September 16, 2014 5:44 pm
Updated: September 16, 2014 5:57 pm

Peter MacKay’s department says it’s ok for Chief Justices to comment on Supreme Court appointments

Justice Minister Peter MacKay waits to appear before the Senate standing committee on Legal and Constitutional Affairs in Ottawa Tuesday September 9, 2014. THE CANADIAN PRESS/Adrian Wyld


OTTAWA – Justice Minister Peter MacKay’s own department says Chief Justice Beverley McLachlin has every right to weigh in on Supreme Court appointments.

This comes after MacKay and the Prime Minister’s Office suggested last spring McLachlin behaved inappropriately for trying to flag potential problems with appointing federal court judges from Quebec, such as Marc Nadon.

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Nadon was later deemed ineligible by the high court itself.

But justice department documents tabled in Parliament Monday say that not only is the Chief Justice consulted on appointments – she is also free to talk about individual judges.

“The Chief Justice is able to comment on the needs of the court and, at her discretion, on the expertise and suitability of individual candidates,” it says.

What’s more, the document says MacKay consulted with McLachlin on the most recent appointment of Justice Clement Gascon, and confirmed this is a normal practice.

“The Chief Justice was consulted with respect to the overall needs of the court,” it says.

The PMO did not immediately responded to questions about the documents, tabled at the request of Liberal MP Irwin Cotler.

MacKay’s office, without elaborating, said the question had already been addressed in question period.

READ MORE: PMO suggested Justice Marc Nadon resign, join Quebec bar: sources

In May, Harper accused McLachlin of trying to make an “inadvisable and inappropriate” phone call to warn him that there might be an eligibility problem with Nadon’s appointment.

MacKay said he advised Harper he “did not need” to take a call from McLachlin on the eligibility issue.

McLachlin subsequently released a rare statement of her own, saying she called MacKay and Harper’s offices only to warn them about the eligibility issue in general, not to express her opinion about Nadon.

“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,” she said.

McLachlin’s spokesman declined to comment Tuesday. But this summer, McLachlin told a Canadian Bar Association conference the tension with elected officials is not uncommon and she’s ready to move on to the business of the court.

The International Commission of Jurists has called on Harper and MacKay to apologize to McLachlin and to retract their comments.

Cotler said the information shows McLachlin did nothing wrong.

“She was in her right to comment on the expertise and suitability at the time of Nadon, which [the government] seemed to reject,” Cotler said.

“That’s an important line.”

‘Under reconsideration’

Meanwhile, the Conservative government is reviewing its Supreme Court nomination process due to “breaches in confidentiality” following Nadon’s botched appointment.

The leaks evidently refer to a Globe and Mail story released after Nadon’s appointment documenting the secret short list of six candidates who were in the running, including four Federal Court judges.

“It was also felt that certain breaches of confidentiality relating to the Nadon appointment had compromised the integrity of the current selection process and that it needed to be reviewed,” the document says.

“It is under reconsideration.”

In June 2013, then-justice minister Rob Nicholson announced a five-member selection committee made up of three Conservatives, a Liberal and an NDP MP to ensure “transparency and balance in the Supreme Court appointment process.”

The panel’s mandate was to review and assess a list of qualified candidates put forward by the justice minister – but it was sworn to secrecy.

Now, the Prime Minister’s Office has decided it wouldn’t convene the committee to review the June appointment of Nadon’s replacement, Justice Clement Gascon, the document says.

That means Gascon won’t appear before Parliament to answer questions from MPs, as new appointees to Canada’s highest court normally would – and there’s no indication other Supreme Court judges will do so in the future.

“This was the first time in a decade that we did not have a judicial selection panel or a Parliamentary process,” Cotler said.

“My concern is that there won’t be a process at all … without the involvement of Parliament, without the involvement of a representative and inclusive judicial advisory selection panel, without any transparency and accountability.”

He also said there’s no evidence any leaks came from the selection committee.

Meanwhile, it’s unclear what the process will be when the next Supreme Court vacancy opens up when another Quebec judge, Louis LeBel, retires on Nov. 30.

“The whole thing is reaching a level of the absurd,” Cotler said.

Gascon, who came from the Quebec Court of Appeal, was appointed in June based on his exposure to “many areas of law,” including criminal and civil law and an expertise in corporate, commercial, bankruptcy and insolvency law, the document reads.

The department said MacKay consulted with a variety of officials on Gascon’s appointment, including the Attorney General of Quebec, the Canadian Bar Association and the Chief Justices of the Quebec Courts of Appeal and the Superior Court.

And while gender parity and diversity are “important considerations,” the department said, “merit and overall competence and suitability remain the most important criteria.”

With files from The Canadian Press

© 2014 Shaw Media

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