News

The Canadian Judicial Council has tossed out a complaint against Chief Justice of Canada Beverley McLachlin that alleged she improperly played a role in a recommendation that abortion doctor Henry Morgentaler be nominated for the prestigious Order of Canada.

Announcing its decision this morning, the CJC said that the complaint “was not a judicial matter.”

The complaint, made in the form of 11 identical letters and two emails from individuals, was winnowed out at the very first stage of the CJC complaints process, in which a member of the CJC's Judicial Conduct Committee reviews it. When a complaint is found to involve a judicial matter and have sufficient substance, it moves into a second phase.

The complaint against Chief Justice McLachlin was reviewed by Manitoba Chief Justice Richard Scott. Since the complaint involved a member of the CJC itself, Chief Justice Scott's decision was reviewed by a senior outside lawyer – in this case, Thomas G. Heintzman, of the law firm McCarthy Tétrault.

Mr Heintzman agreed that they should be dismissed for the reasons given by Chief Justice Scott, the release said.

The Canadian Judicial Council is composed of the chief justices and associate chief justices of Canada's superior courts.

Dr. Morgentaler, an outspoken critic of a system that restricted abortions only to women who obtained the permission of hospital abortion committees, was charged, tried and acquitted three times for breaking the law. The abortion law was struck down by the Supreme Court in 1989 as being unconstitutional.

The controversy erupted in July, after the government released a list of those who will receive the Order of Canada this year.

Supporters were ecstatic that the physician's lifelong fight for abortion rights would be recognized with the country's highest civilian honour. However, critics denounced the decision, focusing much of their anger at the Chief Justice's role on the nomination committee.

Last month, Chief Justice McLachlin told reporters at the Canadian Bar Association that critics mistakenly believe that she voted in favour of Dr. Morgentaler receiving the award. She said that she purposely did not cast a vote at an Order of Canada committee meeting where his name was proposed.

“There has been a lot of misinformation on this issue,” Chief Justice McLachlin 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.”

She noted that, because of her position as chief justice, she is required by law to chair the Order of Canada advisory committee. “It's not something I chose to do.”

However, he move did not placate her accusers.

“If Canadians cannot count on non-political, non-ideological justice from the Supreme Court of Canada, it compromises the whole justice system,” Charles McVety, president of the Canadian Family Action Coalition and president of the Canada Christian College in Toronto, said in an interview at the time.

However, Dr. McVety, whose organization launched a complaint to the Canadian Judicial Council about the Chief Justice's conduct in the Morgentaler matter, said her explanation implicated her even more deeply in misconduct. “We were quite astonished to read reports of what she had said,” Dr. McVety said in the interview.

“We never accused her of voting. We accused her of disregarding the constitution that she is bound to serve. By expressing her approval of the process, she is expressing approval of Morgentaler's activism on abortion.”

Dr. McVety said that as the chair of a committee that is instrumental in conferring honours on individuals, some of whom may represent controversial causes that could come before the Supreme Court, the Chief Justice's independence is automatically compromised.

Chief Justice McLachlin told reporters that since becoming part of the committee, her policy has always been to refrain from voting on 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.

Within moments of her comments, Manitoba Chief Justice Richard Scott, who is chair of the Canadian Judicial Council's disciplinary committee, said that her defence would likely derail at least a portion of the misconduct complaint.

“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,” Chief Justice Scott added.

THE LETTER

A letter to the complainants from the CJC stated: “Your letter alleges that Chief Justice McLachlin ‘clearly demonstrates bias along with improper conduct driven by political ideology and personal agenda.' Your basic allegation is that, by being the Chairperson of the Advisory Council of the Order of Canada, and by reason of the Advisory Council recommending the awarding of membership in the Order of Canada to Dr Henry Morgentaler, Chief Justice McLachlin has misconducted herself and rendered herself unfit to be a judge.

“On the face of your letter, there is no merit, nor any facts to support, your allegation,” the CJC letter said. “By the Constitution of the Order of Canada, the Chief Justice of Canada is appointed as Chairperson of the Advisory Council. The Advisory Council provides advice with respect to nominations for appointments to the Order of Canada, and makes no decision. Its advice involves no claims or decisions about rights. As is noted below, Chief Justice McLachlin did not participate in the vote by the Advisory Council with respect to Dr Morgentaler. In all these circumstances, the complaints contained in your letter are, on their face, without merit.

“You allege that Chief Justice McLachlin's ‘vote and actions' are clear indications of her position on a matter which may come before the Supreme Court of Canada,” the letter said. "Your letter contains no facts to support such an allegation.

“The Constitution of the Order of Canada mandates that the Chief Justice of Canada is to be the Chairperson of the Advisory Council of the Order of Canada and, as noted above, Chief Justice McLachlin did not vote in regard to the nomination in question. In these circumstances, there is no foundation for the suggestion that Chief Justice McLachlin has misconducted herself as a judge, or that by acting as the mandated Chairperson of the Advisory Council, she has compromised her judicial integrity and independence.”