against” the Nadon appointment, and was “telling people that this government has done more than any previous government to damage the relationship between the Supreme Court of Canada and Parliament.”

In response, the court “set the record straight” on the record: McLachlin flagged the legal problem that could result from a Federal Court appointment for a Quebec seat, but that was all.

The Supreme Court’s executive legal officer, Owen Rees, said McLachlin “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.”

“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. (Ray) Novak. The Chief Justice did not express any views on the merits of the issue.”

Those consultations took place in July, according to the timeline in Rees’ statement.

Late Thursday night, MacDonald confirmed to the Star that McLachlin “sought a meeting/call with the PM during the selection process” in July.

University of Ottawa vice-dean of law Adam Dodek said there is “nothing unusual or untoward” about the chief justice speaking to the government during consultations for a new judge. All justice ministers have done so for the past decade — as long as governments have been semi-transparent about the historically opaque, and still deeply flawed, judicial appointment process.

But Dodek said it is “highly irregular” to see a dispute descend into “allegations of innuendo,” adding it risks damaging what has so far been “a positive working relationship between the Supreme Court and the executive branch” and threatens to deepen public cynicism about both elected officials and judges.

Rees declined any comment Thursday.