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Monday, June 30, 2014

Yet more on the Nadon appointment, the story that will not quite die

I had not thought that I should be posting again on the Nadon appointment. But the story seems not to die. It only grows. And grows more complicated.

When I first wrote this post it was about an allegedly inappropriate attempted or contemplated call from Chief Justice Beverley McLachlin to Prime Minister Stephen Harper and its rights or wrongs and the rights or wrongs of the revelation of the call and its implied criticism of McLachlin.

Since then the confidential list of six prospects considered by the Supreme Court of Canada Appointments Selection Panel of MPs has been revealed, the Government of Quebec has been consulted, Clement Gascon has been appointed to general satisfaction, without the involvement of the Panel and without a hearing before a Commons committee, but with continued grumbling about the 'process,' and one of the prospects has been appointed to the Quebec Court of Appeal, prompting speculation that he is being readied to replace Louis Lebel when he retires from the Supreme Court at the end of November, and there is a further court challenge of that appointment by Rocco Galati, who started the challenge to Nadon’s appointment.

As no more has been reported or said in the last week, I take this opportunity to update and extend my posting. Fearful that as I click on ‘update’ the story will be revived by some further stupidity.

It now appears that the Chief Justice's call was contemplated or attempted early in the summer of last year and that she wanted to flag the issue of the eligibility of Federal Court judges. Critics of Harper’s initiating the spat with McLachlin acknowledge that she may have made a ‘minor error’ in contemplating contacting the Prime Minister. Her own office said that the issue was “well-known within judicial and legal circles.” She had had an opportunity to raise it with the Panel. And presumably raised it with Justice Minister Peter MacKay. Indeed the government was well aware of it before Nadon was chosen and an opinion that he was eligible was obtained from the most eminent and respectable authorities.

The spat became an occasion to expatiate on Harper’s unpleasant character and that of his government. And its political ineptitude. For, despite the success of ‘Harper’s Team,’ they have been playing the game very poorly lately, whatever their merits as a government.
 But allowing that starting the spat with McLachlin was politically foolish and morally shabby, some of the commentary has been foolish and unsound.

Naturally, a law professor leapt to McLachlin's defense lavishing praise on her and accusing the government of endangering
'one of the most important aspects of Canadian constitutional democracy, the relationship of respect and credibility between the judicial and executive arms of our constitutional democracy.'
Professor Errol Mendes seemed to know no more on May 2 about what actually happened than the rest of us, but he was sure McLachlin was
‘one of the most distinguished jurists in Canadian history with a global reputation for effectively presiding over some of the most challenging legal and constitutional issues facing the country’
and the government dangerous. McLachlin is a judge distinguished only by her long tenure and eminent position, earning her diplomatic plaudits from other similarly placed judges, and the government is not dangerous, but inept.

The rule he seemed to suggest is that the courts must never be criticised, except in law journals, written and read only by law professors, while the courts are free not only to find against the government but to rebuke it while doing so.

A posse of bar association presidents pronounced that
‘The judicial branch is one of the three independent components of Canada's constitutional democracy, the other two being the legislative and the executive branches. Our system can operate effectively only if each component is respectful and courteous in its relations with the others. The courtesy and respect that these relationships require are particularly important for the judicial branch because it must ultimately judge the constitutionality of the conduct of the other two branches and, yet, at the same time, must on a day-to-day administrative level have dialogue with them.’
Skipping over the rather too pat theory of the three branches of government, usually attributed to Montesquieu, they seem not to have noticed the practically daily rude dissing of the executive by the legislature in the House of Commons, and they insinuate that the ‘judicial branch’ must be above criticism and, well, supreme.

All 23 deans of Canada’s law schools jumped on the bandwagon to condemn Harper saying

'There are very few issues on which all members of the legal community spontaneously agree,…The unanimous condemnation of the government's statements regarding Chief Justice McLachlin reflects our shared sentiment that this is an unfortunate and unprecedented attack on one of the most important institutions of Canada's constitutional democracy.'

Well, I still have my LL.B. from York University, but I don’t agree, either spontaneously or on reflection.

In the good old days when the courts were not ‘supreme,’ one could comment on their decisions critically, suggesting better arguments they should have accepted, without it becoming heated or political. Though the left often became heated and political about the courts without anyone holding it against them.

But since 1982, with the courts regularly deciding major political issues, the government’s wins and losses in the courts have become a political issue. If the Harper government has been too free in impugning the integrity of the courts when they have thwarted them, its opponents have shown no restraint in invoking the judgments of the courts as comminations. If Tories are 'incensed' with the Court, it is because politicians and the media persist in seeing the Court’s decisions as ‘rebukes’ and ‘defeats’ for the government. If they would cool down, so would the Tories.

Thomas Mulcair practically waved the Nadon judgment at Harper and 'accused the federal government of failing to respect Quebec's constitutional rights by appointing Nadon.'

Peter MacKay

'told the House of Commons on Monday [May 5] that, “prior to the ruling” of the top court, there was nothing in the act that “prohibited the appointment of a Supreme Court judge who had come through the Federal Court.”

“That is not in the Supreme Court Act,” MacKay asserted.

He reiterated that two former Supreme Court justices and legal experts consulted by the  government advised that Nadon was eligible for appointment to the top court.'

All of which is true, though now immaterial. As Mulcair said, he was ‘trying to replead his case.’ But Mulcair was maintaining there had been no case to plead, that the government had been trying to flout the law, which was patently untrue.

Mulcair could quite properly have urged the government to ‘suck it up’ and come up with another appointment, but with Justin Trudeau and much of the media, he cited it as a rebuke of the government. A characterisation encouraged by the Court’s way of expressing itself. The judges are well aware of the impact their judgments will have. So they should know that they should be careful in expressing themselves. Not hyping their assumed role of guardians of the constitution and all that is right and good and simply answering in measured language the questions they are asked.

It is a theme of the critics of Harper that while he has ‘smeared’ the Chief Justice, judges are from their position unable to reply. McLachlin has not hesitated to issue a series of replies to the ‘smear,’ but more importantly, the Court is presented as ‘rebuking’ the government and the great and the good insist the government should not reply.

All this is put in the context of what is described as ‘The government [losing] five major cases at the Supreme Court in the past six weeks, with only one voice of support from the court's eight sitting members, just once.’ This rather overstates things. Three of the five cases, the ones involving the Truth in Sentencing Act, were really just one case. And the Court did not strike down the government’s legislation. It simply gave it a plausible interpretation that fell short of the government’s somewhat hyperbolic presentation of the act.

The others were the Nadon appointment and the Senate Reference. It is hard to believe that Harper is much upset by the Court’s dismissal of his Senate schemes or that it constitutes a major defeat of his cherished hopes. He only put forward his schemes in deference to Reform Party pieties and in a play to the popular loathing of the Senate. He tried but, having asked the Supreme Court for its opinion, he can now say there is nothing he can do. Justin’s Trudeau’s stupidities are not an option.

The brouhaha produced the customary reaction that something must be done about the ‘secretive’ process of Supreme Court of Canada appointments. Thanks to The Globe it is no longer secretive. Stephane Dion complained when the story of McLachlin’s contemplated call broke that it must have been Tory MPs who leaked the story of her call, breaching the confidentiality of the process. Now we are asked to accept something like an election contest with candidates vying for the endorsement of The Globe, The Star and the CBC.

In the particular conjuncture Harper decided to turn to the government of Quebec. As The Globe in a brief moment of lucidity points out this cannot set a precedent. Ottawa appoints judges. It’s in the constitution. After the Senate Reference it must be clear that nothing can absolve Ottawa of the responsibility. Whatever the momentary political benefits of consulting and practically handing it over to Quebec, it can’t work.

The readiness with which Gascon’s appointment was accepted, without the ‘process’ of a Selection Panel of MPs and a Commons committee hearing, exposes it as the folly that it is.

And what do those who complain of the ‘secretive’ process actually want? That every suggested name, every indication of willingness to serve, every comment on the merits or possible flaws of every prospect should be published in real time and argued over in the media and Parliament? Many good judges would not be willing to serve under such a ‘process.’

That would be ‘politicising’ the Court, what Harper is foolishly accused of doing.

Even the Liberal justice critic Sean Casey had the decency to say "To suggest [Nadon] was brought forward because he has the same philosophy as the government does him a disservice,…”

The one issue raised about Gascon’s appointment was that in losing Morris Fish, the Supreme Court was losing criminal law expertise and as a commercial lawyer Gascon could not make it up. But this highlights the absurdity of the Nadon controversy and the Court’s judgment. As a criminal lawyer Fish was likely less up to speed with Quebec Civil Law than Nadon. And though bilingual he is not a Francophone. Nadon’s appointment in Fish’s stead would have strengthened the Franchophone/Quebec/Civil Law element in the Court.

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