2014-09-16 Harper suspended Commons committee reviews of Gascon’s Supreme Court appointment in June: House documents hilltimes/news/politics/2014/09/16/harper-suspended-commons-committee-reviews-of-gascons-supreme-court/39634 Harper suspended Commons committee reviews of Gascon’s Supreme Court appointment in June: House documents Prime Minister Stephen Harper suspended special Commons committee reviews in June of his nominations to the Supreme Court of Canada following an unprecedented public dispute in May over Conservative allegations that Supreme Court Chief Justice Beverley McLachlin had attempted to lobby against a 2013 appointment by the Prime Minister. Documents show that although Prime Minister Stephen Harper scrubbed a House committee review in June of newly-appointed Justice Clément Gascon because there was ‘some urgency’ in filling the position. The Hill Times photograph by Jake Wright By TIM NAUMETZ | Published: Tuesday, 09/16/2014 4:49 pm EDT Last Updated: Wednesday, 09/17/2014 11:12 am EDT PARLIAMENT HILL—Prime Minister Stephen Harper suspended special Commons committee reviews in June of his nominations to the Supreme Court of Canada following an unprecedented public dispute in May over Conservative allegations that Supreme Court Chief Justice Beverley McLachlin had attempted to lobby against a 2013 appointment by the Prime Minister. Documents show that although Mr. Harper (Calgary Southwest, Alta.) scrubbed a House committee review in June of newly-appointed Justice Clément Gascon because there was “some urgency” in filling the position, the Prime Minister’s Office also suspected the review process had resulted in “breaches of confidentiality” during the 2013 elevation of Federal Court Judge Marc Nadon to fill a Quebec vacancy on the Supreme Court. The Supreme Court of Canada, in response to a federal government request for an opinion on Judge Nadon’s nomination after it became controversial and in response also to a separate Federal Court challenge by a constitutional lawyer, ruled last March that the appointment of Judge Nadon contravened a constitutional requirement that only members of the Quebec bar or judges from the province’s Superior or Appeal courts qualified for appointment to the Supreme Court of Canada. The challenge of his choice of Justice Nadon was a blow to Mr. Harper (Calgary Southwest, Alta.), and came at a politically crucial time as the Supreme Court was taking up another case—an opinion the federal government has earlier requested for the constitutionality of Mr. Harper’s attempts to reform the Senate by term limits and consultative elections without provincial government support. The Supreme Court eventually ruled the federal Senate proposal unconstitutional, and at the same time ruled that another option, outright abolition of the Senate, could not take place without unanimous consent of all the provincial legislatures and the national Parliament. Following those two defeats for the government, unidentified Conservatives kicked off the spat with Chief Justice McLachlin when they leaked word to National Post columnist John Ivison that the chief justice had attempted to lobby against Judge Nadon’s selection before the decision had been made. It was an unprecedented government assault against a Supreme Court judge, let alone the chief justice of the Supreme Court, and drew a barrage of criticism from the legal community and other areas, including the Commons opposition. Mr. Harper suggested Chief Justice McLachlin had interfered in a case that she might have to consider at the Supreme Court. On behalf of Chief Justice McLachlin, the Supreme Court posted a statement on its media page on May 2 saying “at no time was there any communication between Chief Justice McLachlin and the government regarding any case before the courts.” Following the setback, Justice Minister Peter MacKay (Central Nova, N.S.) went into high gear to find a new nomination for the Quebec seat, quickly consulting the Quebec government as well as the legal community in the province and elsewhere. In a response to written questions in the House of Commons, dated June 3, 2014, but tabled by the government in the House on Sept. 15, 2014, Mr. MacKay’s department disclosed that the PMO took control of the fast-track appointment of Justice Gascon—to the point of suspending the system of Commons committee review of Supreme Court appointments that Mr. Harper endorsed when he first took office in 2006. Justice Gascon’s appointment took place as the Supreme Court was ending its spring sittings, prior to a summer break before the new fall session. “There was some urgency in filling the position since Mr. Justice Morris Fish [one of the three Quebec judges] had retired on Aug. 31, 2014, and, as such, it was felt that the best interests of the administration of justice was to move as quickly as possible and that meant not convening an ad hoc committee,” the Justice Department said in the written response to questions Mr. MacKay submitted to the Commons. “The main consideration was the best interests of the administration of justice,” the statement said. “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 needed to be reviewed.” The questions about the absence of a committee review of Justice Gascon’s appointment were submitted in the Commons by Liberal MP Irwin Cotler (Mount Royal, Que.), who had established the committee review system as justice minister prior to the defeat of the Paul Martin Liberal government in the January 2006 federal election. The first Ad Hoc Committee on the Appointment of Supreme Court Judges was struck in 2004, and at the time included a representative from the Canadian Judicial Council and one from the Law Society of Upper Canada along with MPs from each party in the Commons. The committee reviewed and approved of prime minister Paul Martin’s appointments of Justice Rosalie Abella and Justice Louise Charron, who has since retired. The series of questions asked why no committee of Justice Gascon’s appointment took place and also “who made the ultimate decision.” “The Office of the Prime Minister,” stated the response from the Justice Department, tabled with Mr. MacKay’s signature. In response to a question about whether the system has been abolished, the response says: “The process has not been abolished. It is under reconsideration.” The Supreme Court statement in May stated that Justice McLachlin had consulted with the special Commons committee as part of the nomination process in 2013. “On July 29, 2013, as part of the usual process, the chief justice met with the Parliamentary committee regarding the appointment of Justice Fish’s successor. She provided the committee with her view on the needs of the Supreme Court,” the Supreme Court statement said. “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. [Ray] 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 a meeting,” the statement said. Following that, Mr. Harper went ahead with the appointment of Mr. Nadon, who would have been the first Federal Court judge from Quebec to sit on the Supreme Court. Four months later, a Supreme Court majority six to one decision, supported by several justices who had been appointed by Mr. Harper, ruled the appointment was unconstitutional. Mr. MacKays press secretary, Clarissa Lamb, confirmed in an email to The Hill Times on Tuesday that the committee review process remains suspended and under consideration. The next seat Mr. Harper will have to fill on the Supreme Court is approaching, with another Quebec judge, Justice Louis LeBel, set to retire at the age of 75 on Nov. 30. Liberal MP Sean Casey (Charlottetown, P.E.I.), his partys justice critic, said the ad hoc committee review should be able to question Mr. MacKay about Justice Gascon’s appointment to the Supreme Court. The committee has no power to veto an appointment, but the system allows MPs to express opinions privately about the short list that goes to the Prime Minister for a selection, and allows MPs to probe the nominee during a public hearing. “Whether the Prime Minister is angry about a Supreme Court decision or not should never influence the principles of transparency and accountability. Parliament has a role to play in the process, and there is still time for Parliament to ask questions of MacKay regarding Gascon’s appointment before the courts first case is heard this October,” Mr. Casey told The Hill Times. “While the committee review process put in place by former minister of justice Irwin Cotler has been inclusive, diverse and fair in the past, it is not an official Parliamentary committee,” he said Wednesday in an email response to questions. “As Irwin Cotler has repeatedly advised, the Prime Minister could have worked to create a true oversight process that involves Parliamentarians, ensuring a transparent process from start to finish. Instead, he chose to circumvent it completely, which is not entirely surprising from a Prime Minister who typically prefers closed door decisions over dissenting voices,” Mr. Casey said. “With Justice LeBel’s retirement fast approaching, it would be prudent to begin thinking about this sooner rather than later so that the Supreme Court is not dragged along for several months, absent a member,” Mr. Casey said. tnaumetz@hilltimes The Hill Times
Posted on: Mon, 06 Oct 2014 04:13:06 +0000
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