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)
The Chief Justice’s press release did not indicate that she mentioned Justice Nadon specifically by name. However, the press release does not deny that the Chief Justice wanted to address the Nadon candidacy as a judge of the Federal Court. (If this were not so, it should have stated the denial.*) One must then consider the purpose of her discussion with the Justice Minister. It could not have been to outline the general needs of the court, such as the need to replace the retiring judge’s expertise in criminal law. “Flagging” the issue of eligibility of a Federal Court judge for appointment to one of the positions reserved for Québec jurists had to have been a communication specific to Justice Nadon, i.e an individual case. If “individual case” were narrowed to include only active litigation, then the next sentence contains a prohibition against being perceived as an advisor. Those who ride to the defence of this practice may not have read this provision in the code of conduct. What is “flagging an issue” if not serving as an advisor? What is a “potential issue” if not a matter of anticipated legal controversy?
Or let us examine the question by construing the wording of the code: What is the purpose of an advisor if not to provide advice that the political office-holder is free to follow or reject, i.e. to flag issues for the office-holder? The Chief Justice’s press release appears to have painted her into a corner.
Judges issuing press releases do so at the risk of offending the rule that it is only through judgments that they speak. Here, because of the judicial press release, the news story has sprouted legs. The Prime Minister’s Office must have performed a risk assessment before opening up this controversy, and appreciated there would be little to be gained during the news cycle by taking aim at the conduct of the Chief Justice. So to proceed against a popular public figure, there has to be something more at stake than ordinary politics. If, as it appears, the controversy is grounded in truth, this is an attempt to open up some distance between the executive and judicial branches of government. One’s opinion as to the legitimacy of this move will depend on one’s view of the appropriate scope of judicial power. Critics of the Prime Minister in the legal community have said it is an attempt to diminish judicial power. But what if the Chief Justice was the one who originally overstepped the boundary, and then thought twice before stepping over it a second time? Based on what appears to be an admission that the Chief Justice contravened Principle D.3, the question we must next pose is: What next?
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* It has subsequently been reported that four of the six names on the shortlist were Federal Court judges, and that the purpose of the call to the Minister and the attempt to contact the Prime Minister was “to raise potential eligibility issues.” If true, there seems to be little doubt that the issue “flagged” by the Chief Justice was the eligibility of those four judges under the Supreme Court Act.