This Prime Minister is going where no other has gone before. He's bringing a long-bubbling political culture war with the Supreme Court into the open, with a personal twist.
Now, Prime Minister Stephen Harper and Chief Justice Beverley McLachlin are trading shots in public, with Mr. Harper suggesting the judge of the highest court in the land broke an ethical rule.
This is something that just didn't happen in Canada, where politicians treated the Supremes with deference and discretion. Even those who didn't feel awe for the court, like Mr. Harper, who had suggested the court was populated by liberal activists, didn't take on the justices directly. The court's aura as an impartial, respected institution led politicians to feel they just couldn't win. Until now.
This is a Prime Minister who believes the courts have exceeded their purview to set social policy and should be pushed back so governments, like his, govern. He's a politician who likes to play the outsider, fighting off the Ottawa elites, including a Supreme Court that's "blocking" Senate reform. He's always wanted to take the justices down a peg.
But a string of rulings against the government, notably the court's decision that Mr. Harper's nominee for the Supreme Court, Marc Nadon, was constitutionally ineligible, appear to have made him willing.
The he-said, she-said between the PMO and the Supreme Court has been stunning. After Conservative whispers that the Chief Justice had lobbied against Justice Nadon's appointment, the PMO said Mr. Harper had refused to take her "inappropriate" call about legal issues around the appointment. It implies she might not have been impartial when she heard the case later. The Chief Justice said she was consulted as per routine, flagged a legal issue, and didn't, in the end, call the PM.
It's remarkable because the Prime Minister and his office have not shied away from the argument. The timing is remarkable, too: the events in question took place last July, but Mr. Harper's office chose to discuss them this week.
"Why now?" said Emmett Macfarlane, a University of Waterloo political scientist. Even if one thinks the Chief Justice's flagging a legal issue was unwise, the PMO seems to be "impugning her integrity," he said. "It's unprecedented."
There is, in Mr. Harper's political ethos, an inclination to be less deferential to the Supreme Court. He, and several of the advisers and ministers around him, saw the courts as activists applying social theories to strike down Parliament's laws.
That view is shared by many Conservatives, and Mr. Harper has shown he wants to use the Supreme Court as a foil to burnish outsider credentials. At last October's Conservative convention, he railed against the court for blocking his Senate reform plans – though the court didn't rule against them until last month. Questioning the Chief Justice's credibility might make it an easier target.
A string of rulings, including one striking down prostitution laws, brought defeats to Mr. Harper's government. But the March decision to block Justice Nadon's appointment was more like a personal rebuke.
The PM had reached into the ranks of semi-retired judges to appoint the unrenowned Justice Nadon, and some legal analysts believed he was to be the antidote to judicial activists.
There was a legal grey area, because it was not clear whether a judge of the Federal Court of Appeal was eligible to sit on the top bench as a Quebec judge, but Mr. Harper was armed with eminent legal opinions. The Supreme Court's decision to rule against Justice Nadon anyway appears to have stung Mr. Harper as personal. On Friday, he essentially said, in public, the court was wrong.
The dispute has surprised watchers like Prof. Macfarlane. "The PMO and Supreme Court should not be engaged in a PR war." He said he doubts the Conservatives have to anything to gain politically. The party's base is more critical of judicial power, but most Canadians aren't, he said.
This has become the Canadian political equivalent of parents fighting in front of kids: It threatens to undermine the credibility of both. Mr. Harper is a veteran political fighter, however, and he might judge that a battle is more likely to scuff the untouched aura of the Supremes. No prime minister has tried it before.