OTTAWA — Prime Minister Stephen Harper says he ignored a legal caution from Canada’s chief justice on the eligibility of a potential Supreme Court nominee last summer because to listen to such advice would have been improper.
In an unprecedented prime ministerial rebuke of the top court, Harper unloaded Friday on Chief Justice Beverley McLachlin, one day after government leaks and an extraordinary exchange of public statements revealed a deep rift between the two.
Speaking to reporters in London, Ont., Harper said McLachlin acted improperly last July in advising his office that Marc Nadon, a Federal Court of Appeal judge, might not fit the legal criteria set for Quebec justices under the Supreme Court Act.
At the time, Nadon was one of three judges on a short list of potential appointees being vetted by a panel of MPs. That panel had sought McLachlin’s advice.
“I can tell you this,” said a clearly irked Harper, who appointed Nadon last September despite the legal caution.
“I think if people thought that the prime minister, other ministers of the government, were consulting judges before them or — even worse — consulting judges on cases that might come before them, before the judges themselves had the opportunity to hear the appropriate evidence, I think the entire opposition, entire media and entire legal community would be outraged,” he said.
“So I do not think that’s the appropriate way to go.”
McLachlin’s office responded with its own public statement, the second in as many days.
McLachlin spoke to Harper “as a courtesy” last April to give him the retirement letter of justice Morris Fish, said the statement.
She met with the parliamentary vetting committee on July 29 “as part of the usual process,” then contacted Justice Minister Peter MacKay and the Prime Minister’s Office on July 31 “to flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court.”
McLachlin’s office said it contacted the PMO to make “preliminary inquiries” about setting up a call or meeting with Harper on the matter, “but ultimately the chief justice decided not to call pursue a call or meeting.”
“Given the potential impact on the court, I wished to ensure that the government was aware of the eligibility issue,” McLachlin is quoted in the release.
“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.”
Harper’s office, meanwhile, issued a statement late Thursday saying the prime minister was advised by his justice minister that accepting a call from McLachlin would be “inadvisable and inappropriate.”
“The prime minister agreed and did not take her call,” said the statement from communications director Jason MacDonald.
Harper ended up nominating Nadon, a semi-retired 64-year-old with a specialty in maritime law, last Sept. 30 and he was duly sworn in to the top court by McLachlin on Oct. 3.
However constitutional lawyer Rocco Galati challenged the appointment, and in March this year the Supreme Court ruled 6-1 that Nadon did not meet the legislated eligibility requirements.
Court watchers are agog.
Emmett McFarlane, an assistant professor at the University of Waterloo who has written a critical history of the Supreme Court entitled “Governing From the Bench,” said the public dispute is unprecedented in Canadian history.
McFarlane said court experts may debate whether McLachlin was imprudent in contacting the Prime Minister’s Office about her concerns.
“It was perhaps unwise, that’s all I’ll say,” he said in an interview.
“But for the prime minister to engage in this kind of spitting match with the court and with the chief justice is absurd.”
Harper said Friday he consulted constitutional and legal experts both within and outside the government, and they agreed there would be no problem in nominating Nadon.
And he said the Supreme Court decision to reject Nadon means that Federal Court judges from Quebec are essentially ineligible to sit on the high court, a situation he considers unfair.
“The reality is the Supreme Court has decided that a Quebec judge at the Federal Court is a second class judge,” said Harper.
He said Quebec jurists may no longer aspire to a Federal Court appointment because it will rule them out of a shot at the Supreme Court.
“Obviously this will create problems for recruiting judges to a national, a very important institution and it’s difficult for me to understand how we can have a truly national institution … without Quebec representation,” said Harper.
The war of words was prompted by a media report Thursday that said Conservative government members have become incensed with the top court after a series of stinging constitutional rebukes, including the Nadon rejection.