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.