Harper v. McLachlin is a Supreme spat

If you want to learn about the last time a political leader openly fought a Chief Justice of Canada, you have to go back aways. In 1794, William Osgoode was Chief Justice of what was then Lower Canada, having already served as Chief of Upper Canada.

He got into a row with the governor, a man named Robert Prescott. The fight had something to do with the way land grants were being handed out in the region. Prescott was recalled. But Osgoode got into the same fight with the new man, Governor Robert Milnes. Osgoode later apparently thought the hell with it, because he returned to England in 1801. He died there in 1824 and is remembered to this day as the man for whom Osgoode Hall Law School is named.

Political leaders have often come into conflict with the judicial branch of the government, but they don't usually break out in the open. Stephen Harper's veiled suggestion that Beverley McLachlin, Chief Justice of Canada, did something unseemly in placing a call to his Minister of Justice, is without modern precedent.

Franklin Roosevelt fought openly with his Chief Justice Charles Evans Hughes in 1935, and Barack Obama and US Chief Justice John Roberts have clashed in public. Chief Justice McLachlin's sin, according to Mr. Harper and Peter Mackay, the Justice Minister, is that she called Mr. Mackay's office to flag a potential problem with a possible appointment to the court, Judge Marc Nadon. This was months before the matter came up. There was nothing pending before the court which might have been a problem. McLachlin was doing what she was supposed to do - raising a potential constitutional issue.

The comments of Mr. Mackay and Mr. Harper have set off a firestorm of legalistic outrage across the country and indeed around the world. The American College of Trial Lawyers has weighed in with what it calls unjustified criticism of the Chief Justice.

Quote: "The facts show that her actions were entirely proper and within the duties and responsibilities of her judicial office." The BC Trial Lawyers' Association calls the prime minister's criticism "baseless and smacks of political bullying." Eleven former presidents of the Canadian Bar Association and the Council of Canadian Law Deans, have demanded Mr. Harper withdraw his suggestion that the Chief acted improperly. This past week more than 650 lawyers, in an open letter, criticized Mr. Harper and called upon him to withdraw his comments.

A number of lawyers have asked the International Commission of Jurists in Geneva to investigate what they call this unfounded criticism of the Chief Justice. The lawyers are also offended that the Prime Minister referred to her as "a sitting judge" -- which is something like calling Sidney Crosby "a hockey player." In fact, the Chief Justice is among other things, the Deputy Governor-General

I have interviewed Madam Chief Justice McLachlin a number of times, and can testify that she is the living embodiment of judicial propriety and decorum. She is the soul of discretion and refuses to talk even abstractly about any case which might confront her court. In fact getting her to say anything even mildly tendentious is like trying to get blood out of a Rice Krispie Square.

Because of her position, the Chief Justice is constrained from saying too much about the controversy. Because of his personality, the Prime Minister is not planning to say very much either.

Which means this important issue, this open sore, between the judiciary and the executive will continue to fester.