Caught between Harper and a hard place

Op-eds Opinions

Prime Minister Stephen Harper has made many divisive decisions and statements during his tenure in Canada’s highest office; however, his statements this past May regarding the Supreme Court of Canada’s (SCC) chief justice Beverley McLachlin have garnered near-universal criticism.

In a nutshell, Harper tried to fill a vacancy in the Supreme Court with Federal Court of Appeal Justice Marc Nadon. The constitution mandates that of the nine Supreme Court jurists, three must come from Quebec; given that Justice Nadon neither tries cases in Quebec nor is a member of the Quebec bar, his appointment as a Supreme Court of Canada Justice was challenged by a Toronto lawyer before the SCC. In a 6-1 split, the court deemed Justice Nadon’s appointment ineligible in accordance with the law. However, months before the appointment and subsequent chal- lenge, McLachlin notified Justice Minister Peter McKay regarding the legal issues surrounding Nadon’s appointment. Harper has since implied that McLachlin lobbied against Justice Nadon’s appointment, and attempted to influence the Prime Minister’s Office (PMO) on the matter.

So, why has this issue generated so much controversy among journalists, lawyers, and scholars? After all, that Harper could significantly harm McLachlin’s standing within the legal and political communities is unlikely—she is one of the most celebrated jurists in Canadian history. What is concerning is the potential of his statements to inflame existing distrust of the courts in certain social circles by politicizing what is designed to be an impartial institution. Justices don’t belong in the political sphere: the public must be confident that their interests will not be relegated by the courts below governmental goals.

Political theories such legal realism suggest that judges can never be completely free of personal and political biases. Nonetheless, the SCC under Chief Justice McLachlin has an enviable track record of unanimously balancing individual interests with the state’s interests. For example, in Attorney General (Canada) v. Bedford and R. v. Tse, the SCC pointed out the violation of individual rights but also expressly stated the Parliament’s legal right to legislate on the matter, albeit properly. Clearly, the SCC affords a degree of deference to the Parliament so long as the fundamental freedoms are not trampled. However, intimating that the chief justice of Canada’s highest court conducted herself improperly calls into question her judicial integrity and restraint, and, as a result, capacity of the Canadian justice system at large to deliver, tightly reasoned, and impartial opinions.

Harper has, arguably by design, opened a discourse that he can mostly dominate; McLachlin has remained, and will continue, to remain silent. This is a smart move on her part. Engaging with the PMO would call into question the SCC’s impartiality when dealing with the federal government as a litigant. Additionally, Canada’s legal and journalistic community, as well as international legal organizations, have jumped to McLachlin’s defense—any additional comment by her office at this point is largely unnecessary.

McLachlin’s most valuable asset in this show of cowardice is her sterling repute. Surely this is neither the first, nor the last time her resolve has been tested by a politician, full of sound and fury, signifying nothing.