Politics in 2014

[Oldgateboatdriver]

Actually, while all federally appointed judges (to Provincial superior or supreme courts, appeal courts, and federal court, fed court of appeals and Supreme court of Canada) are appointed by the governor general in council (so the PM, basically) but all of them are presented to the PMO on a short list after they have been selected to be there by "screening" committees. These committees always include representatives of the appropriate Bar, the public and of the court to which the appointment will be made. So it is perfectly appropriate for the screening committee to consult the Supreme court while vetting candidates.

On the other hand, the Chief Justice has regular contacts with the Minister of Justice, or the PMO or the various Bar, Canadian and provincial, and the other courts of Canada, on various administrative or technical issues relating to the Court but never to discuss cases before the court or with the potential to end up before the court.

A conversation, before the short list is sent too the PMO, that would merely point out, without any comments whatever on the character of justice Nadon, that his provenance could constitute a problem with regards to the technical requirements for qualification in this case (not any personal qualifications), would not be inappropriate.

Dragging something like this in public to make it look improper by  a serving PM who (should) knows better just to cast a pall over the Chief Justice would be very inappropriate. I certainly hope that G.G. Johnson would mention this in his usual dispatches to her Majesty.

 

[Edward Campbell]

Actually, while all federally appointed judges (to Provincial superior or supreme courts, appeal courts, and federal court, fed court of appeals and Supreme court of Canada) are appointed by the governor general in council (so the PM, basically) but all of them are presented to the PMO on a short list after they have been selected to be there by "screening" committees. These committees always include representatives of the appropriate Bar, the public and of the court to which the appointment will be made. So it is perfectly appropriate for the screening committee to consult the Supreme court while vetting candidates.

On the other hand, the Chief Justice has regular contacts with the Minister of Justice, or the PMO or the various Bar, Canadian and provincial, and the other courts of Canada, on various administrative or technical issues relating to the Court but never to discuss cases before the court or with the potential to end up before the court.

A conversation, before the short list is sent too the PMO, that would merely point out, without any comments whatever on the character of justice Nadon, that his provenance could constitute a problem with regards to the technical requirements for qualification in this case (not any personal qualifications), would not be inappropriate.

Dragging something like this in public to make it look improper by  a serving PM who (should) knows better just to cast a pall over the Chief Justice would be very inappropriate. I certainly hope that G.G. Johnson would mention this in his usualdispatchest to her Majesty.

Thanks, OGBD, that's exactly the sort of information I was seeking.

I am very, very leery - as a Conservative Party member/donor - of attacking the courts, any courts but the SCC above all, without absolutely ironclad proof of judicial misconduct. My guess is that this is PMO spite, and bad politics at that.

 

[Brad Sallows]

>“The question concerning the eligibility of a federal court judge for appointment to the Supreme Court under the Supreme Court Act was well-known within judicial and legal circles,” the statement from Mr. Rees said. “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.

By "question", I assume "unresolved point" is meant.  If the existence of the question was "well-known", why would it be necessary to advise the government so?  Having asked that, I understand the value of SC appointments going forward cleanly, and hence the value of avoiding messy disputes.  It may have been prudent, ethical, and fair advice to give; but it also has the potential to appear improper.

"Lobby" is a foolish word to substitute for "advise" and the CPC is in grave danger of losing ground for being ill-mannered.  But I-have-concerns or there-may-be-an-issue talk can be, and therefore can be perceived as, an indirect attempt to influence a decision by removing or deprecating options.

 

[Edward Campbell]

And, according to a report in the Globe and Mail, "Supreme Court Chief Justice Beverley McLachlin has categorically denied Prime Minister Stephen Harper’s extraordinary public assertion that she attempted to contact him about a court case ... Her office said that she discussed the possible appointment of Justice Marc Nadon with [the] Justice Minister to “flag a potential issue” about his eligibility – two full months before Mr. Harper chose Justice Nadon. The court eventually ruled Justice Nadon ineligible."

I sincerely hope the PMO backs off and apologizes, but I somehow doubt they will. I can see no good coming from this ... not for the Conservative Party and not for Canada.

 

[Privateer]

I find this deeply disturbing, as the facts as presented in the articles show nothing other than a smear by the PMO on the Chief Justice of the Supreme Court.  And there is no way that the PMO would be making statements about the Chief Justice of Canada without the direction of the PM himself.  This is more than a disregard for the Canadian constitution; it is an attack on it.

Here is the "principle" stated by the PMO:

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 Prime Minister's Office said in a statement released early Thursday evening.

The communication from the Chief Justice came before Mr. Nadon was nominated.  There was no case before the Supreme Court at that time, or in any other court that could have resulted in an appeal to the Supreme Court.  Without the nomination having taken place, can it even be said that there was a case which "may be" before the Supreme Court?  I cannot see how that could be said to be the situation.

The Prime Minister is seeking political gain by disparaging the Chief Justice of Canada.  This is a situation that should concern all Canadians.  It is not a political issue.  It is a constitutional issue.

 

[Remius]

Looks like the PMO is going to stay on message and frame the context.

http://www.cbc.ca/news/politics/stephen-harper-weighs-in-on-spat-with-chief-justice-beverly-mclachlin-1.2629853

Interesting messaging and damage control here.  :facepalm:

The Chief Justice has apparently already responded. 

 

[Privateer]

News Release from the Chief Justice of Canada, through the Executive Legal Officer to the Supreme Court of Canada:

FOR IMMEDIATE RELEASE

In response to recent media reports, the office of the Chief Justice of Canada, the Right Honourable Beverley McLachlin, P.C. is releasing the following statement.

At no time was there any communication between Chief Justice McLachlin and the government regarding any case before the courts. The facts are as follows:

On April 22, 2013, as a courtesy, the Chief Justice met with the Prime Minister to give him Justice Fish’s retirement letter. As is customary, they briefly discussed the needs of the Supreme Court of Canada.

On July 29, 2013, as part of the usual process the Chief Justice met with the Parliamentary committee regarding the appointment of Justice Fish’s successor. She provided the committee with her views on the needs of the Supreme Court.

On July 31, 2013, the Chief Justice’s office called the Minister of Justice’s office and the Prime Minister’s Chief of Staff, Mr. Novak, to flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court. Later that day, the Chief Justice spoke with the Minister of Justice, Mr. MacKay, to flag the potential issue. The Chief Justice’s office also made preliminary inquiries to set up a call or meeting with the Prime Minister, but ultimately the Chief Justice decided not to pursue a call or meeting.

The Chief Justice had no other contact with the government on this issue.

The Chief Justice provided the following statement: “Given the potential impact on the Court, I wished to ensure that the government was aware of the eligibility issue. At no time did I express any opinion as to the merits 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.”


For further information contact:

Owen M. Rees
Executive Legal Officer
Phone: (613) 996-9296

Note that the nomination of Mr. Nadon by the PM did not occur until September 30, 2013.  The appointment was made October 3, 2013, following an appearance before a Parliamentary committee on October 2, 2013.

On the facts as presented, the PMO is engaging in smear.  It is attempting to bring the court into disrepute for political gain.

 

[Nemo888]

Harper is killing Conservative credibility. If this keeps up he'll run the party into the ground and then bail like Mulroney. He has outlived his usefulness and become a liability.

 

[Fishbone Jones]

I think people need to calm down a little bit, put away the torches and pitchforks, while this whole thing shakes out a bit more.

 

[Brad Sallows]

From one side:

1. >The Prime Minister’s Office publicly asserted that the Chief Justice attempted to contact Mr. Harper about a court case, and said that he refused to take her phone call when Justice Minister Peter MacKay told him it would be “inappropriate.”

2. >“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.”

From the other side:

3. >At no time was there any communication between Chief Justice McLachlin and the government regarding any case before the courts. The facts are as follows:

4. >On July 31, 2013, the Chief Justice’s office called the Minister of Justice’s office and the Prime Minister’s Chief of Staff, Mr. Novak, to flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court. Later that day, the Chief Justice spoke with the Minister of Justice, Mr. MacKay, to flag the potential issue. The Chief Justice’s office also made preliminary inquiries to set up a call or meeting with the Prime Minister, but ultimately the Chief Justice decided not to pursue a call or meeting.

It looks like both sides are tap-dancing around fine points and different (mis-)understandings.

The PMO was wrong to use the phrase "about a court case".  As a layman, I might casually describe anything to do with a pending court hearing and decision a "court case" with no harm done, but as there was truly not yet a "case before the courts", the statement from the CJ's office is the correct and legally sound assertion.

Both sides agree the CJ reached out to the Minister.  Whether the CJ or the CJ's staff sought the talk with the PM, both sides agree the CJ reached out to the PM.  Both sides claim to have stepped away from it.

The PMO's office apparently has some dim people in it if they decided to pick a pointless fight (if you don't have a bulletproof casus belli and legal case to remove the CJ, who do you morons think you are and WTF do you think you are doing?) with an institution and people that are probably as much above reproach and suspicion and as well-regarded as anyone in Canada can claim to be.  Nevertheless, I'm too long in the tooth to listen to anyone who refuses to see the "advice" as a gentle extra hand on the tiller.  I can not imagine why the point could not have been left with the selection committee to raise or not raise with the PM.

Regardless, the government (PMO's office) should have done the dignified thing after losing the nomination and borne its disappointment and loss of face gracefully.  Grow up, you sniveling self-regarding arrogant power-tripping children.

 

[Fishbone Jones]

There's the monster! Get him! :

 

[Edward Campbell]

...

The PMO's office apparently has some dim people in it if they decided to pick a pointless fight (if you don't have a bulletproof casus belli and legal case to remove the CJ, who do you morons think you are and WTF do you think you are doing?) with an institution and people that are probably as much above reproach and suspicion and as well-regarded as anyone in Canada can claim to be.  Nevertheless, I'm too long in the tooth to listen to anyone who refuses to see the "advice" as a gentle extra hand on the tiller.  I can not imagine why the point could not have been left with the selection committee to raise or not raise with the PM.

Regardless, the government (PMO's office) should have done the dignified thing after losing the nomination and borne its disappointment and loss of face gracefully.  Grow up, you sniveling self-regarding arrogant power-tripping children.

Quite right, Brad.

But despite this, which is something I regard as dumb, bad policy and bad politics, I still cannot see an acceptable alternative to the CPC in the near future.

 

[Infanteer]

From one side:

1. >The Prime Minister’s Office publicly asserted that the Chief Justice attempted to contact Mr. Harper about a court case, and said that he refused to take her phone call when Justice Minister Peter MacKay told him it would be “inappropriate.”

2. >“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.”

From the other side:

3. >At no time was there any communication between Chief Justice McLachlin and the government regarding any case before the courts. The facts are as follows:

4. >On July 31, 2013, the Chief Justice’s office called the Minister of Justice’s office and the Prime Minister’s Chief of Staff, Mr. Novak, to flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court. Later that day, the Chief Justice spoke with the Minister of Justice, Mr. MacKay, to flag the potential issue. The Chief Justice’s office also made preliminary inquiries to set up a call or meeting with the Prime Minister, but ultimately the Chief Justice decided not to pursue a call or meeting.

It looks like both sides are tap-dancing around fine points and different (mis-)understandings.

The PMO was wrong to use the phrase "about a court case".  As a layman, I might casually describe anything to do with a pending court hearing and decision a "court case" with no harm done, but as there was truly not yet a "case before the courts", the statement from the CJ's office is the correct and legally sound assertion.

Both sides agree the CJ reached out to the Minister.  Whether the CJ or the CJ's staff sought the talk with the PM, both sides agree the CJ reached out to the PM.  Both sides claim to have stepped away from it.

The PMO's office apparently has some dim people in it if they decided to pick a pointless fight (if you don't have a bulletproof casus belli and legal case to remove the CJ, who do you morons think you are and WTF do you think you are doing?) with an institution and people that are probably as much above reproach and suspicion and as well-regarded as anyone in Canada can claim to be.  Nevertheless, I'm too long in the tooth to listen to anyone who refuses to see the "advice" as a gentle extra hand on the tiller.  I can not imagine why the point could not have been left with the selection committee to raise or not raise with the PM.

Regardless, the government (PMO's office) should have done the dignified thing after losing the nomination and borne its disappointment and loss of face gracefully.  Grow up, you sniveling self-regarding arrogant power-tripping children.

Pretty sound analysis Brad.

 

[Kirkhill]

While I agree with the assessment of tone I am not sure that I find the PMO's actions to be bad politics.

From 2006 - following Harper's election and the vapouring of the Laurentians - Harper's "attack" on the institutions.

Courts Stacked With Liberal Judges says Conservative Leader Harper
BY LIFESITENEWS.COM
Thu Jan 19, 2006 12:15 EST


By Gudrun Schultz

TORONTO, Ontario, January 19, 2006 (LifeSiteNews.com) – Conservative Leader Stephen Harper said Canada’s court system is influenced by Liberal-appointed justices who pursue a social activist agenda, in a statement to reporters yesterday.

Asked whether there are activist judges with a social agenda, he said: “Some are and some aren’t.”

“I am merely pointing out a fact that courts, for the most part, have been appointed by another political party. But courts are supposed to be independent regardless of who appoints them and they are an independent check and balance,” Harper said.

Harper said he would want to see particular qualities when choosing judicial appointees. “What we will be looking for is what I call the judicial temperament,” he told reporters. “And that is the ability to competently and shrewdly and wisely apply the laws that are passed by the Parliament of Canada.”

Today’s Toronto Star reports Irwin Cotler, Canada’s Justice Minister and Attorney General, responded that Harper’s statements were “disrespectful of the rule of law, of the independence of the judiciary and the administration of justice.”

The Liberal–dominated Senate is also a concern, Harper said, if his party forms a government, since they have obstructed legislation in the past when Conservatives were in power.

“The Liberal Senate in the past was extremely uncooperative when their party wasn’t in power, so it’s a worry,” he said.
“I hope that better judgment will prevail and the unelected Senate will play the role that historically it has played, which has been a useful technical role but will not try and interfere with the democratic will of the elected House.”

In the past Harper has accused the Liberal government of deliberately using justice appointments to bypass the Canadian public in pushing through controversial legislation. In 2003, after courts in British Columbia and Ontario legalized same-sex unions, Mr. Harper, then the leader of the Canadian Alliance, accused former Prime Minister Jean Chrétien of intentionally stacking the courts with sympathetic judges.

“They didn’t want to come to Parliament, they didn’t want to go to the Canadian people and be honest that this is what they wanted,” he said at that time of the Liberals. “They had the courts do it for them; they put the judges in they wanted, then they failed to appeal, failed to fight the case in court.”(Globe and Mail)

In December 2005 the Supreme Court legalized swingers clubs and group sex venues in a controversial ruling that Harper has said his government will revisit if it comes to power.

Now, he has less credibility in his attacks because he has been seen to actively engage and modify those same institutions - with less success than he hoped - but on the other hand he can always claim, paraphrasing Tennyson* - that it is better to have tried and failed than never to have tried at all.
And the more the press and the "institutions" squawk the more the believers will draw their own conclusions.  I believe the current expression is "confirmatory bias".

*Actual quote is:" better to have loved and lost than never to have loved at all".

 

[DBA]

I think the SC botched the ruling. It promotes what is dangerously close to being an intolerant and racist view of what it means to be a member of the Quebec judiciary community. Spend too many years on a Federal Court bench outside the province and your no longer 'pure' enough to be considered a member. 

I agree with "at least three Supreme Court judges must come from Quebec, to ensure that the Court has sufficient expertise in the province’s civil law code. " (From: SUPREME COURT OF CANADA Judges) but have a hard time seeing how he isn't from Quebec and doesn't have that expertise.

I agree with Per Moldaver J. (dissenting): in the ruling
(http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13544/index.do?r=AAAAAQAKTWFyYyBOYWRvbgAAAAAB)

 

[GAP]

That is quite a damning dissenting statement by Moldaver.

It sure sounds like the SC cherry picked their reasons....

 

[Crispy Bacon]

The PMO's office apparently has some dim people in it if they decided to pick a pointless fight (if you don't have a bulletproof casus belli and legal case to remove the CJ, who do you morons think you are and WTF do you think you are doing?) with an institution and people that are probably as much above reproach and suspicion and as well-regarded as anyone in Canada can claim to be.  Nevertheless, I'm too long in the tooth to listen to anyone who refuses to see the "advice" as a gentle extra hand on the tiller.  I can not imagine why the point could not have been left with the selection committee to raise or not raise with the PM.

1. It plays great into the conservative base, who has long known that the courts are often packed with social justice zealots.

2. It plays great into any Canadian who's concerned about who runs Canada. Canadians elected the Conservative government to lead Canada. They have tried to lead Canada and implement their agenda and been rejected 5 times in the last 6 weeks.  Who is the Supreme Court to overrule the will of the Canadian public?

 

[Fishbone Jones]

1. It plays great into the conservative base, who has long known that the courts are often packed with social justice zealots.

2. It plays great into any Canadian who's concerned about who runs Canada. Canadians elected the Conservative government to lead Canada. They have tried to lead Canada and implement their agenda and been rejected 5 times in the last 6 weeks.  Who is the Supreme Court to overrule the will of the Canadian public?

Exactly. The Government makes laws, the SC enforces them. However, that distinction is getting much grayer and harder to distinguish when it comes to the SC.

 

[The Bread Guy]

Six out of 8 of the current Supremes were appointed by Conservative governments, so one gets what one appoints.

Maybe lawyers, like reporters, come from a history of rooting for the underdog, making them more "activist" than some would like.

 

[Edward Campbell]

More, reproduced under the Fair Dealing provisions of the Copyright Act from the Globe and Mail, on the PM vs CJ thing:

http://www.theglobeandmail.com/news/politics/globe-politics-insider/harper-wades-into-uncharted-territory-in-spat-with-chief-justice/article18413672/#dashboard/follows/

Harper wades into uncharted territory in spat with Chief Justice

SUBSCRIBERS ONLY

Campbell Clark
The Globe and Mail

Published Saturday, May 03 2014

This Prime Minister is going where no other has gone before. He’s bringing a long-bubbling political culture war with the Supreme Court into the open, with a personal twist.

Now, Prime Minister Stephen Harper and Chief Justice Beverley McLachlin are trading shots in public, with Mr. Harper suggesting the judge of the highest court in the land broke an ethical rule.

This is something that just didn’t happen in Canada, where politicians treated the Supremes with deference and discretion. Even those who didn’t feel awe for the court, like Mr. Harper, who had suggested the court was populated by liberal activists, didn’t take on the justices directly. The court’s aura as an impartial, respected institution led politicians to feel they just couldn’t win. Until now.

This is a Prime Minister who believes the courts have exceeded their purview to set social policy and should be pushed back so governments, like his, govern. He’s a politician who likes to play the outsider, fighting off the Ottawa elites, including a Supreme Court that’s “blocking” Senate reform. He’s always wanted to take the justices down a peg.

But a string of rulings against the government, notably the court’s decision that Mr. Harper’s nominee for the Supreme Court, Marc Nadon, was constitutionally ineligible, appear to have made him willing.

The he-said, she-said between the PMO and the Supreme Court has been stunning. After Conservative whispers that the Chief Justice had lobbied against Justice Nadon’s appointment, the PMO said Mr. Harper had refused to take her “inappropriate” call about legal issues around the appointment. It implies she might not have been impartial when she heard the case later. The Chief Justice said she was consulted as per routine, flagged a legal issue, and didn’t, in the end, call the PM.

It’s remarkable because the Prime Minister and his office have not shied away from the argument. The timing is remarkable, too: the events in question took place last July, but Mr. Harper’s office chose to discuss them this week.

“Why now?” said Emmett Macfarlane, a University of Waterloo political scientist. Even if one thinks the Chief Justice’s flagging a legal issue was unwise, the PMO seems to be “impugning her integrity,” he said. “It’s unprecedented.”

There is, in Mr. Harper’s political ethos, an inclination to be less deferential to the Supreme Court. He, and several of the advisers and ministers around him, saw the courts as activists applying social theories to strike down Parliament’s laws.

That view is shared by many Conservatives, and Mr. Harper has shown he wants to use the Supreme Court as a foil to burnish outsider credentials. At last October’s Conservative convention, he railed against the court for blocking his Senate reform plans – though the court didn’t rule against them until last month. Questioning the Chief Justice’s credibility might make it an easier target.

A string of rulings, including one striking down prostitution laws, brought defeats to Mr. Harper’s government. But the March decision to block Justice Nadon’s appointment was more like a personal rebuke.

The PM had reached into the ranks of semi-retired judges to appoint the unrenowned Justice Nadon, and some legal analysts believed he was to be the antidote to judicial activists.

There was a legal grey area, because it was not clear whether a judge of the Federal Court of Appeal was eligible to sit on the top bench as a Quebec judge, but Mr. Harper was armed with eminent legal opinions. The Supreme Court’s decision to rule against Justice Nadon anyway appears to have stung Mr. Harper as personal. On Friday, he essentially said, in public, the court was wrong.

The dispute has surprised watchers like Prof. Macfarlane. “The PMO and Supreme Court should not be engaged in a PR war.” He said he doubts the Conservatives have to anything to gain politically. The party’s base is more critical of judicial power, but most Canadians aren’t, he said.

This has become the Canadian political equivalent of parents fighting in front of kids: It threatens to undermine the credibility of both. Mr. Harper is a veteran political fighter, however, and he might judge that a battle is more likely to scuff the untouched aura of the Supremes. No prime minister has tried it before.

This, fighting, publicly, with the Chief Justice, is a dangerous thing, in my opinion. Like Prof Macfarlane, I cannot see the upside of it all.