The growing spat between Stephen Harper and the Supreme Court - 2014-05-08
Extraordinary as their recent public feud has been, conflict between Prime Minister Stephen Harper and Chief Justice Beverley McLachlin of the Supreme Court of Canada might have been inevitable. The two most powerful Albertans in Ottawa—Harper an adopted son of Calgary, McLachlin a native daughter of Pincher Creek—rose by routes that arguably put them on a collision course. He climbed in conservative circles where deep concerns about judges overstepping their proper bounds in the era of the Charter of Rights and Freedoms have long been common intellectual currency. She was first appointed a judge in British Columbia in 1981, the year before Pierre Trudeau's constitutional reforms introduced the Charter, and so has spent much of her storied judicial career interpreting laws according to it.
But framing this unprecedented clash in terms of the career paths of the combatants fails to capture its intensely personal flavour. It was sparked by the McLachlin court's unanimous [my mistake, it was a 6-1 ruling; thanks to readers for pointing out this mistake] decision earlier this year to reject Harper's surprise choice of Marc Nadon to join it by filling a Quebec vacancy, on the grounds that as a federal court judge, rather than a Quebec judge or practising lawyer, Nadon wasn't eligible. Months earlier, McLachlin had been consulted on the nomination by Justice Minister Peter MacKay and a panel of MPs, which is routine. It turns out she also looked into talking directly to Harper on the matter last summer, which is not. MacKay recommended against it, and Harper agreed. Controversy erupted only last week when Harper's spokesman termed McLachlin's idea of a chat with the PM on the issue "inadvisable and inappropriate."
Applying the word "inappropriate" to the behaviour of the country's top judge was nothing short of shocking. Harper explained that the problem, as he saw it, was that he anticipated a challenge to Nadon's appointment might eventually come before McLachlin's court, which is indeed what happened. But McLachlin said she merely tried to flag the likelihood of that legal obstacle, without improperly tipping her hand on how she thought her court might ultimately decide it. "At no time did I express any opinion as to the merits of the eligibility issue," she said in a statement issued by her office. "It is customary for chief justices to be consulted during the appointment process and there is nothing inappropriate in raising a potential issue affecting a future appointment."