This statement is made by eleven former presidents of the Canadian Bar Association: L. Yves Fortier of Montreal; Thomas G. Heintzman of Toronto; Simon V. Potter of Montreal; Susan McGrath of Iroquois Falls; D. Kevin Carroll of Barrie; Bernard Amyot of Montreal; Paul Fraser of Victoria; Daphne Dumont of Charlottetown; Guy Joubert of Winnipeg; Rod Snow of Whitehorse; and William Johnson of Regina.
The recent comments by Prime Minister Stephen Harper, claiming that the Chief Justice of Canada attempted an inappropriate conversation with him, demonstrate a disrespect by the executive branch for the judicial branch of our constitutional democracy, and for the Chief Justice of Canada as the most senior member of the Canadian judiciary. This is so despite the fact that the discussion in question involved a possible new appointment to the Supreme Court of Canada, a topic well within guidelines for appropriate conversations between prime ministers and chief justices.
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. Furthermore, the judicial branch, and judges generally, do not have the ability to defend themselves if those very relationships are used as grounds for attack.
The events in April to July 2013 demonstrate the usual and respectful relationship between the judicial branch and the other two branches of government. In April 2013, the Chief Justice, quite properly and according to long-standing tradition, provided her input to the appropriate parliamentary committee about proposed new appointments to the Supreme Court of Canada. In July, she provided her input to the Canadian government. These discussions occurred well before the nomination of Justice Marc Nadon. They were perfectly in line with the sort of courteous discussions which have historically occurred and which Canadians would expect to occur between the judiciary and the executive with respect to judicial appointments.
In contrast, the recent statements by the Prime Minister were made nine months after the conversations in question occurred, long after the Prime Minister could have dealt with any aspect of those discussions if there had been any good-faith reason to do so. The Prime Minister’s statements were made only after the government had been a litigant in appeals before the Supreme Canada, leaving the impression that the statements were aimed at the Court as a reaction to the result of the decisions in those appeals -- conduct in which no respectful private litigant should engage.
As recent press reports demonstrate, these circumstances leave us concerned that the Prime Minister’s statements may intimidate or harm the ability of the Supreme Court of Canada to render justice objectively and fairly -- even when the government of Canada chooses to be a litigant before it. In addition, the statement threatens to lead to abandonment of the fruitful and necessary respectful relationships between the Supreme Court of Canada and the two other branches of government and a refusal by the Court, and all courts, to have any dealings with the other two branches for fear of retribution to which the judicial branch cannot in any seemly fashion respond fully.
As former presidents of the Canadian Bar Association, we ask the Prime Minister to remedy this situation in a way which will demonstrate to our judiciary and to Canadians at large that he respects the independence of our courts and will treat with due courtesy the Chief Justice of Canada.