Editor’s Note
On May 6, 2014, our Faculty Council passed a unanimous motion calling on Prime Minister Stephen Harper and Justice Minister Peter MacKay to apologize to Chief Justice Beverly McLachlin of the Supreme Court of Canada for impugning her integrity and that of the Court. The letter is available here: Calgary_Faculty_Council_May_2014; the text is set out below.
The Faculty of Law Council at the University of Calgary joins with the Canadian Council of Law Deans and members of the legal community across Canada in expressing its grave concern with respect to statements made by Prime Minister Stephen Harper and Minister of Justice Peter MacKay, suggesting that Chief Justice Beverley McLachlin engaged in improper conduct in the context of the appointment of Mr. Justice Marc Nadon to the Supreme Court of Canada.
On the contrary, the facts confirm that the Chief Justice’s actions were consistent with the duties of her office, responsible, and beyond criticism. To suggest that the Chief Justice in performing her administrative role was inappropriately lobbying is to endanger one of the most important aspects of Canadian constitutional democracy, that being the relationship of respect between the independent judicial and executive arms of our government.
The University of Calgary Faculty of Law Council joins in the legal community’s condemnation of the government’s declarations regarding the actions of Chief Justice McLachlin. Our shared sentiment is that this is an unprecedented, baseless attack on one of the most important institutions of Canada’s constitutional democracy.
We call on the Prime Minister and the Minister of Justice to immediately and unequivocally apologize to the Chief Justice for wrongly impugning her integrity and to the Supreme Court of Canada for attempting to compromise its independence.
Unanimously approved by the University of Calgary Law Faculty Council on May 6, 2014.
J. Farrington
I’m not sure that I agree. First, do we know exactly what the facts are? It seems that there was some contact. The Prime Minister’s Office appears to characterize the contact as “lobbying” and the Chief Justice’s Office appears to characterize it as “alerting to a potential problem”. I think that most would agree that normally a justice would not be expected to give advance substantive comments on a matter that might come before them, particularly to a potential litigant. Having given advance comments, one must at least ask the question of whether they ought to then hear the case. If one then considers the “more than a sitting justice argument” (being the alternate Governor General with a potentially broader and advisory role) it necessarily leads again to the question of whether the case should be heard having been involved in the preamble. In order to characterize the conduct as typical, one needs to abandon the “necessity of an independent judicial branch argument” because the justification is based upon it being normal and typical to cross over from the judicial branch to the executive branch in an advisory role rather than on maintaining independence strictly. The argument is actually about justifying crossover between the branches in limited circumstances rather than about maintaining strict independence. Do we know enough about the facts to demand apologies so quickly? Each side has their version as to what happened. Either side of the debate can be easily argued based upon the limited information that we have. Each side has likely said all that they intend to say on the issue without us telling them that they need to say more. In addition, we have to remember that the Prime Minister and the Minister of Justice may well have different rules that apply to them as to what they are able to say on the matter. One is a lawyer that is bound by a Code of Conduct and one is not bound by the same Code of Conduct. Actually, a little tension between the two branches might be a good thing in helping define the boundaries between the two branches better. I am not sure that this is a matter where we can rush to judgement in the way that many have done.
Susan Wright
I wish to add my voice to that of the Faculty of Law Council in condemning Mr Harper’s outrageous attack on Chief Justice Beverley McLachlin. This is another example of the behavior we’ve come to expect from a petty prime minister who throws a hissy-fit whenever he doesn’t get his way. Mr Harper and his Justice Minister owe the Chief Justice an apology.
Susan Wright LLB
U of C, Class of 85