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Beverly McLachlin, Chief Justice of the Supreme Court of Canada, delivers a speech in Ottawa, Tuesday, February 5, 2013. McLachlin insisted Friday there was nothing wrong with how she and her office consulted with the federal government regarding a presumptive nominee to the high court's ranks. THE CANADIAN PRESS/Fred Chartrand (FRED CHARTRAND/THE CANADIAN PRESS)
Beverly McLachlin, Chief Justice of the Supreme Court of Canada, delivers a speech in Ottawa, Tuesday, February 5, 2013. McLachlin insisted Friday there was nothing wrong with how she and her office consulted with the federal government regarding a presumptive nominee to the high court's ranks. THE CANADIAN PRESS/Fred Chartrand (FRED CHARTRAND/THE CANADIAN PRESS)

Globe editorial

The PM’s losing case in Harper v. McLachlin Add to ...

Prime Minister Stephen Harper should clarify whether he thinks the Chief Justice of the Supreme Court acted inappropriately, as he appears to have alleged. We say “appears” because Mr. Harper is being passive-aggressive with regard to this matter, tossing out an accusation that doesn’t seem to have any basis in law or fact, and then refusing to comment.

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Mr. Harper issued a statement last week saying Chief Justice Beverley McLachlin tried to contact him last year, when rumours were circulating in legal circles that he was preparing to name a Federal Court judge to one of the three high court spots reserved for Quebeckers. The potential appointment of Marc Nadon was contentious, since Mr. Nadon was not a member of the Quebec bar, and that appeared to disqualify him under the terms of the Supreme Court Act. Mr. Harper went ahead regardless, the appointment was immediately challenged, and the government referred the issue to the Supreme Court itself. The justices ruled 6-1 that the appointment didn’t meet the requirements of the law; Chief Justice McLachlin was one of the six in the majority.

Chief Justice McLachlin has not hidden the fact she attempted to contact the Prime Minister, nor should she. As Chief Justice, she is expected to consult with the government about the needs of the court. It is fair to say that she wanted to signal an issue that might delay the arrival of a new justice and leave her short a body for an extended period – which, of course, is exactly what has happened.

Since her communication with the PMO occurred before Mr. Nadon’s appointment, it is hard to see how Chief Justice McLachlin was interfering with an active case, since there was no case until several months later. Still, if the government was truly concerned about her neutrality, its lawyers could have asked her to recuse herself from the reference case. They did not.

Ten months later, Mr. Harper is suddenly calling into question the appropriateness of the Chief Justice’s actions, after the court has ruled against his government. It is entirely appropriate for the PM to criticize a court decision, and criticize this decision he has. Fair enough. But taking petty potshots at the Chief Justice’s professionalism? It undermines confidence in one of our most vital institutions. It also undermines confidence in Mr. Harper.

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