This morning, the Chief Justice of Canada responded to a statement from the Prime Minister’s Office that, last summer, she initiated a call to the Minister of Justice regarding the nomination of Justice Marc Nadon. Media reports have suggested the eruption of a very public battle of statements. As lawyers, we respect and honour our Chief Justice, and take her at her word. As I read her office’s release, I wondered: What could have possessed her?
The press release issued by the Chief Justice’s office described the July 31, 2013, interaction with the Minister thus:
On July 31, 2013, the Chief Justice’s office called the Minister of Justice’s office and the Prime Minister’s Chief of Staff, Mr. 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. 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.
If an issue is worthy of being “flagged” in this manner, there has to have been some recognition that the controversy might end up in litigation if the candidate so “flagged” was then nominated. In order to assess the significance, if any, of “flagging” an issue, I turned to the code of conduct for judges published by the Canadian Judicial Council (CJC). Commentary D.9 to Part 6, Principle D.3, of the CJC’s Ethical Principles for Judges, p. 43, states:
D.9 The duties of chief justices and, in some cases, those of other judges having administrative responsibilities will lead to contact and interaction with government officials, particularly the attorneys general, the deputy attorneys general and court services officials. This is necessary and appropriate, provided the occasions of such interactions are not partisan in nature and the subjects discussed relate to the administration of justice and the courts and not to individual cases. Judges, including chief justices, should take care that they are not perceived as being advisors to those holding political office or to members of the executive. (underline added)