Michael Bryant was attorney-general of Ontario from 2003-2007, clerked for Chief Justice Beverly McLachlin in 1993, taught constitutional law at King’s College, London, and co-authored the book Public Law (Carswell) with the current Dean of Osgoode Hall, Lorne Sossin.
The problem with what Prime Minister Stephen Harper said about Chief Justice Beverly McLachlin is not about protocol or political debate or just bad taste. Our Prime Minister showed contempt for the Chief Justice of Canada, by trying a childish, political gotcha tactic against someone for whom there is supposed to be constitutional independence and institutional, if not personal, respect.
In another era, the justice minister would have resigned. The incident marks the complete breakdown of the constitutional relationship between the executive and judicial branches, threatening Canadians’ confidence that their government has an effective judicial watchdog to protect them against political hubris and worse.
It’s not that the prime minister and chief justice are supposed to get along, or even agree on anything. The issue at hand is who is supposed to do what. The prime minister is not supposed to be in charge of appointing judges, but that’s what has happened under Stephen Harper. It may seem like a distinction without a difference, but there are some very good reasons why the attorney-general or justice minister (basically interchangeable in Canada) takes the lead on judicial appointments, and why the appropriate channel between cabinet and judiciary is through the peculiar office of the attorney-general, who is both political cabinet minister and non-political chief legal officer to the cabinet.
In a paper only a mother could read, at the request of the Quebec Bastarache Commission on judicial appointments, I chronicled my experience in appointing about 70 judges and 100 justices of the peace from 2003 to 2007. I advocated that the attorney-general protect his or her first minister – and the public – from politicizing the appointment process. In fact, thanks to my predecessors Ian Scott and Roy McMurtry, Ontario’s process is internationally renowned for its independence.
As for communication between the executive of government and head of the judiciary, it’s very clear how that is supposed to work. When I was Ontario’s attorney-general there were regular meetings and consultations between the chief justices and myself regarding appointments and court management. To be sure, I would have tried to block any outreach between the premier and a chief justice regarding an appointment, but that wouldn’t have prompted a reaction from the first minister, à la Mr. Harper’s scandalous smear of Canada’s Chief Justice (for whom I clerked in 1994, but with whom I haven’t had occasion to contact for the past few years).
The sad truth is that the federal attorney-general, who is supposed to depoliticize the judicial appointments process, is politically impotent under Mr. Harper. That wasn’t true of the late attorney-general Jim Flaherty under former Ontario premier Harris, or of Mr. McMurtry under William Davis. This has long been the case under the Harper government, however. Under the Paul Martin government, when I was provincial A-G, I was consulted by federal attorney-general Irwin Cotler directly. Although I knew officials in the PMO, they always made it clear that any appointment decisions were Mr. Cotler’s to make. Maybe the PMO leaned on Mr. Cotler from time to time, but it was never the reverse.
Under the Harper government, in my experience, it is the reverse. The federal A-G might lean on the PMO functionary, if at all, but the responsibility for judicial appointments is well entrenched in the PMO. The PMO functionary would formally consult with me over the appointment of a chief justice, or a Court of Appeal judge, but the federal A-G was always missing in action. (That said, a pro-gun-control urban Liberal was never going to be the Conservatives’ touchstone for judicial appointments – fair enough).
It’s hypocritical, misleading and misconstrued for Mr. Harper to cry foul at Chief Justice McLachlin’s efforts to forestall an unconstitutional appointment. If the federal A-G weren’t so feckless today, then that would be where any discussion about an appointment ought to take place, and historically, that’s where it happened. Today, however, Mr. Harper is playing Captain Renault in Casablanca: shocked, shocked that the Chief Justice would request a meeting through the justice minister. The Chief Justice of Canada sought to honourably and effectively discharge her duties. The Prime Minister did the opposite.