June 20, 2014
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A Canadian controversy broke out into the open in May this year with a series of unprecedented public statements made by the Prime Minister, the Justice Minister and the Chief Justice of Supreme Court of Canada.

The statements followed the Supreme Court’s ruling on Justice Nadon’s ineligibility for appointment to the Court, and inappropriately called the integrity of the Chief Justice into question, raising an outcry from the legal community. The outcry was due to potential impact the statements could have had on the confidence of Canadians in their legal system, highlighting the importance of judicial independence as well as respectful communications between the judicial and executive branches of government.

Justice Nadon’s Appointment

Justice Marc Nadon, a judge of the Federal Court of Appeal, and formerly a member of the Quebec bar, was launched into the middle of controversy over his appointment to the Supreme Court of Canada last October. He stepped aside from his duties at the Court just five days after Prime Minister Harper announced his appointment, following a legal challenge brought by Toronto lawyer Rocco Galati before the Federal Court of Appeal.

In response, the government referred two questions to the Supreme Court in Reference re Supreme Court Act, ss. 5 and 6 regarding eligibility requirements for appointment to the Court. The questions included:

  1. Can a person who was, at any time, an advocate of at least 10 years standing at the Quebec Bar be appointed to the Supreme Court as a member from Quebec under sections 5 and 6 of the Supreme Court Act?
  2. Can Parliament acting alone enact legislation that enables a person who is or previously has been an advocate of at least 10 years standing at the bar of a province to be appointed?

To clarify the questions, section 5 of the Act requires that a person appointed to the Court must be or have been a judge of a superior court of a province or an advocate of at least 10 years standing at a provincial bar. Section 6 requires that at least three of the nine judges appointed be from the Court of Appeal or Superior Court of Quebec, or from among the advocates of the province. These provisions are known to raise eligibility issues for Federal Court judges seeking appointment to the Supreme Court. As part of question 2, the government also asked if it could enact two clauses of the Economic Action Plan 2013 Act, No. 2, which made clear that a former member of the Quebec bar was eligible for appointment under sections 5 and 6 of the Supreme Court Act.

The Supreme Court’s decision on the reference was released in March, 2014, and was to be the latest in an apparent string of frustrating defeats for the government, when question 1 and most of question 2, were answered in the negative. Any change to the composition of the Supreme Court or eligibility requirements could only be made with unanimous consent of Parliament and the provinces, and changes to other essential features required consent of at least seven provinces, representing half the population of all provinces. This meant that Justice Nadon was not eligible for appointment to the Supreme Court, and the tools to remedy the situation were outside the government’s immediate reach.

Unprecedented Public Statements

The series of events leading to the public statements from the Chief Justice, the Prime Minister’s Office and the Minister of Justice, appear to have begun with preparations for an article by columnist John Ivison, which was published in the National Post on May 1, 2014. The article highlighted frustrations brewing within the government over a number of recent high-profile losses at the Supreme Court, including the decisions on Justice Nadon’s appointment and senate reform. The article also reported rumours of allegations that the Chief Justice of Canada, Beverley McLachlin, was ‘lobbying’ against Justice Nadon’s appointment.

The office of Chief Justice Beverley McLachlin released a rare public statement following the article on May 2, 2014, making it clear that, ‘at no time was there any communication between Chief Justice McLachlin and the government regarding any case before the courts.

The statement outlined that on April 22, 2013, the Chief Justice met with the Prime Minister to give him Justice Fish’s retirement letter, and as is customary they briefly discussed the needs of the Supreme Court of Canada (‘SCC’). On July 29th as part of the usual process, the Chief Justice met with the Parliamentary committee on the appointment of Justice Fish’s successor, providing her views on the needs of the Supreme Court. On July 31st, the Chief Justice’s office called Minister of Justice, Peter MacKay’s office and the Chief Justice spoke with Mr. McKay to flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the SCC later the same day. The Chief Justice’s office also called the Prime Minister Harper’s Chief of Staff, Mr. Novak, to flag the issue and make preliminary inquiries to set up a call or meeting with the Prime Minister, but ultimately the Chief Justice decided not to pursue a call or meeting.

The Chief Justice went on to state that, ‘given the potential impact on the Court, I wished to ensure 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.

Later on the same day, the Prime Minister’s Office (‘PMO’) responded, releasing a statement that,

Neither the Prime Minister nor the Minister of Justice would ever call a sitting judge on a matter that is or may be before the court. The Chief Justice initiated the call to the Minister of Justice.

After the Minister received her call he advised the Prime Minister that given the subject she wished to raise, taking a phone call from the Chief Justice would be inadvisable and inappropriate. The Prime Minister agreed and did not take her call.

According to reports in the Globe and Mail and elsewhere, Justice Minister Mr. McKay repeated the allegations in the House of Commons on May 5th following a question from New Democratic Party Leader Thomas Mulcair, stating

my office was contacted by the office of the Chief Justice. After I spoke with her on that call I was of the considered opinion that the Prime Minister did not need to take her call. Neither the Prime Minister nor I would ever consider calling a judge where that matter is or could be before the court of competent jurisdiction.

He went on to note on May 7th that ‘this entire subject began when a Supreme Court spokesperson released a statement to the press, to which we felt it was incumbent to respond and clarify.

Some degree of divergence is expected between the judicial and executive branches of government in order to ensure accountability. Historically however, this has generally taken place in a more courteous or at least less conspicuous manner. In that context, the volley of public statements between the Prime Minister and the Chief Justice appears to be without precedent in Canadai. While some observers have questioned whether the Chief Justice should have released a public statement, potentially fueling the controversy, the allegations set out in Ivison’s article were simply too potentially damaging to the judicial integrity of the Supreme Court and its Chief Justice to ignore.

An Outcry from the Legal Community

There has been an outpouring of support from the Canadian and international legal communities for Chief Justice McLachin. She is both the country’s first female and longest standing Chief Justice. She is known to exemplify integrity, and has dedicated a large part of her career to building public confidence in the Canadian justice system. This commitment is reflected in her forward to the Canadian Judicial Council’s Ethical Principles for Judges, where she notes, ‘the ability of Canada’s legal system to function effectively and to deliver the kind of justice that Canadians need and deserve depends in large part on the ethical standards of our judges.

Countless statements were made in her defence, some of which are highlighted below.

  • The Law Society of British Columbia expressed concerns in a news release on May 6, 2014 about the statements, noting that ‘judges, not being free to defend themselves, are entitled to receive the support of the legal profession against unjust criticism and complaint.”
  • Several former presidents of the Canadian Bar Association (‘CBA’) united to make a statement on May 6, 2014. In it, they called on the Prime Minister to remedy the situation and voiced their opinion that the allegations demonstrated ‘a disrespect of the executive branch for the judicial branch of our constitutional democracy, and for the Chief Justice of Canada as the most senior member of the Canadian judiciary.
  • The Advocate’s Society also issued an open letter to the Prime Minister regarding the comments, stating, ‘in our view it is important that the people of Canada understand that the Chief Justice acted entirely appropriately and that they can have full confidence in the integrity of Canada’s top judge.
  • The Council of Canadian Law Deans expressed grave concerns in a statement released through McGill University, voicing that ‘there are very few issues on which all members of the legal community spontaneously agree. The unanimous condemnation of the government’s statements regarding Chief Justice McLachlin reflects our shared sentiment that this is an unfortunate and unprecedented attack on one of the most important institutions of Canada’s constitutional democracy.
  • The American College of Trial Lawyers, of which the Chief Justice of Canada is an honourary member, sent a letter to the Chief Justice and issued a press release on May 13, 2014 stating, ‘we are deeply concerned about what we believe to be unjustified criticism of Chief Justice McLachlin relating to steps she took on behalf of the Supreme Court of Canada in the context of the anticipated appointment process of a new Justice from the Province of Quebec to the Supreme Court of Canada. The facts show that her actions were entirely proper and totally within the duties and responsibilities of her judicial office, and to suggest otherwise is an unwarranted attack upon the judiciary.
  • Finally, a group of Canadian lawyers and legal academics also sent a letter calling on the International Commission of Jurists (ICJ) to investigate the matter. Based in Geneva, the ICJ’s mandate is to advance the independence of the judiciary, legal profession and administration of justice in full compliance with standards of international law. In the letter the group stated, “we fear that the unprecedented statements of the Prime Minister and Minister of Justice and Attorney General may seriously undermine judicial independence in Canada… Our system can operate effectively only if each component is respectful and courteous in its relations with the others.

The extent of this outcry reflects the critical importance of judicial independence, as well as the integrity of the Supreme Court appointment process to the general public and to legal communities in Canada and worldwide. The Chief Justice’s supporters are united in their view that her actions in relation to Justice Nadon’s appointment were consistent with her administrative duties as Chief Justice and were not related to a matter before the court. Bringing eligibility issues to the executive branch’s attention was in line with the types of discussions that would historically be expected in relation to the judicial appointment process.ii

The Importance of Judicial Independence

The independence of the judiciary from the executive and legislative branches of government is guaranteed in Canada by the Constitution, and is essential to public confidence in our justice systemiii. According to the Canadian Bar Association (CBA), ‘judicial independence protects citizens from the abuse of state power. It is also an integral component of federalism, protecting one level of government from encroachment into its jurisdiction by another.iv Nowhere is judicial independence more important than for the Supreme Court, which is the highest court of appeal from all other Canadian courts.

The Canadian Judicial Council’s Ethical Principles for Judges,, provide judges with guidance on difficult ethical and professional issues, and lie at the source of the statements made by the Chief Justice and the Prime Minister. The principles call for judges to promote high standards of conduct on the bench. Of particular relevance to the recent statements, the Principles stipulate that judges must exercise their judicial functions independently, and reject any attempts to influence their decisions in any matter before the court outside of the proper process of Court. This means that judges must also take care that any communications they initiate not raise reasonable concerns about the impartiality of their decisions.

The judicial appointment process should also preserve the integrity of the Supreme Court and promote judicial independence. In March, 2004, the Canadian Bar Association (CBA) released a report on the Supreme Court of Canada Appointment Process, which contained a proposal to former Prime Minister Paul Martin, regarding the integrity of the appointment process for Supreme Court Justices. In order to promote judicial independence, the proposal called for a transparent and objective selection process for judges based on merit, which was free from political influence. It also recommended that appointments be made following a well-established advisory process, which included the Chief Justice.

The Appointment of Justice Clément Gascon

The Prime Minister has moved quickly following the Supreme Court’s Decision on Justice Nadon’s appointment in his second attempt to fill the Supreme Court’s empty seat. A seat that was previously occupied by Justice Morris Fish who retired last summer after serving over 14 years on the Supreme Court. The Prime Minister announced the appointment of Justice Clément Gascon to the Supreme Court in early June. The appointment brings the Supreme Court to its full complement of judges, and was made following consultations with the Government of Quebec and the province’s legal community. Justice Gascon was sworn in on June 12, 2014.

Justice Gascon is an experienced candidate specializing in civil and commercial litigation who was called to the Barreau du Québec in 1992. He has been a judge on the Quebec Court of Appeal since 2012, and served as a Judge of the Quebec Superior Court since 2002. Prior to that time he was a lawyer for 21 years with Montreal-based law firm Heenan Blaikie, which wound up its operations in February 2014.

The government chose not to require that Justice Gaston appear before a special parliamentary committee prior to his appointment, as has been the process for nominees since its introduction in 2004 during Prime Minister Paul Martin’s term of office. The reason for this decision is unclear. The appointment appears to have been well received by the legal community, however. The most significant concern expressed by critics to date reflecting a hope that the Prime Minister would have chosen to appoint a woman in order to increase the gender equity on the bench, with only three women, including Justice McLachlin currently sitting. Justice Gascon has been described by members of the community as ‘smart diligent and hard-working‘, as well as a ‘brilliant generalist.‘ Good qualities for a member of Canada’s highest court. He was sworn in on June 12th by Chief Justice McLachlin.

The government will also have another seat on Supreme Court to fill this year, and although the process of appointment to be used remains unclear, perhaps this time a new female justice will be appointed. In late May, Chief Justice McLachlin announced that another Supreme Court Judge, Justice Louis LeBel would retire on November 30, 2014, after serving over 14 years on the Supreme Court. Justice LeBel was also one of the judges appointed from Quebec.

And so, despite widespread outcry from the public and the legal community, the government’s comments in relation to Chief Justice McLachlin remain outstanding, and have not been withdrawn, nor does it seem likely as time passes that they will be. Interestingly, Justice Gascon’s appointment announcement included the following statement, ‘the independence of the Court, the quality of its work and the esteem in which it is held contribute significantly as foundations for a secure, strong and democratic country founded on the rule of law.‘ This may be as close to an apology or withdrawal of the statements as we get, closing the door, at least for now, on the public debate.


iMichael Enrught, ‘Harper v. McLachlin is a Supreme spat’, The Sunday Edition (May 18, 2014) Online: http://www.cbc.ca/thesundayedition/essays/2014/05/18/in-defence-of-beverley-mclachlin/. See also Cristin Schmitz, ‘Tension grows following PMO ‘political smear’ The Lawyer’s Weekly (May 26, 2014) Online: http://www.lawyersweekly.ca/index.php?section=article&articleid=2138
iiQuote by Eugene Meehan in Glenn Kauth, ‘Bar alarmed at ‘extraordinary’ situation between Harper, McLachlin’ The Lawyer’s Weekly (May 5, 2014) Online: http://www.canadianlawyermag.com/legalfeeds/2070/bar-alarmed-at-extraordinary-situation-between-harper-mclachlin.html
iiiThe Supreme Court of Canada Website, http://www.scc-csc.gc.ca/court-cour/sys-eng.aspx
ivCanadian Bar Association ‘Supreme Court of Canada Appointment Process’ (March 2004) Online: https://www.cba.org/cba/submissions/pdf/04-10-03-eng.pdf

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.