Errol Mendes is a professor of constitutional and international law at the University of Ottawa and is the founding editor-in-chief of the National Journal of Constitutional Law.
A fundamental principle of democracy is that elected governments understand and appreciate the workings of checks and balances against their range of powers. In the Canadian constitutional system, even if a government has a majority in the House of Commons, a prime minister will understand that his political goals will sometimes be challenged by a range of actors in society from citizens to the courts.
Unfortunately, since the Conservative Party under the leadership of Prime Minister Stephen Harper was elected – first to the position of a minority government in 2006 and presently as a majority government – those that have offered reasonable and legitimate advice and challenges to the political and legal goals of the Harper government have faced unprecedented smears from the highest ranks of the party and the government.
The growing range of individuals that have had to endure such smears have included: academics (myself included); environmental groups labelled as extremists and radicals funded by foreign entities; public servants just doing their job, such as Linda Keen, the former head of the nuclear safety watchdog, Peter Tinsley, the head of the Military Police Complaints Commission and Richard Colvin, the foreign service officer who testified on the treatment of Afghan detainees; Chief Electoral Officer Marc Mayrand for alleged bias; and, astonishingly, former auditor general Sheila Fraser, who has faced innuendos of conflicts of interest.
However, even this level of extreme anti-democratic behaviour has been surpassed with the current attempted smear against the Chief Justice of the Supreme Court of Canada, Beverly McLachlin. The Prime Minister’s Office has suggested that Ms. McLachlin inappropriately tried to call Mr. Harper’s office about the appropriateness of selecting Marc Nadon for the Quebec vacancy on the Court. PMO spokesman Jason MacDonald asserted that the Prime Minister rebuffed the call of the Chief Justice on the advice of his justice minister. The spokesman asserted that the Chief Justice initiated the call first to the Minister of Justice, Peter MacKay, and that he advised Mr. Harper not to take her call – which he concurred with. The implication of these statements is that the Chief Justice acted inappropriately, as according to the statement of Mr. MacDonald: “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.”
In contrast to this attempt to impugn the integrity of 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, the actions of the Chief Justice could actually have been in the best interests of the country and the Court.
It was perfectly legitimate for the Chief Justice to advise Mr. MacKay on the consequences of appointing a judge from the Federal Court for a Quebec seat. Indeed, what the attempted smear does not reveal is that the Chief Justice was consulted by the parliamentary committee screening the short list of candidates and she provided her views on the needs of the Court. Given her position, it would be totally appropriate to go further and speak directly to the Minister of Justice. Given the institutional impact on the Court, it would be negligent for the Chief Justice not to do so. According to the executive legal officer of the Court, Owen Rees, at no time did the Chief Justice express any views on the merits of the appointment of Mr. Nadon.
Likewise, it would also be negligent of the Prime Minister either directly or through the advice of his Justice Minister not to seek the views of the Chief Justice for appointments to the Court, as other justice ministers and possibly prime ministers in the past have done.
To then turn these consultations into an innuendo of inappropriate lobbying by the Chief Justice is to endanger 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. This should be the most cherished of constitutional principles, even if the highest court has ruled against the government on some of it most cherished political goals. Democracy demands it.