Stephen Harper weighs in on spat with Chief Justice Beverley McLachlin

Prime Minister Stephen Harper says he would never talk to the chief justice of the Supreme Court about a case that is before the courts or might be before the courts. Meanwhile, Chief Justice Beverley McLachlin fires back that she never tried to do so.

McLachlin also issues response to suggestions she tried to call PM

Prime Minister Stephen Harper said Friday he would 'never' have contemplated speaking to Chief Justice Beverley McLachlin about a possible appointment to the court. (Dave Chidley/Canadian Press)

Prime Minister Stephen Harper says it would have been inappropriate for him to speak to the chief justice of the Supreme Court of Canada about whether a Federal Court judge from Quebec could be appointed.

"There's been some suggestion that rather than seek outside legal experts, I should have talked to the judges themselves. Let me just be very clear that I would never do that," Harper said at a news conference Friday.

"I think the suggestion ... that if people thought that the prime minister, other ministers of the government were consulting judges on cases before them, or even worse consulting judges on cases that might come 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." 
Beverly McLachlin, chief justice of the Supreme Court of Canada, says it is customary for chief justices to be consulted during the process of appointing new judges to the court. (Fred Chartrand/ Canadian Press)

This is the latest salvo in a growing discord between the Prime Minister's Office and Chief Justice Beverley McLachlin. 

The PMO late Thursday suggested that the chief justice of the Supreme Court tried inappropriately to intervene in the process to appoint Justice Marc Nadon, even though her advice came before Nadon's appointment was announced and ultimately would have saved the government an embarrassing defeat.

Chief justice responds

But in response to Harper, McLachlin fired back with a written statement from her office Friday.

"At no time was there any communication between Chief Justice McLachlin and the government regarding any case before the courts," a spokesperson from her office said in the statement.

Spokesman Owen Rees goes on to spell out a timeline of the events last summer, long before Nadon's appointment was announced, that included her communicating the general needs of the court to the government as Ottawa began to consider potential appointees to replace retired Justice Morris Fish.

She also spoke to Justice Minister Peter MacKay and he notes that someone from her office spoke to the prime minister's chief of staff, Ray Novak, to flag a "potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court."

Last month, the court issued an opinion that, constitutionally, Nadon was not eligible to represent Quebec because he had been a Federal Court judge in Ottawa for the past 20 years, and was not a sitting Quebec superior or appeals court judge, nor a current member of the Quebec bar.

Harper 'surprised' by Nadon decision

The prime minister has consistently expressed surprise at that decision and Friday reiterated why.

"I should mention that this had never come to our attention before. It had not come to our attention previous times in our history when judges had been appointed from the Federal Court, nor had it come to this government's attention when we had in fact appointed justices from Quebec to the Supreme Court," said Harper.

"When that issue was raised, I did what was the appropriate thing. I sought legal advice from experts, both legal experts within the Government of Canada and constitutional and legal experts outside of the Government of Canada."

McLachlin is quoted in the statement Friday, again addressing the innuendo that she tried to interfere and to what the government knew and when.

“Given the potential impact on the court, I wished to ensure that the government was aware of the eligibility issue. At no time did I express any opinion as to the merits of the eligibility issue. 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.”

In fact, a former minister of justice, Liberal MP Irwin Cotler, has indicated that he had occasion to consult on court appointments with the chief justice.

In a speech to a committee reviewing the appointments of Louise Charron and Rosalie Abella in 2004, Cotler, who was then minister of justice, said, "Although my discussions were confidential, I can tell you that some of the consultees were particularly well-placed to provide certain types of input — for example, the chief justice of Canada on the expertise required for the court."

'A 2nd-class citizen'

Speaking at an event at Fanshawe College in London, Ont., Harper, in French, said the Supreme Court has decided that a Quebec judge from a Federal Court is in fact a second-class citizen.

He also said, in French, that his government has appointed federal judges to the Supreme Court, and two years ago appointed a judge from Quebec (Justice Richard Wagner).

But he did not say his government had ever, in the past, appointed a Federal Court judge to represent Quebec, which has special rules about judicial eligibility on the top court. 

In the Supreme Court's 139-year history, a Federal Court judge has never been appointed to represent Quebec, although several Federal Court judges from other provinces have been appointed.

Normand Sabourin of the Canadian Judicial Council told CBC News it's the "common practice" for chief justices to consult with ministers of justice.

"It's their duty to flag issues from time to time and to give their own views about the better administration of justice," he said.

At Fanshawe College, Harper told reporters, as he has said before, he doesn't agree with the Supreme Court's decision about Nadon, although he did concur with the minority report written by the one dissenting judge in the 6-1 decision – Justice Michael Moldaver.

Moldaver was appointed by Harper. So were the majority of the judges currently sitting on the highest court, although not McLachlin, who was appointed by former prime minister Brian Mulroney in 1989.

"We all know they [the Conservative government] don't like judges," NDP justice critic Françoise Boivin told reporters Friday in the foyer of the House of Commons.

"So now we know they don't like the judges they named themselves."