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A crisis in judicial independence

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The recent exchange between the Office of the Chief Justice of Canada and the Prime Minister's Office may be a constitutional crisis in the making. It all began innocuously enough. In the summer of 2013, as part of the usual process to appoint a successor to a retiring Supreme Court judge, Chief Justice Beverley McLachlin met with a parliamentary committee studying a short list of potential nominees. Two days later, the chief justice's office contacted the offices of the justice minister and the prime minister to flag a potential issue about the eligibility of Federal Court judges to fill a Quebec seat on the Supreme Court. Later that day, the chief justice raised that issue in a telephone conversation with Justice Minister Peter MacKay. The chief justice has since made it clear that at no time did she express an opinion on the legal merits of the eligibility issue.

As most Canadians now know, the prime minister decided to appoint Justice Marc Nadon, of the Federal Court of Appeal, to the Quebec seat left vacant by Justice Morris Fish. The appointment was challenged by a Toronto lawyer and the Supreme Court unanimously held that the appointment was contrary to the law governing the composition of Canada's top court. Last Thursday, John Ivison of the National Post reported senior conservatives were "incensed" that the Supreme Court had recently delivered a string of decisions unfavourable to the government. Ivison reported rumours alleging that the chief justice had "lobbied" against Justice Nadon's appointment, rumours denied by the Supreme Court's executive legal officer.

On Thursday evening, the PMO issued a statement that "neither the prime minister nor Mr. MacKay would ever call a sitting judge on a matter that is or may be before the court," inferring the chief justice had acted inappropriately when she contacted the government in the summer of 2013.

However, it is clear from the chronology of events revealed by the chief justice that she did no such thing. Her communications with the parliamentary committee and justice minister preceded the government's decision to nominate Justice Nadon, were limited to raising a possible issue with the legality of appointing a Federal Court judge to a Quebec seat and fell well within her role of advising the government regarding appointments to the court. Mr. Harper's public statements on Friday did not dissipate the impression arising from the PMO's media release that the chief justice had behaved inappropriately.

An independent judiciary is a cornerstone of any democracy. In addition to acting as neutral arbiters of disputes between private individuals, judges are charged with ensuring legislatures, governments and their officials act according to our laws and our Constitution. In doing so, they may make courageous or unpopular decisions with social, economic and political dimensions that may attract, as Ivison has reported, the ire of the government in power.

That is why it is crucial they be protected and they be perceived by Canadians to be protected from pressures or threats of reprimand or retaliation by anyone. If judges are not protected from the threat of outside interference, including the prospect of their integrity or judgment being questioned by the government through innuendo, Canadians can have no confidence that their judges can decide the cases that come before them impartially, according only to the facts and the law.

And if the chief justice of Canada is subjected, unchallenged, to such outside pressure, can we expect any judge to be immune?

Canadians' confidence in the fairness and neutrality of our system of justice is at stake.

This crisis arises from the latest in a series of actions by the Harper government that risk undermining the confidence of Canadians in key aspects of our democracy. Just last month, Minister for Democratic Reform Pierre Poilievre insinuated that Chief Electoral Officer Marc Mayrand was partisan or self-interested in his negative assessment of the government's proposed changes to the Canada Elections Act. The chief electoral officer is responsible for ensuring citizens can exercise their right to vote, candidates and parties compete for votes on a level playing field and elections are administered through a process free from partisan bias or the appearance of it.

By design, Parliament made the chief electoral officer an officer of Parliament, answerable through our elected representatives to the people of Canada, rather than a government employee. Why would anyone depict him, without supporting evidence, as partisan or self-interested? Could it be a way for the government to delegitimize him, undermine the public's trust in the neutrality of his office and, perhaps, justify its proposal to strip his office of the powers he presently uses to uphold the integrity of our electoral system and promote democracy in Canada?

Where a principle so fundamental to our democracy as the independence of the judiciary is threatened, the independent legal profession, elected representatives of every political stripe and ordinary Canadians must leap to its defence. There is too much at stake to stay on the sidelines.

Canadians must respond quickly and strongly to this irresponsible display of partisanship and defend against the corrosive effects such continued behaviour, left unchecked, will inevitably have on democracy in our country.

 

Gerald Heckman is a law professor at the University of Manitoba

Republished from the Winnipeg Free Press print edition May 3, 2014 A15

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