Maybe the Chief Justice of Canada Should Have Asked Justice Stevens To Call Prime Minister Harper

May 2nd, 2014

There is something of a separation of powers battle brewing north of the border. In short, recently the Supreme Court of Canada rejected the Prime Minister’s appointment of for a seat that was to be reserved for a lawyer for Quebec. Although the lawyer spent many years practicing in Quebec, he has not done so recently, and was deemed by the Court to be unqualified. (I am grossly oversimplifying here). Before the decision was issued, the Chief Justice of Canada attempted to call the Prime Minister of Canada about the case. The PM declined the call. The Globe and Mail has the report:

Prime Minister Stephen Harper has accused Supreme Court Chief Justice Beverley McLachlin of breaching a basic rule of her office, as a deepening conflict between the government and the country’s highest court breaks out into a public dispute.

The Prime Minister’s Office publicly asserted that the Chief Justice attempted to contact Mr. Harper about a court case, and said that he refused to take her phone call when Justice Minister Peter MacKay told him it would be “inappropriate.”

The case involved Mr. Harper’s Supreme Court appointment of Justice Marc Nadon, whom the court eventually ruled ineligible. Both the public dispute between a prime minister and a chief justice, and the allegation itself, are unprecedented.
“Neither the Prime Minister nor the Minister of Justice would ever call a sitting judge on a matter that is or may be before their court,” the Prime Minister’s Office said in a statement released early Thursday evening. “The Chief Justice initiated the call to the Minister of Justice. After the Minister received her call he advised the Prime Minister that given the subject she wished to raise, taking a phone call from the Chief Justice would be inadvisable and inappropriate. The Prime Minister agreed and did not take her call.” It does not specify when the alleged attempt at contact occurred. Any attempt at contact about a case would be a serious breach of the separation between the judicial and executive branches of government, without a known precedent in Canadian history, according to Supreme Court historian Frederick Vaughan. “It’s absolutely unheard of that a judge would call a member of cabinet or government in a case that is before the court. It’s an inflexible rule,” he said, adding that he thinks Chief Justice McLachlin would have to resign if she broke that rule.

I am not an expert in the Supreme Court of Canada (though I’ve received frequent requests to build a Fantasy league for Canadian law students), though the separation of powers implications here are fascinating. Can you imagine if Chief Justice Marshall gave Jefferson a heads up about Marbury? Or if Chief Justice Taney asked Lincoln nicely not to suspend Habeas Corpus? Of if the New Deal Court gave Roosevelt an opportunity to free the Japanese-Americans detained at concentration camps (oh wait, that kind of stuff routinely happened during the 1930s and 1940s). Which brings me to the most recent example of our own separation of powers being tested. Justice Stevens.  Lyle offers some facts about how closely the testimony was tied his role as a Justice:

His prepared testimony before the Senate panel was distributed for him by the Court’s staff.  He no doubt had at least some help with it from a government-salaried law clerk.  And they very likely did some work on it in the judicial chambers he still occupies.  The remarks are clearly his own, but they have the patina of the high judicial office he held for nearly thirty-five years.

Some don’t see any problem with him testifying before the Senate. But here, we have a Justice offering commentary to the other branch, outside the context of any case or controversy, about live issues in our legal system. Would anyone have a problem with Justice Stevens meeting with the President to talk about campaign finance law, detention policy at Guantanamo Bay, or maybe even drone policy? Tonight, I fly to Vancouver to attending the Association of Law, Property, and Society Meeting. I’ll do my best to heal the situation. I’ll plan on a reading of Federalist 78 as I clear customs.

Update: The CBC offers an alternate perspective.

A statement issued by the Supreme Court’s executive legal officer, Owen Rees, explains McLachlin was consulted by the special parliamentary committee that was tasked with studying a short list of names drawn up by MacKay’s office. The statement from Rees was a response to a question put by journalist John Ivison of the National Post asking for a comment about whether McLachlin “lobbied against Justice Nadon’s appointment,” as Ivison says a source had told him. “The chief justice did not lobby the government against the appointment of Justice Nadon,” Rees wrote. He said McLachlin or her office flagged a potential problem to both MacKay and the prime minster’s chief of staff, Ray Novak, but “did not express any views on the merits of the issue.” Late Thursday, the Prime Minister’s Office issued a statement saying MacKay informed Prime Minister Stephen Harper that taking a call from the chief justice would be “inadvisable and inappropriate. The prime minister agreed and did not take the call.” There is nothing in the statement from McLachlin’s office saying she wished to speak directly to Harper, and nothing in the statement from the PMO, written by spokesperson Jason MacDonald, that McLachlin in fact asked MacKay if she could speak to Harper. The PMO statement also says, “Neither the prime minister nor the minister of justice would ever call a sitting judge on a matter that is or may be before the court.” However, the time line indicates McLachlin called MacKay at the end of July, shortly after she had spoken to the selection committee examining a short list of candidates for the court vacancy. At that point, there was no nomination, let alone a court case.