Harper’s Supreme Court fumble damages a long-standing conservative cause

Share

Prime Minister Stephen Harper has damaged one of the long-standing causes of Canadian conservatism: reducing the prime minister's royal power over appointments to the Supreme Court.

By rigging the multi-party process for the abortive appointment of Marc Nadon, Mr. Harper has jeopardized parliamentary vetting for the high court.

The Globe and Mail's Sean Fine has provided a behind-the-scenes look at the most remarkable appointment in Canadian history. It renders laughable Mr. Harper's suggestion that Chief Justice Beverly McLachlin tried to place an inappropriate call to him about a matter related to the appointment that was before the courts.

But above all, it exposes the process as a sham. Now the two opposition parties, the NDP and the Liberals, say they might not take part the next time.

"Do I want to waste my time?" asked Francoise Boivin, the New Democrat MP who sat on the closed-door committee that selected the shortlist last time.

Mr. Harper will soon have to appoint two Supreme Court justices – one for the still vacant spot Mr. Nadon was supposed to take, and a second to replace Justice Louis LeBel, who retires in November.

Liberal MP Sean Casey, the party's justice critic, expressed doubt about his party being involved in a similar process: "Our political party would look long and hard before committing to a process that has gone so terribly wrong."

It hurts a cause embraced by the Reformers who came to Ottawa in the 1990s, pledging to put some of the Prime Minister's kingly powers to democratic scrutiny.

The system in place now, where MPs of all parties review candidates for a shortlist but the PM appoints the judge, is not all they hoped for, but it evolved over the past decade to provide some balance to the prime minister's power. Or so we thought.

Instead, Mr. Harper's government engaged in a little sleight of hand. There's a trick that card sharks and magicians call "forcing a card," where they make their mark feel like they're picking a card, when in fact it was forced upon them. That's what the Conservatives did with this appointment.

In the end, Mr. Nadon was ruled ineligible because has was a judge of the Federal Court of Appeal. The Supreme Court Act says that the three justices who sit on the top court as Quebec representatives must come from the ranks of the province's active lawyers, or from the Quebec Superior Court or Quebec Court of Appeal. There had long been a fussy legal question about whether Federal Court judges could be eligible, too.

Before that, there was a selection process that was supposed to be relatively simple. The federal justice minister is supposed to consult with the Quebec legal community, and come up with a long list. Then a multi-party committee of five MPs would whittle it down to a shortlist of three behind closed doors. The PM would choose from that list.

But the government beat their own system by ignoring the people they consulted and packing the long list. Four of the six names were from the Federal Court or Federal Court of Appeal, and so of doubtful eligibility, but at least one of them had to make it to the shortlist of three. The long list included some less than renowned judges.

When the committee of five MPs – three conservatives and two opposition MPs – voted, Mr. Harper was guaranteed to get some more conservative alternatives to the heavyweight contenders, Quebec Court of Appeal justices Marie-France Bich and Pierre Dalphond. He did. He was able to choose Mr. Nadon.

Now, if Mr. Harper wanted a conservative judge, he had every legal right to appoint one. Prime Ministers have unilateral, kingly power to appoint Supreme Court justices. But he pretended the choice was vetted through a non-partisan process.

The process itself had worked before. But this time the government used its control of the long list, and the shortlist, to manipulate the outcome. The opposition parties have no interest in getting burned again.

"If you have a process that's fixed, why do you need a process?" Mr. Casey asked.

Ms. Boivin said the system won't work if the government just ignores the people it consults as it drafts their initial long list of candidates.

And then there's the shot Mr. Harper took at the Chief Justice, suggesting she inappropriately tried to contact him about legal issues around Mr. Nadon's appointment that could come before the court. In fact, she called Justice Minister Peter MacKay, and took steps to contact Mr. Harper, to flag the eligibility issue after MPs on the committee consulted her – and before they had made their shortlist.

It could all mark the end of the experiment in having MPs from all parties vet the candidates for the top court. It's a system that offered some check on the prime minister's power.

That's what Reformers wanted when Mr. Harper first came to Ottawa. As prime minister, however, Mr. Harper has damaged the idea.