But with the prime minister’s astonishing personal attack last week on the chief justice of the Supreme Court, Beverley McLachlin, the meltdown has reached Lindsay Lohanesque proportions. Nothing in the long catalogue of Stephen Harper’s bad-tempered outbursts has seemed quite so extravagantly reckless, if only because it was so calculated.
It is one thing to savage a political opponent or beat up on a distinguished civil servant. But to accuse the nation’s highest judge of professional misconduct — for that is what was insinuated, if not quite alleged, an ethical breach serious enough to warrant her resignation — is so ill-considered, so destructive of both the court’s position and his own, that it leaves one wondering whether he is temperamentally suited to the job.
Let us be clear. There is nothing wrong with a prime minister criticizing a decision of the Supreme Court, or a general tendency in its rulings, so long as the disagreement is in good faith and expressed as such. Indeed, on the last two of five recent decisions to go against the government, the references on Senate reform and Marc Nadon’s appointment to the court, I happen to think the court got it wrong. Alas, I am not a member of the Supreme Court, and neither is the prime minister: We may disagree with the court’s rulings, but it is they, and not we, who are empowered to decide these matters. And rightly so.
Those anonymous Conservative MPs who have seized on the controversy to grouse, yet again, that judges are “making law” in defiance of the wishes of Parliament are likewise within their rights, though they seem to misunderstand basic principles of constitutional government — as in the suggestion from some bright light to the National Post’s John Ivison that the appropriate response to the Nadon decision was to invoke the notwithstanding clause. For a system of written law to work, there must be an independent arbiter to interpret it; if laws meant whatever the prime minister of the day claimed they did, we would effectively be living under rule by decree.
All the same, a little loose talk of “judicial activism” is good clean fun, as far as it goes. What’s absolutely out of bounds is to start casting aspersions on the personal integrity of individual judges — let alone the chief justice. That wasn’t the work of some bumptious Tory backbencher. It came straight out of the Prime Minister’s Office.
The whole situation might have been avoided, of course, had the chief justice never called the justice minister, but confined her attempts to “flag” the possible legal issues raised by the Nadon appointment to the panel of MPs charged with vetting candidates for the court. That is a long, long way, however, from any suggestion she did anything improper. Yet that is the impression the prime minister has laboured to plant in the public mind.
The first line of the statement his office released Thursday night reads: “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.” Lower down we learn that the justice minister counselled the prime minister against “taking a phone call from the Chief Justice” as that would be “inappropriate.” (The prime minister’s spokesman later repeated, in an email to Maclean’s magazine’s Aaron Wherry, that it was “inappropriate” for the chief justice to have “asked to meet/discuss with (the prime minister) an issue that could ultimately end up before their court.”)
The statement neglected to mention the date of the call, leaving observers to wonder whether she might have called after Nadon’s appointment had been challenged in Federal Court, or even after it had been referred to the Supreme Court. That would indeed be highly improper. In fact, as a statement from the chief justice’s office later revealed, the call to the justice minister (she never called the prime minister) was made July 31 of last year. That’s two months before Nadon was appointed, and nearly three months before the government referred the issue to the court.
A parade of legal authorities have said she did nothing wrong: the Canadian Bar Association, which has called upon the prime minister to clarify his statement accordingly; scholars such as the University of Ottawa’s Adam Dodek (“There is nothing unusual about contacts between the chief justice and the minister of justice and the prime minister”); the former Supreme Court judge Jack Major (“innocuous”).
But never mind. Suppose the prime minister were as troubled by her actions as he now feels compelled to advertise. Why did he wait nine months to raise it? Why did he not, at a minimum, insist she recuse herself from the reference? Why does he not, even now, bring proceedings against her, or demand that she resign? We are left with two possibilities. Either the prime minister knew the chief justice had committed a serious ethical breach, and did nothing about it. Or he knew, as he knows now, that she did no such thing, but is content to smear her as if she had.
As I say, we’ve never seen anything quite like this, not even from this prime minister. Which raises the question: At what point do Conservatives of goodwill become concerned about the long-term damage being done to their party’s reputation under its present leadership? Differences over policy come and go, but this kind of behaviour, left unchallenged, will lead many people to conclude that the institutions of government cannot be safely entrusted to them.
Original Article
Source: canada.com/
Author: Andrew Coyne
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