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Jeffrey Simpson (Brigitte Bouvier For The Globe and Mail)

Jeffrey Simpson

(Brigitte Bouvier For The Globe and Mail)

Jeffrey Simpson

Attacking the Supreme Court, the Conservatives sink to a new low Add to ...

When 11 former presidents of the Canadian Bar Association rebuke the government for attacking Canada’s top jurist, it is fair to ask: How low can Prime Minister Stephen Harper’s government go? The answer is that just when you think new depths of conduct have been plumbed, even lower ones are found.

We might have thought that the depths were recently reached by Pierre Poilievre, the minister responsible for the so-called Fair Elections Act, when he attacked the Chief Electoral Officer, dismissed comments from former auditor-general Sheila Fraser and a long list of political scientists who opposed the bill, which has since been amended.

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Canadians, however, had not seen the worst. Mr. Harper, in one of his Nixonian moments in which he sees enemies everywhere, impugned the integrity of Beverley McLachlin, Chief Justice of the Supreme Court. Eleven former presidents of the Canadian Bar Association felt so strongly about the Prime Minister’s unjustified and unprovoked assault on the Chief Justice’s integrity that they collectively came to her defence – and that of the Supreme Court – in The Globe and Mail.

Governments have sometimes been mad at the Supreme Court. They have occasionally vented their frustration at particular decisions. But never has a prime minister suggested inappropriate behaviour by a chief justice, casting a pall over the entire court in the process.

Mr. Harper suggested (wrongly) that Chief Justice McLachlin had tried to contact him about a case before the court. His office spun the story to imply that only the intervention of Justice Minister Peter MacKay and the Prime Minister’s good sense prevented an improper conversation.

If such a conversation had happened, explanations would indeed have been in order. But it didn’t.

Chief Justice McLachlin explained that she had been consulted, as was normal, about a forthcoming appointment. She flagged that a problem might arise should a member of the Federal Court or Federal Court of Appeal be appointed from Quebec, given that the Supreme Court Act might not allow an appointment from that court.

When she spoke to the government, no one knew that a case involving the appointment of Justice Marc Nadon from the Federal Court of Appeal would land before the Supreme Court. To suggest, as the Prime Minister did (and as Mr. MacKay repeated in the Commons this week), that Chief Justice McLachlin wanted to talk about a case no one knew would ever come before her was false, malicious and politically motivated.

Attacking the integrity of the Chief Justice is a very serious matter, an attack without precedent in Canadian history. It shows a Prime Minister furious at the Supreme Court, angry at obstacles put in the way of his exercise of power, willing to misrepresent facts and lash out at one of the country’s most respected persons, who just happened to infuriate him in the exercise of her duties.

As prime minister, Pierre Trudeau was angry at the Supreme Court’s ruling on his efforts to patriate the Constitution. Brian Mulroney’s government did not like some of its rulings on prostitution laws and aboriginal rights. Mr. Harper’s government lost the argument about establishing Ottawa’s constitutional right to create a national securities regulator. Governments have sometimes been annoyed or angry with court rulings, but they have never impugned the chief justice’s integrity.

By attacking Chief Justice McLachlin and adding the Supreme Court of Canada to its enemies list, the government is sending a signal to its political base, MPs, candidates and fundraisers that it is now open season on the courts.

In recent months, the government lost five straight decisions at the Supreme Court on criminal law, the eligibility of Justice Nadon and Ottawa’s right to unilaterally change the Senate.

What must especially gall Mr. Harper is that he appointed a majority of the court’s current judges. He cannot attack “Liberal” or “liberal” judges. He can only attempt to question the integrity of the Chief Justice, thereby encouraging his troops to attack the Supreme Court and other courts that strike down or modify his policies.

This kind of attack has been a staple of Republican Party tactics in the United States. Canadian courts had been spared – but no longer.

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