Prime Minister Stephen Harper and Justice Minister Peter MacKay breached confidentiality rules and tried to intimidate judges when they publicly criticized Supreme Court Chief Justice Beverley McLachlin, opposition parties say.
"Does the Attorney-General consider that it is part of his job to ensure that there are never any attempts to intimidate the courts in our country?" New Democratic Party Leader Thomas Mulcair asked Mr. MacKay in the House on Monday.
Mr. MacKay responded by defying calls from the legal community to withdraw the allegation against the Chief Justice made by the Prime Minister's Office last Thursday. Instead, he repeated it.
"My office was contacted by the office of the Chief Justice. After I spoke with her on that call I was of the considered opinion that the Prime Minister did not need to take her call. Neither the Prime Minister nor I would ever consider calling a judge where that matter is or could be before the court of competent jurisdiction."
The PMO made the same assertions in a news release last Thursday, and said that on Mr. MacKay's advice, Mr. Harper had declined to take a call from the Chief Justice. The Supreme Court followed with a statement of its own saying the Chief
Justice had been trying to flag the potential issue involving
the eligibility of a candidate – two months before he was chosen.
That candidate, Justice Marc Nadon of the Federal Court of Appeal, was eventually ruled ineligible for one of the three Quebec spots on the court.
The Supreme Court found he did not have current Quebec qualifications as defined under the Supreme Court Act.
Sean Casey, the Liberal Party's justice critic, said the Prime Minister had breached confidentiality rules designed to protect all participants and candidates in the selection process of Supreme Court judges.
The five members of an all-party committee that produces a short list of three candidates for the Prime Minister to choose from are required to sign an oath of confidentiality. So are the "witnesses" who appear before the committee – high-ranking lawyers and judges who give their views on the candidates. Indeed, so secretive is the process that one of its members, New Democrat Francoise Boivin, even refuses to say who those witnesses were.
"The Prime Minister … publicly breached the confidentiality of the selection process for Supreme Court judges," Mr. Casey told the House. "How can anyone, including the minister [of justice], have any faith in the process after what the Prime Minister has done?"
Mr. MacKay responded that the process had been the most inclusive one ever for the Supreme Court.
The government's consultations with the Chief Justice are an expected part of the appointment process, Mr. Casey said.
"I would suggest a Chief Justice will be less candid and will be silent if they know that what they say is going to be widely publicized."
The accusation of attempted intimidation was also raised by six former presidents of the Canadian Bar Association, including Yves Fortier, a former United Nations ambassador appointed by Progressive Conservative prime minister Brian Mulroney. "These circumstances leave concerns that the Prime Minister's statements may intimidate, or harm the ability of the Supreme Court of Canada to render justice objectively and fairly – even when the government of Canada chooses to be a litigant before it," the six said in an op-ed article written for The Globe and Mail.