Supreme Court Chief latest victim of the Harper shoot-the-messenger policy


One thing has become abundantly clear from the constant feuding between the Harper government and various senior members of the executive and judicial branches of government: Steven has a serious problem with authority.  These authorities include such heavy-weights as former Auditor General Sheila Fraser and the current chief electoral officer Marc Mayrand who were the subject of excessive criticism over their objections to the governments so called “electoral reforms” which bordered on slandering their reputations.  Now we are expected to believe that the government was being inappropriately pressured by the Chief Justice on the disastrous appointment of Marc Nadon.  The irony, of course, is that some of these watchdogs were actually appointed by Harper himself and have actually been doing their utmost to help him avoid the stupid errors, that he seems almost comically unable or unwilling to avoid.

This time the attack was aimed at the reputation of one of Canada’s most respected judicial institutions and its esteemed Chief Justice, Beverly Mclachlin.  Last week it was reported by Global News’ Laura Stone that the PMO had allegedly advised Marc Nadon to step down as a Federal Court Justice in order to return to the Quebec Bar, so that he would be eligible to sit on the Supreme Court as a representative of the province, as is required by the Supreme Court of Canada Act.  But Nadon refused, perhaps out of a sense of reverence for the spirit and letter of the law as well as the SCC (something that our Justice Minister and Prime Minister appear to severely lack).  But rather than back down, Attorney General MacKay became even more determined to ram his candidate down the Court’s throat even if it meant changing the Act underhandedly by means of an omnibus budget bill and spending lavish amounts of tax dollars on legal opinions and related fees (see my related column.)  All of which was, of course, done in vain.  The court rejected Nadon on the grounds that he was unfit to pass judgement on a jurisdiction that he had left over 20 years ago and that the attempts to change the law governing the Court were equally invalid as they avoided the difficult constitutional amendment procedure required to change the nature of the Court (starting to see the pattern of constitutional ineptitude yet?).

Subscribing to the Lombardi (“the best defence is a good offence”) school of spin-doctoring, the Prime Minister and his Justice Minister immediately went on the offensive, revealing through a leak from an anonymous Conservative source that Chief Justice Beverly Mclachlin had contacted Mackays office as soon as it was announced that Nadon was their man to replace retiring Justice Rothstein.  They had naturally worried about the legally doomed Supreme Court nominee who was unqualified for the job to which he was being promoted, and wanted to spare the government the bad press that would inevitably follow another defeat at the highest court (something Harper seems to be hell bent on doing a lot lately).  This is nothing new.  As a matter of fact, Supreme Court Justices, especially Chief Justices, have generally had cordial relations with the Prime Minister’s Office and had been consulted informally on all kinds of thorny legal questions in the past.  Until now, that is.

Now we’re expected to believe that the Chief Justice has somehow acted inappropriately by contacting the Justice Minister and when the message didn’t reach him, the office of the Prime Minister.  If anyone dropped the ball in this fiasco, it most certainly isn’t the one person who acted in good faith by discreetly warning the government about the ill-advised move they were making.  No one with even a basic understanding of the constitutional law in Canada is even willing to give the Harper gang the benefit of the doubt at this point, anyway.  Nor should they.  They have one of the most lamentable track records of any federal government in history at the Court.  Perhaps sometimes they have been unfortunate and lost debatable verdicts (e.g. Federal Securities Regulator Case).  But more often than not, they have been the victim of their gross ignorance of basic constitutional doctrine in Canada (Senate Reform, Nadon appointment, etc.) and rather than learn their lesson, they double-down on their mistake and opened-fire on the messenger, with a barrage of insidious rumours and half-baked accusations, in this case directed against Beverly Mclachlin.

The same ridiculous behaviour was on display in the feud between Pierre “Skippy” Poilièvre, Minister of Democratic Reform and the Chief electoral officer, Marc Mayrand, on the debate over the now heavily revised “Fair Elections Act.”  Mayrand had the temerity to testify to the flaws in the C-23, especially regarding the most controversial provisions that would have disenfranchised tens of thousands of voters by eliminating vouching and ID cards, if they had been implemented.

Poilièvre has since abandoned those changes, probably because of the overwhelming push-back the government was getting from federal civil servants like Mayrand and Fraser, not to mention just about everyone else in Ottawa.  But not before giving Mayrand a taste of his trademark venom, by suggesting that the man was out of control and simply interested in money, power and less government oversight of his office.  That is the thanks you get when you warn this government that they have crossed the line and need to change course, or else do great harm to Canadian democracy.  Give me the effective accountability of Mayrand and Mclachlin to the Canadian people over the shocking lack of accountability of the executive, any day.


Other articles by David DesBaillets

Harper unveils new bridge tax for Montreal commuters
Chickens coming home to roost on “open nominations” promise
What’s really behind the silence of Harper on the trial of Fahmy in Egypt
Harper has a bad day in court

Follow David DesBaillets on twitter @DDesBaillets


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