Chief Justice Beverley McLachlin moved to stifle controversy over her role in awarding the Order of Canada to abortionist Henry Morgentaler today, saying she purposely did not cast a vote at a committee meeting where his name was proposed as a recipient.
Chief Justice McLachlin told reporters at the Canadian Bar Association's annual convention that her critics mistakenly believe she took a position in favour of Dr. Morgentaler receiving the award.
"There has been a lot of misinformation on this issue," she said. "Some idea was put out by I don't know who - a rumour or some source - that the chair leads the discussion. That is just not the case. My view is I'm there to ensure that the meeting runs well and fairly, and that the vote is taken fairly - not to weigh in in favour or against a particular candidate."
Chief Justice McLachlin was recently targeted in an anonymous complaint to the Canadian Judicial Council about her conduct in the Morgentaler decision. However, she said today that she is required by law to chair the Order of Canada nomination committee. "It's not something I chose to do," she said.
Speaking at a press conference, Chief Justice McLachlin said that her policy has always been to refrain from voting on Order of Canada nominees. "I feel reasonably comfortable about the process, doing it the way I have outlined that I do it and not getting involved in voting for a particular candidate or advocating for a particular candidate," she said.
"I made a personal policy decision that I would not weigh in for or against a particular name ... and that is the way I have always proceeded," she said. "In fact, I do not vote except I reserve the right to vote in the rare case of a tie. ... I'm told that I voted once to break a tie. I don't have a recollection of that. My recollection is that I have never voted."
Within moments of her declaration, Manitoba Chief Justice Richard Scott - chair of the Canadian Judicial Council's disciplinary committee - said that the chief justice's defence will likely derail the misconduct complaint.
"Based on the explanation that [Chief Justice] McLachlin gave us today - what she explained her role as - it is not likely to be viewed as judicial misconduct," he said.
"As the Chief Justice said, from day one, the chief justice has chaired the Order of Canada," Chief Justice Scott added. "In light of the role that she has assigned to herself, I'd be surprised if many people would have a problem with the way that she carries out that particular role."
He said the CJC complaint will undergo an initial examination by staff lawyers to determine whether the possibility of misconduct is so remote that it should be dismissed without a full investigation by the disciplinary committee. Since the target of the complaint is a member of the CJC itself, he said, a "senior, experienced" outside lawyer will be asked to review this preliminary decision and provide advice to the disciplinary committee.
In years to come, Chief Justice Scott said the government may need to reconsider whether judges should be required to chair commissions they are currently required to sit on - including those which decide provincial electorial boundaries.
"These are historical things that judges have done over the years because of our reputation for indepedence and impartiality," he said. "At some point in time, I think that we have to look at those kind of roles, as our society changes and people become more aware of the distinct role that the three branches of government had."
Stressing that he did not want to prejudge the Morgentaler complaint, Chief Justice Scott said noted that the complaint may contain other allegations that he is not aware of.
