2nd Session, 41st Parliament,
Volume 149, Issue 56
Tuesday, May 6, 2014
The Honourable Noël A. Kinsella, Speaker
Prime Minister’s Office—Chief Justice of the Supreme Court—Supreme Court Appointments
Hon. James S. Cowan (Leader of the Opposition): My question is about a very serious matter and is for the Leader of the Government in the Senate. So that he would not be surprised by my line of questions, I gave his office notice this morning that I would be asking about this issue today.
My question concerns the comments that were made in recent days about the alleged misconduct by the Chief Justice of Canada, the Right Honourable Beverley McLachlin.
I think it would be helpful to follow these questions and the answers if I set out the chronology of events.
On April 22 of last year, Supreme Court Justice Fish announced that he was going to retire from the court effective the end of August 2013.
That day, the Chief Justice met with Prime Minister Harper as a courtesy to give him Justice Fish’s retirement letter. As is customary, they briefly discussed the needs of the court.
On June 11, a month and a half later, then-Justice Minister Rob Nicholson issued a press release outlining the process to choose a successor to Justice Fish. That press release referred to consultation with the Chief Justice: First, the list of qualified candidates would be put forward by the Minister of Justice “in consultation with the Prime Minister, the Chief Justice of Canada” and several other leading members of the legal and judicial communities in Canada.
The names of those qualified candidates were then to be given to a Selection Panel of five MPs. Notably, the Justice Minister stated in his press release, “The members of the Selection Panel will also consult with the Chief Justice of Canada.”
Indeed, on July 29, the Chief Justice met with the Selection Panel and, according to a statement issued by the Chief Justice last week, “provided the committee with her views on the needs of the Supreme Court.”
Two days later, on July 31, her office called the Minister of Justice’s office and the Prime Minister’s chief of staff in order, again reading from the Chief Justice’s statement:
… to flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court. Later that day, the Chief Justice spoke with the Minister of Justice, Mr. MacKay, to flag the potential issue. The Chief Justice’s office also made 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 had no other contact with the government on this issue.
Of course, in July, no choice of a successor to Justice Fish had yet been made — the Selection Panel was considering a list of names provided by the Minister of Justice. Indeed, it wasn’t until September 30 — two months later — that Prime Minister Harper announced the nomination of Justice Marc Nadon. And, of course, the Federal Court application by Mr. Rocco Galati was only filed on October 7, and the government’s reference to the Supreme Court about the appointment was made on October 22.
Leader, in view of these facts, will you identify precisely how the Chief Justice acted improperly in these circumstances?
Hon. Claude Carignan (Leader of the Government): I thank the honourable senator for his question. As the Prime Minister indicated, after being consulted on the matter and having learned of the possibility that there would be a legal debate on the eligibility of judges of the Federal Court to the Supreme Court, the Prime Minister acted appropriately and asked for expert legal advice. He asked for advice from legal experts in the Government of Canada and constitutional and legal experts outside of Canada as well. Anyone who claims that the Prime Minister did not ask for advice is wrong.
As for the telephone call, people would be outraged if they thought that the Prime Minister or any other government minister were consulting judges about cases before them or — even worse — consulting judges on cases that might come before them, before the judges themselves had the opportunity to hear all of the evidence.
Judges must make their own decisions based on the information they have.
Senator Cowan: I went through the chronology of events very carefully, Senator Carignan, because those dates are very significant.
At the point in time when there was consultation, and you remember that the consultation was not at the instance of the Chief Justice, it was at the instance, set out in the press release issued by the Minister of Justice, in accordance with the procedure established by Prime Minister Harper himself.
So the question is: Exactly what was the impropriety that Prime Minister Harper has accused Chief Justice McLachlin of committing?
Senator Carignan: The honourable senator should be careful about making inferences or drawing conclusions in his questions. The Prime Minister was very clear, as was the Minister of Justice. As Minister MacKay clearly stated, the Chief Justice was consulted about vacant seats at the Supreme Court of Canada. His office then received a call from the Chief Justice. After speaking with her, he decided that it was not necessary for the Prime Minister to take the call. The Prime Minister and the Minister of Justice would never call a sitting judge to discuss a case that could be brought before the court that same judge presides over.
Senator Cowan: The suggestion of a discussion took place in July. There was no court case at that point. There was no suggestion of legal proceedings taken by anyone until Mr. Galati’s action in October and then the Quebec government suggested that they would take action as well. That’s two months after this event that you speak about.
What was the impropriety? What is it that Chief Justice McLachlin did wrong in your view?
Senator Carignan: As I said, the Senator is drawing his own conclusions in his question.
It is important to point out that both the Minister of Justice and the Prime Minister have reiterated that people would be outraged if they thought that the Prime Minister or any other government minister were consulting judges about cases before them or — even worse — consulting judges on cases that might come before them, before the judges themselves had the opportunity to hear all of the evidence. Both have indicated that judges must make their own decisions based on the evidence before them.
Senator Cowan: Senator Carignan, the point of the matter is that there was no suggested court case at the time that these conversations were supposed to have taken place. That was months before any action was taken. It was long before the nomination of Justice Nadon was even made.
Let me try it a different way. If, as you suggest, and as the Minister of Justice and the Prime Minister have suggested, there was this impropriety on the part of the Chief Justice and it would have been improper for the Prime Minister to have spoken to the Chief Justice at that time — and we’re talking about July of 2013 — if it was so important, if it was so egregious, why did it take until last week before the Prime Minister’s Office made a statement about this issue?
Senator Carignan: Senator Cowan, as Minister MacKay has said, the Supreme Court justice was consulted about the vacancies in the Supreme Court of Canada. Minister MacKay’s office received a call from the Chief Justice. After speaking with her, he decided that it was not necessary for the Prime Minister to take her call, and neither the Prime Minister nor the Minister of Justice would ever call a sitting judge about a matter that is or could be before their court.
Senator Cowan: My question, Senator Carignan, was if this behaviour that the Prime Minister now finds so objectionable took place at the end of July 2013, why didn’t he say something about it then? Why was it only last week that he made a statement about this? What is the explanation for the delay? Why was it not serious enough to make a public statement about it in July of 2013 but so outrageous and so pressing that he chose to make a statement or have his office make a statement last week? Why not then and why now?
Senator Carignan: Senator, sometimes, news evolves or puts more emphasis on some points than on others. One thing is certain: the Department of Justice was aware of the eligibility issue. It asked for an outside legal opinion from a former Supreme Court justice on whether Federal Court justices can be appointed to the Supreme Court of Canada. The legal opinion was reviewed and received the support of another former Supreme Court justice, who is also an eminent professor and expert in constitutional law, and that opinion was made public. All the legal experts agreed that there was no basis for the Supreme Court’s final opinion and their own view was similar to Justice Moldaver’s dissenting opinion.
As the Prime Minister said, we will respect both the letter and the spirit of the decision, and we will act quickly to ensure that all the seats on the Supreme Court are filled.
Senator Cowan: The Prime Minister was certainly entitled to seek the advice of former justices of the Supreme Court of Canada and other experts. He was certainly entitled to do that; I don’t question that. My question again is, if he found the action of the Chief Justice of the Supreme Court so objectionable, why didn’t he do something about it last July? Why did he wait till last week? That’s the question I asked and that’s the one I would like an answer for.
Senator Carignan: As I explained, Minister MacKay received the call from the Chief Justice and he spoke to her. The minister decided it was not necessary for the Prime Minister to take the call.
Senator Cowan: But the question, Senator Carignan, is this: Let’s assume that that was correct and that it was improper for that call to be made and that the advice Minister MacKay gave to the Prime Minister was correct. Why didn’t he say something about it then? Why wait till last week?
Senator Carignan: As I already explained, Minister MacKay received the call from the Chief Justice and he spoke to her. The minister decided it was not necessary for the Prime Minister to take the call, period.
Senator Cowan: I’m not going to get anywhere with that question, I guess. I’ll try another supplementary.
In his opening statement to the ad hoc committee of members of the other place on the appointment of Supreme Court justices, Justice Minister MacKay referred to his own and his predecessor’s — that would be former Justice Minister Nicholson’s — consultations “with senior members of the Canadian judiciary, including the Chief Justice of Canada, all with a mind to identifying a pool of qualified candidates for appointment to the Supreme Court of Canada.” He also said, “The panel members,” that is the Selection Panel of MPs, “also consulted extensively with members of the judiciary and the legal community, including the Chief Justice of Canada.”
That was October 2 of 2013, two months after this exchange that he had with Chief Justice McLachlin. So if there was a problem, why did the Minister of Justice cite the Chief Justice’s involvement in the process as something lending credibility to that process? Why would he do that?
Senator Carignan: As I said, there was an all-party committee process. The Chief Justice was consulted on the needs of the Supreme Court. After that consultation, Minister MacKay’s office received a call from the Chief Justice and he decided it was not necessary for the Prime Minister to take the call.
Senator Cowan: The Chief Justice has stated: “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.”
Is the government saying that the Chief Justice of Canada should not have alerted them to this serious eligibility issue as they were drawing up the list of qualified candidates to replace Justice Fish? In fact, since she was being consulted, according to the Justice Minister, specifically to assist in “identifying a pool of qualified candidates” — that is the Justice Minister’s wording — wouldn’t it be your expectation, wouldn’t you expect that it would be her duty to advise on what could or could not make a candidate qualify? Wouldn’t that be logical? Wouldn’t you expect that when the Chief Justice is being consulted for that purpose to identify what the Justice Minister himself described as “identifying a pool of qualified candidates”?
Those are the Justice Minister’s words, “a pool of qualified candidates.” Wouldn’t you expect, wouldn’t it be reasonable that a Chief Justice consulted on that basis would want to raise an issue, would be expected to raise an issue as to the qualifications of potential applicants or potential candidates?
Senator Carignan: The Chief Justice was consulted about the vacancy on the Supreme Court and the needs of the Supreme Court. After this consultation, Minister MacKay’s office received a call from the Chief Justice and, as I explained, he decided it was not necessary for the Prime Minister to take the call.
Senator Cowan: But the words that the Justice Minister used were that one of the purposes of the consultation was to identify a pool of qualified candidates. If the Chief Justice had concerns about the eligibility of persons who served on the Federal Court of Canada, surely it was her responsibility to draw that concern to the attention of the Justice Minister; wouldn’t you agree with that?
Senator Carignan: The Chief Justice of the Supreme Court is consulted regarding vacancies and the needs of the court.
Senator Cowan: Where we are now is that we have a former Minister of Justice, 11 former Presidents of the Canadian Bar Association and many other eminent Canadians who have expressed deep concern about the suggestion that the Chief Justice somehow acted inappropriately. I’m sure you would agree with me that a suggestion of impropriety on the part of the Chief Justice of Canada — the highest judge in our system — can seriously erode confidence not only in the Chief Justice, who I point out is the longest serving Chief Justice in Canadian history, but indeed in our justice system itself.
Will you take this opportunity, Senator Carignan, as Leader of the Government in the Senate, to clearly state for the record that the Chief Justice did not conduct herself inappropriately in any way in relation to these proceedings?
Senator Carignan: Senator, you would agree that if people thought that the Prime Minister or any government minister was consulting a judge about a case the judge was deliberating or, worse, was consulting a judge about a case that might come before that judge’s court, before the judge had the chance to hear all the evidence, they would be scandalized.
Senator Cowan: They are scandalized.
Hon. Jean-Claude Rivest: In this whole unfortunate mess, with the government’s completely inappropriate behaviour, the fact remains that Quebec’s constitutional rights have not been respected for months.
For months the Supreme Court of Canada has been hearing cases, deliberating and making decisions with only two Quebec judges on the Supreme Court when there should be three. My question is simple: When will the government appoint the third Quebec judge?
Senator Carignan: As the Prime Minister said, we will respect the letter and the spirit of the decision and will act quickly to ensure that every seat on the Supreme Court is filled.
Senator Rivest: You will let us know.
Senator Carignan: As soon as possible.
Hon. Wilfred P. Moore: Honourable senators, my question is also for the Leader of the Government in the Senate and a follow- up to Senator Cowan’s questions. I have been trying to figure out, trying to rationalize what happened here, and the months of delay in comments from the Prime Minister.
He didn’t want to talk about it back in July. I have to wonder, had he already made up his mind? Did he already decide that Justice Nadon was going to be his appointment and he did not want to talk to anybody about it because there could be questions raised; is that possible?
Senator Carignan: The Prime Minister was clear. The Minister of Justice was also clear that when he learned that there might be a legal debate on the eligibility of Federal Court judges in general for the Supreme Court, the Prime Minister acted appropriately and asked for legal advice from experts, advice from legal experts within the Government of Canada and constitutional and legal experts in Canada. Anyone claiming that we did not seek expert advice is wrong. All the experts consulted said they believed that Federal Court judges were absolutely eligible for appointment to the Supreme Court. At that point, the question was on the eligibility of Federal Court judges. What is more, as the Prime Minister said, the opposition proposed candidates from the Federal Court. Clearly, the opposition was not opposed to appointing a member of the Federal Court.
Hon. David P. Smith: Honourable senators, after the appointment was announced, the National Assembly of Quebec — and given the intense political divisions in there — passed a motion unanimously supported by every single member of that legislature, of all the parties, saying that that appointment did not comply with the provisions of the Supreme Court Act. Every single member of the legislature supported that unanimously. That virtually never happens.
For it to be flagged ahead of time, it better comply with the provisions of the Supreme Court Act, without any reference to a particular name. Isn’t that pretty telling? You say that all the experts consulted. I don’t know of any experts that agree other than the ones that they paid for an opinion.
Senator Carignan: Senator, I don’t know who you know but, to my knowledge, the opposite is true. All the constitutional experts who were consulted, even those who gave their opinion without being consulted by the government directly, said that there was no basis for the position adopted by the court in the end, and their perspective was similar to the dissenting opinion of Justice Moldaver, the constitutional expert, Mr. Hogg, and former Justice Binnie, who, along with others, issued opinions that were published.
Senator Smith, you are a lawyer, and I am sure that when you read the opinion that was released before the challenge, you must have found that there was some common sense to it.
Hon. Joan Fraser (Deputy Leader of the Opposition): Leader, you have repeated several times the Prime Minister’s words shortly after the Supreme Court decision about Justice Nadon, to the effect that the government would respect the letter and the spirit of that decision, which was — it bears repeating — a decision of the Supreme Court of Canada, the highest court in the land. But the tone of your answers on this matter today increasingly suggests to me that you do not respect the letter, let alone the spirit of that decision. Can you please clarify for me whether the government does or does not accept and agree with the considered opinion of the Supreme Court of Canada in this matter?
Senator Carignan: As the Prime Minister said, we are going to respect both the letter and the spirit of the decision and appoint a new judge to fill the vacancy from the new pool of judges, which was reduced by the Supreme Court decision.
Senator Fraser: Yes, but the letter and spirit of that decision were to the effect that there are some general rules for which nomination to any seat on the Supreme Court must be followed. But then in addition, in the very next section of the law, they set out further requirements for judges from Quebec. There is good reason for that as you, a lawyer from Quebec, know. The legal system in Quebec is not the same as it is in the rest of the country. I ask again: Do you respect that decision in both its letter and its spirit?
Senator Carignan: Senator, you will see that, with the appointment that is made — in the coming weeks, I imagine — the Prime Minister will respect both the letter and the spirit of the decision.
Hon. Mobina S. B. Jaffer: Leader, what really upsets me is why did the Prime Minister wait until now? There was an opportunity in July, there was an opportunity in October, and there was yet another opportunity when this matter was being heard by the Supreme Court of Canada. As you and I know as lawyers, from time to time there are judges that we feel have a certain bias and they should not hear the case and we make an application right away at the beginning of the case to say we would like that judge to excuse herself. Why did the government’s lawyer not make that application if the Prime Minister was concerned? Why wait until now?
Senator Carignan: As the Minister of Justice said, he received a call from the Chief Justice and, after speaking with her, he did not feel that the Prime Minister needed to take the call.
Senator Jaffer: Mr. Leader, you are a lawyer; I am a lawyer. There are many lawyers in this place. One rule we learn as soon as we finish law school is that judges in our country are not able to speak out for themselves. Our first duty as lawyers is to protect the integrity of the institution, and the integrity of the Supreme Court of Canada has been challenged. I believe it’s every lawyer’s and every Canadian’s duty to protect that. Today, that integrity has been challenged and I say to you, leader, that it is not appropriate to call on the integrity of the longest-serving Chief Justice, who has done nothing wrong.
Do you accept today that the Chief Justice has done nothing inappropriate?
Senator Carignan: Senator, you are correct. People would be outraged if they found out that the Prime Minister — or any government minister — was consulting judges about cases before them or, even worse, consulting judges on cases that might come before them, before the judges themselves had the opportunity to hear all of the evidence.
Hon. Serge Joyal: Honourable senators, I have listened carefully to the Leader of the Government. He mentioned the opinions provided to the government by the Honourable Justice Binnie, the Honourable Justice Charron and Professor Peter Hogg.
The honourable senator was in this chamber when I spoke during the debate on clauses 370 and 371 of the budget implementation bill. I explained what I thought were the grounds for the unconstitutionality of appointing a Federal Court judge.
I relied on the 1982 constitutional debate to explain that a special status had been recognized for Quebec at the time. That was when the composition of the Supreme Court was enshrined in section 41 of the Constitution and other organic provisions for the Supreme Court were enshrined in section 42. I remember my explanation clearly. I think the Honourable Senator Nolin was here that day.
I pointed out that, as lawyers, if we want to maintain our licences to practice, as you yourselves know, we have to stay current in our knowledge of legislative provisions and participate in ongoing training. A candidate who is not a member of the bar and who cannot readily prove his knowledge of Quebec’s civil law provisions as they exist today would not qualify, to my mind.
There was definitely a major debate in the legal community that prompted the government to do two things: first, it added two provisions to the budget bill to try to clarify the issue; and second, the government itself referred the matter to the Supreme Court of Canada. The court itself did not choose to study the matter.
When we look at the concerns and see where those concerns came from, I think it is clear that the government itself had concerns about the constitutionality of appointing a candidate from the Federal Court.
Dare I say that it might be a good idea as we debate this issue to review the sequence of events so that we can avoid further politicizing the debate and ensure that the Supreme Court, which is made up of the lawyers most qualified to sit on its benches, can continue to hear cases?
Senator Carignan: Senator, as I said earlier, when we found out about the possibility of a legal debate over whether Federal Court judges were eligible for Supreme Court appointments, the Prime Minister acted appropriately and asked the experts for their legal opinion. The possibility of a legal debate led directly to the request for an opinion.