LONDON, Ont.—Prime Minister Stephen Harper is insisting there was nothing wrong with how he arrived at his decision to nominate Marc Nadon to the Supreme Court of Canada.
And in a remarkable public statement today, Chief Justice Beverley McLachlin says her office discussed the possibility of meeting with Harper about the nomination, but ultimately decided not to pursue it.
Harper says he consulted constitutional and legal experts both within and outside the government, and they agreed there would be no problem in nominating Nadon, a semi-retired Federal Court of Appeal judge from Quebec.
McLachlin, meanwhile, says she warned the government about a “potential issue” regarding the eligibility of a Federal Court judge from Quebec, but never offered her opinion about whether it had merit.
Harper says it would have been “totally inappropriate” for him to have consulted the Supreme Court justices themselves about the appointment.
Harper also says the Supreme Court decision to reject Nadon means that Federal Court judges from Quebec are essentially ineligible to sit on the high court, a situation he considers unfair.
On Thursday, Harper’s office issued a statement that suggested McLachlin tried to speak to the prime minister about his plan to nominate Nadon.
Justice Minister Peter MacKay has so far refused to describe the conversation he had with McLachlin—specifically, whether she indeed wanted to consult with Harper.
“Clearly there was an issue over a pending appointment and after having spoken to the chief justice, it was my considered opinion that that call shouldn’t take place,” MacKay said on his way today into an event at the construction site of a new library in Halifax.
“It was ultimately (Harper’s) decision whether he spoke to her or not, but I just felt as justice minister that it was not an appropriate call.”
Thursday’s extraordinary statement was prompted by a media report that said Conservative government members have become incensed with the top court after a series of stinging constitutional rebukes.
Among those government setbacks was the eventual court ruling that Nadon was not qualified under the Supreme Court Act.
The nine-member court has been short one justice for almost a year as a result of the bungled appointment.
Harper’s chief spokesman issued a statement late Thursday saying that McLachlin “initiated” a call to MacKay to discuss the Nadon appointment at some point during the selection process.
“After the minister received her call he advised the prime minister that, given the subject she wished to raise, taking a phone call from the chief justice would be inadvisable and inappropriate,” Jason MacDonald said in the statement.
“The prime minister agreed and did not take her call.”
The PMO’s statement was released while McLachlin was participating in an event at the University of Moncton where she was delivering a speech. She was unavailable for comment Thursday.
Earlier, however, the Supreme Court’s executive counsel issued his own extraordinary statement, saying McLachlin’s advice had been sought by the committee of MPs vetting possible Supreme Court nominees.
“The chief justice did not lobby the government against the appointment of Justice Nadon,” said the statement from Owen Rees, the court’s executive counsel.
“She was consulted by the parliamentary committee regarding the government’s shortlist of candidates and provided her views on the needs of the court.”
McLachlin’s office pointed out to both MacKay and the prime minister’s chief of staff that appointing a Quebec justice from the Federal Court of Appeal could pose a problem under the rules—an issue Rees said was “well-known within judicial and legal circles.”
Rees wrote that McLachlin “did not express any views on the merits of the issue.”