Reasonable Doubt: Why we should care about Stephen Harper criticizing Beverley McLachlin

Outside of political pundits, not a lot of people are excited by headlines like “Prime Minister Criticizes Chief Justice”. Readers might get to that article after they’ve read “6 Reasons We Should All Believe in Unicorns” and finished perusing Internet cat videos. Unless the government is actually doing something, like passing new laws, people generally don’t care about politics.

But when Prime Minister Stephen Harper accuses the chief justice of impropriety, people should care. It’s a big deal and the accusation has far-reaching consequences for our justice system.

First, here’s what happened in a nutshell.

There was a vacancy for a Québec seat on the Supreme Court of Canada (SCC). There are nine judges on the SCC, and three spots are reserved for judges from Québec.

Last September, Harper appointed Justice Marc Nadon to one of the Québec spaces. Justice Nadon, however, was a Federal Court judge at the time he was appointed, and was not a member of the Québec bar. Since the open space was for a judge from Québec, he couldn’t be appointed to that space. It’s the law.

While the government was considering Justice Nadon, Chief Justice Beverley McLachlin rang Stephen Harper’s office to give the heads-up that there could be an issue with his appointment.

It was not improper for the chief justice to call the PM’s office at that point. Ultimately, the government has final say over who is appointed and, historically, communications between the SCC and the government about potential appointments are common. Nobody balked at the time of the call, probably because nobody thought anything of it.

Nadon was appointed in any event, and then a lawyer in Toronto challenged the appointment. The SCC heard the case and found that Nadon couldn’t hold the position because he did not meet the legal criteria. (Of note, the SCC currently has five judges that were appointed by Prime Minister Harper.)

It was only after this SCC decision—nine months after the phone call—that Harper said that Chief Justice McLachlin’s actions were “inappropriate” and “inadvisable”.

So, why should we care when the prime minister pouts and calls the chief justice names?

1. It makes people think our justice system is a sham.

On the surface, the PM’s statement may not seem that serious, but in the legal world, to call Chief Justice McLachlin, the epitome of judicial propriety and integrity, “inappropriate” is a monumental insult. For the PM to attack the propriety of the chief justice of the top court is to call into question the integrity of the justice system as a whole. It is similar to how a criticism of Stephen Harper would reflect on his Conservative cabinet in general.

2. The courts need to be independent from the government. Judges aren’t elected for a reason and they shouldn’t be dragged into politics.

Oftentimes, the SCC must rule on whether something the government did, or a law that the government passed, is contrary to existing laws or the Constitution. By publicly attacking the propriety of an individual Supreme Court justice, the government is dragging the courts into the political arena, where they do not belong.

There are many people that take the view that judges should be elected representatives, like politicians, but for a host of reasons, judicial independence is integral to our justice system. In his last article, Kevin Yee spoke about the need for the legal profession to be separate from the government or the public will not have confidence that it can be fairly represented in disputes against the government. This could not be truer for the courts themselves. It’s the court’s job to check the power of the state. Elected judges would inevitably have ties to political parties, and will be pressured to tow the party line. They also will be susceptible to influence by campaign funders and majority views, all of which may be detrimental to individuals and minority groups who may bring important constitutional issues before them. We need judges focusing on being judges, not being politicians.

3. It’s tough for the court to be impartial when the PM is publicly blasting the chief justice. Animosity between government and the court can undermine impartiality.

Part and parcel with judicial independence is impartiality. In the same way that judges’ decisions cannot be influenced by their own desire to be re-elected, we cannot have judges concerned about unwarranted personal, public criticism when their focus should be applying law correctly and justly, regardless of the whim of the current government.

Chief Justice McLachlin can’t publicly respond to Stephen Harper’s allegations. To engage in any sort of political mud-slinging with the current government would call into question the SCC’s impartiality in matters where the government is a named litigant. When the PM is bullying the chief justice, it undermines the public perception that the SCC can be impartial in its decisions concerning the government.

There was nothing insidious about Chief Justice McLachlin’s phone call to Prime Minister Harper’s office. By attacking the integrity of Chief Justice McLachlin, Prime Minister Harper has unfairly undermined our justice system as a whole. If tolerated or left unchecked, these sorts of criticisms damage public perception of the judicial system, which could ultimately lead to an actual loss of the independence and impartiality of our courts.

Mr. Harper: you need to take it back.

Comments (13) Add New Comment
John Twigg
It's a stretch to call McLachlin the epitome of judicial propriety and integrity
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MarkFornataro
Great commentary.Harper's picking a fight with Chief Justice McLachlin is nothing short of scandalous and is in line with his muzzling of government scientists and his government's bad-mouthing environmentalists. Heave Steve in 2015!
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Bruno Brown
I would be more concerned about Harper's barking along with his sidekick Big Mouth Baird toward Mr. Putin.Of course Harper is barking because Obama told him to and maybe ,just maybe we'll consider Keystone, in the meantime you [Harper] and Bozo Baird are to keep on barking because protocol does not allow Obama to say or repeat what he tells them to say and do.In the meantime Harper has no time to deal with Canadians, just bark,bark bark bark.
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Jovis
It's a stretch for you to make a comment like that! But then again, the trolls working out of the PMO are very stretchy...and sketchy.
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Jamie
CJ McLachlin contacted JM McKay and attempted to contact the PMO before Nadon's name was put forward, not after - that is the issue; there was no interference because there was no named candidate. Surely it is proper for the CJ to point out what the constitution explicately states.
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Legal System
"By attacking the integrity of Chief Justice McLachlin, Prime Minister Harper has unfairly undermined our justice system as a whole. If tolerated or left unchecked, these sorts of criticisms damage public perception of the judicial system, which could ultimately lead to an actual loss of the independence and impartiality of our courts."

The above is a nonsense statement.

First, we don't have a "justice system", we have a "legal system". Decisions by the Court are made only the basis of how judges perceive the law through the lenses of their own bias.

Second, criticizing the Chief Justice does not unfairly undermine the system as a whole. It is simply arrogant to believe that.

Further, to state that judges, especially the Chief Justice, should not be open to attack is dangerous, and what is more dangerous is to squelch such dissent. We must not forget that judges have absolutely no accountability for the decisions they make. A judge can completely destroy an innocent person's life and face no consequences for that action. In the face of judges having that kind of power, judges absolutely need to be criticized by elected politicians and the public at large. Whether or not Harper's criticism is justified in this case, and I don't think it is, can be debated and refuted but to imply that such criticisms should not be made is dangerous to democracy.

Third, public perception of the legal system is already poor, and is even poorer in the eyes of the public who have to suffer going through it. This is largely caused by the system itself, which his entirely dysfunctional for anyone who can't afford a team of lawyers.

Fourth, the Courts have already lost their independence and impartiality to the business community. Most judges are lawyers, and usually well to do lawyers, having extensive ties throughout the business community. Even if there is no conscious bias, the mere fact of such life experience biases a judge's decision toward business concerns. One only needs to look at the arc of jurisprudence, including the rather blatant falsehood of corporate personhood, to understand this.
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Call BS
The PM's actions against the Supreme Court and it's current Chief Justice & Judge(s)is 'inappropriate" & typical Neo-Con hack Tea Party style attacks.

But the simple fact is that Supreme Court Justices are Political appointment's by definition appointed by the majority Government of the day for over 100 years.

Canada is stuck in last century's Westminster system while even the UK has evolved much more with both Judges and oversight of Lawyers (Independent Ombudsman vs Canada's Provincial Law Society's Lawyers overseeing Lawyers without the kind of transparent Ombudsman in the UK).

The top Judge in the land ought to be conducting so called heads up via official letter not an informal phone call.

It's fun to watch the Neo-Cons poke themselves in the eye on this by their Tea Party style cheer leader in chief.

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Concerned citizen
Harper should take it back. The truth is if people start calling names they can truthfully say he's not acting like a Prime Minister but as a petty, evil dictator. It's not enough that he's been bent on destroying our environment, endangered species, people's rights with his corrupt government he also tried to affect the justice system as well in our country. The Marc Nadon attempt was simply so he can do worse to our country with impunity. Now he's calling names because he's pouting!
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Hazlit
As a longtime American resident I feel like I went through this years ago. Hey Canada--welcome to the U.S., where five conservative judges elect the head of state, where a five minute visit to your GP costs you a cool $300, and where corporations run rampant over the rights of individuals. How'd you like 'em beans.
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blah
#1 - OUR JUSTICE SYSTEM IS A JOKE!!! #2 - JUDGES SHOULD BE ELECTED!!! Otherwise, they only answer to their like minded legal buddies who appoint them. They should answer to the public. Most legal types are one percenters and have a very slim grasp of what the average Canadian goes through when they casually excuse criminal behavior and crassly dismiss the concerns of victims. Judges in this country care more for the rights of the criminals than the rights of victims. #3 - A judge who is strong in his beliefs won't really care about what politicians say.
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Robin Ottawa
The thing that no one ever includes in the context for this issue is that while it may be fine if your neighbour or a lawyer criticises the Chief Justice, it is very different for the PM to do it. If you add that, then everything in this article makes more sense.
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Chris Budgell
With regard to the author's point no. 1 - "It makes people think our justice system is a sham." - our (so-called) justice system IS a sham, and I exect that is understood more widely within the legal profession than within the general population, though of course lawyers who want to stay in practice cannot publicly admit the truth.

On point no. 2, the presumptive references to "judicial independence" or an "independent judiciary" are so numerous that any student of rhetoric would immediately recognize it as the tool it is: presumption and repetition ad nauseum. In fact, I cannot think of an institution less deserving than our judiciary of the term "independent". To recognize this it helps of course to have been a "self-represented" litigant standing alone in a courtroom trying to contend with both the Bar and the Bench. I've done that a number of times and expect to be doing so again within the next few months.
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Snicker
”Bend the rules, you will be punished; break the law, you will be charged; abuse the public trust, you will go to prison.” Steven Harper.

Laws, constitution, civil rights, and judicial systems do not apply in dictatorships. And falsehoods are just a form of free speach according to A Conservative Party member (can't recall individual's name at moment).

Wonder if Stevie's statement will ever immediately apply to anyone within the party circle before they become a public credibilty liabilty? He certainly feels the need to enforce that statement, in one form or another, on others not in his prefered group. Haven't heard much about the election fraud charges one Conservative MP is facing.
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