The Chief Justice and the Prime Minister

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Last week, Prime Minister Harper suggested that a phone call by Chief Justice McLachlin to Justice Minister Peter MacKay’s office about a potential appointment to fill a vacancy for a Quebec judge on the Court was improper. The Chief Justice took the unprecedented step of responding to this allegation by issuing a press release. It stated:

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.”

In a few words, the Chief Justice is right.

I must make a simple observation. Whenever the Prime Minister and his government lose a battle or whenever an issue is raised with one of their programs or policies, the person or agency winning the battle or raising the issue becomes an “enemy” of the government. It is then considered to be fair game for the government to attack that person or agency at any level and by any means.

The current enemy of the Prime Minister and his government appears to be the Supreme Court of Canada. It is not enough to state that he disagrees with the decisions of the Court. Instead, a baseless attack on the integrity of the Chief Justice is in order. And truth need not enter the equation. It seems that the Prime Minister and Justice Minister think that it is appropriate to try to twist what was a normal exercise of her authority, indeed a proper discharge of her constitutional obligations (namely, providing prior input to the Prime Minister and the Justice Minister about a potential appointment to fill a vacancy on the bench), into some sort of sordid show of impropriety.

In acting in this way in relation to the Court and the Chief Justice, the Prime Minister is simply following a practice that he has cultivated over the last decade. He does not simply disagree with the Leader of the Opposition, Mr. Mulcair, or the Leader of the Third Party, Mr. Trudeau, he must seek to impeach their personal integrity. Ditto for the Chief Electoral Officer Marc Mayrand. Same for Parliamentary Budget Officer Kevin Page. The list goes on. In so doing, the Prime Minister and his government is bringing the entirety of Canada’s central institutions – the House of Commons, the Senate, the Supreme Court of Canada, the role of responsible and democratic government – all into disrepute. He is undermining the very foundations of the Canadian federation.

A constitution must not be simply written and read. It must be lived and embraced by all of its constituents. The Prime Minister would do well to learn to appreciate the underlying constitutional principles that support the country that is Canada.

I remain

Constitutionally yours

Arthur Grant

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