John Ivison: Harper’s attack on the Chief Justice qualifies as yet another blindside hit

| May 2, 2014 6:07 PM ET

Stephen Harper is a repeat offender when it comes to playing the man (or woman), instead of the puck, if they cross him.

Chief Justice Beverley McLachlin is the latest in a long list of people on the public payroll who have been hit by the Harper Conservatives — a list that includes the parliamentary budget officer, the chief electoral officer and the former auditor-general.

Ms. McLachlin is eligible to remain Chief Justice for another four years, so it’s possible the Conservatives are trying to make life so uncomfortable that she decides to retire early.

But, while spite plays a role in the current war of words between the offices of the Prime Minister and the Chief Justice, Mr. Harper’s comments Friday in London, Ont., reveal a fundamental rift on how the country should be run. This is not just a fight with the Chief Justice, it’s the early rumblings of a battle with the Supreme Court as an institution.

Mr. Harper raised the issue of the Charter of Rights, which since 1982 has given the courts an expanded role in judging the appropriateness of laws. “It is part of the dialogue of the democratic process. Parliament passes laws, courts occasionally strike them down or suggest alternatives and Parliament has the right to respond to that.

“I guess I would say that on some things you win and on some things you lose.”

That sounds far more resigned to our constitutional reality than it was. He went on to rant some more about the decision of the Supreme Court to overturn the appointment of Marc Nadon to its ranks.

Mr. Harper is more Old Testament – an eye for an eye – than New Testament – turn the other cheek. The Nadon reversal, even more so than the court’s decision to strike down the prostitution law, Senate reform or judicial sentencing, continues to fester with the Prime Minister.

When I asked senior Conservatives about their feelings on the Supreme Court this week, it provoked a dramatic response. The Chief Justice involved herself in the appointment process, lobbying against Justice Nadon, perhaps because she had her own preferred candidate, it was suggested.

The court hit back, saying that she did not lobby the government on the Nadon appointment – she merely called Peter MacKay, the Justice Minister, and Ray Novak, the Prime Minister’s chief of staff, to advise there may be a “potential issue” appointing a federal court judge to fill a Quebec seat on the court.

After the National Post story ran Thursday, the Prime Minister’s Office released its own statement, making it clear it felt the advice from the Chief Justice was not welcome. “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.”

The statement said the Chief Justice had called Mr. MacKay. He in turn called Mr. Harper and told him that taking a call from the Chief Justice would be “inadvisable and inappropriate.”

“The Prime Minister agreed and did not take her call.”

On Friday, Ms. McLachlin’s office issued a clarification of the PMO’s clarification.

On July 31 last year, Ms. McLachlin called Mr. MacKay and Mr. Novak to flag the potential eligibility issue but she said she did not express any opinion on the merits of the eligibility.

“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,” she said.

The Chief Justice’s office also made preliminary inquiries to set up a call or meeting with the Prime Minister but ultimately she decided not to pursue a call or meeting, her office said.

As a reminder, this is not two schoolgirls having a tiff — it’s two of the top three Canadians on the order of precedence.

It would be derisory, were it not so serious. Underlying the back and forth are conflicting views of how Canadians should be governed.

Mr. Harper maintains he was within his rights appointing Justice Nadon and does not seem prepared to let it lie.

“This decision will cause problems,” he said Friday. “The Supreme Court has decided that a Quebec judge at the federal court is a second-class judge. All the other judges from all the other provinces have the possibility of promotion to the Supreme Court but not Quebec judges — they no longer have the right as others do. And obviously that will create problems in terms of recruiting judges to a national, very important institution.”

So if the Prime Minister won’t let it lie, what is he going to do in future disagreements with the court?

His options are limited but there is one course of action that is already being whispered by Conservatives who want to see the government assert the sovereignty of elected officials — namely, use of the override power in the Charter, the notwithstanding clause. It has been used by three provinces (Alberta, Quebec and Saskatchewan) and one territory (Yukon) but never by the federal government. The clause was included in the Charter to protect the British tradition of parliamentary supremacy, to avoid giving the courts the final word.

I asked a Cabinet minister if it was being discussed, to which he replied: “Not seriously.” Which means it is being discussed.

Its time may come, even if it seems it has not arrived yet. In the interim, the Prime Minister seems intent on questioning the integrity of the Chief Justice.

In London on Friday, he needed little encouragement to point out that he sought advice on Justice Nadon from outside legal experts, not other judges.

“I think if people thought the prime minister or other ministers of the government were consulting judges on cases before them … before the judges themselves had the opportunity to hear the appropriate evidence, I think the entire opposition, entire media and entire legal community would be outraged.” The clear implication is that he believes Ms. McLachlin was trying to meddle in the appointment process in an inappropriate fashion.

Unless Peter MacKay tells us the Chief Justice spoke in favour of her preferred candidate, this qualifies as yet another blindside hit by the Prime Minister.

National Post