The Healthy Respect Between Judiciary and Executive

As we enter 2018, we begin the new year with a new Chief Justice, and an opportunity to reflect on the Rt. Hon. Beverley McLachlin’s 17 years in this role, the longest in the entire history of Canada.

A well-experienced jurist, who has been on the bench since 1981, her role on the Court has had a discernible impact on the development of the Charter and its interpretation. The Charter is one of the most important national symbols of Canada, outranking even the flag, the national anthem, the RCMP, and even more than hockey. The CBA Presidents who served during her term stated,

No area of the law is untouched. Our Chief Justice has delivered scores of judgments touching on everything from the finer points of contract law, to criminal law, to constitutional issues, including the interwoven roles of the legislative, executive and judicial branches of government, and the proper duties of each. Through these decisions, we have come to grips with things as fundamental as the relationship between Canadians, as individuals or as groups, and the State.

That’s not to say that the Charter was not without its detractors through the McLachlin era. In 2006, Ray Pennings and Michael Van Pelt of Cardus think tank published a piece in Policy Options which stated that the previous governing party reflected an emerging Canadian polity that transcends “the current reality of Canadian diversity” that reflected “an aggressive rights-based polity that identifies with tolerance over definition.” This appears to be a cloaked manner of saying that the Charter values, especially as understood in the multicultural nature of Canada espoused in s. 27, were directly under reconsideration during this period.

As expected from the Court, there were times when the Chief Justice directly found herself in conflict with the government over Charter rights, notably in the unanimous 2010 decision in Canada (Prime Minister) v. Khadr that concluded the government had violated Omar Khadr’s s. 7 rights. Despite this finding, the Court expressed the appropriate deference to the government and respect of the prerogative powers of the executive by providing declaratory relief instead of a specific remedy, given that,

[43] …Mr. Khadr is not under the control of the Canadian government; the likelihood that the proposed remedy will be effective is unclear; and the impact on Canadian foreign relations of a repatriation request cannot be properly assessed by the Court.

Additional tensions between the Court and the executive were observed in 2013, when the Prime Minister claimed that the Chief Justice made an inappropriate phone call to her over the Quebec vacancy on the Court. This was made public the following year and the ensuing controversy was described as “an unprecedented rift between the Prime Minister’s Office and the Supreme Court of Canada, the executive and judicial branches of government.”

Of course consulting with the Chief Justice is not unheard of, and is common practice. Prominent legal organizations indicated that the Chief Justice had not done anything wrong. The Chief Justice herself made the unusual move of making a public statement in a public press release,

Given the potential impact on the Court, I wished to ensure that the government was aware of the eligibility issue. At no time did I express any opinion as to the merits of the eligibility issue. 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.

The Chief Justice held her final press conference on Dec. 15, 2017, but declined to comment specifically on the incident. Instead, she spoke extensively on the importance of the independence of the judiciary, especially in a global context where the rule of law is being undermined and judges are losing their independence, being constrained, or not having their orders enforced,

We have deep respect for our Charter of Rights and Freedoms among the people of Canada, and we have a public that values an independent judiciary, which is the best defence.

If people stand up and say, ‘We can’t attack our judiciary, we want an independent judiciary,’ that is — in a democracy such as ours — the best way to preserve the rule of law and judicial independence.

The move by the Prime Minister in 2014 was not just unusual, it was uncalled for and itself an inappropriate step. As the judiciary is itself limited to what it can publicly comment on, it is especially in those moments that the bar has the special responsibility to step up to defend the judiciary and clarify the roles of different branches within a democracy.

Now that she has retired, the McLachlin has had the opportunity to speak to the media about the incident more freely. On Dec. 17, 2017, she spoke to the CBC and said,

The suggestion they were trying to make was that I had tried to influence against the appointment of a certain justice.

… And so obviously I was shocked, I was astounded, because I knew I hadn’t done anything wrong. I spent a rather miserable two-and-a-half hours on the flight figuring out how this could have happened, and what was going on.

When I got back to the office I thought about it, and I said ‘I’m not going to get into a fight.’ Judges can’t get into fights with politicians — we have to just be quiet if we are accused, normally.

…I am totally respectful, and have always expressed that respect, of the right of the Prime Minister to appoint whomever he wishes.

Despite her retirement, that fight is still not hers to fight. It is for the rest of us who want to preserve the rule of law.

Prof. Gerald Heckman referred the matter with the Prime Minister to the International Commision of Jurists (ICJ) in Geneva, and on July 23, 2014 released their findings stating,

The ICJ considers that the criticism was not well-founded and amounted to an encroachment upon the independence of the judiciary and integrity of the Chief Justice.

Even if the Prime Minister and Minister of Justice were of a different view, in the circumstances, the ICJ sees no necessity for them to have aired their opinions on this matter several months after the fact, in public and in a manner that impugned the propriety of the Chief Justice’s actions. Such public criticism could only have a negative impact on public confidence in the judicial system and in the moral authority and integrity of the judiciary, and thereby on the independence of the judiciary in Canada.

If the Prime Minister or Minister of Justice had concerns with th appropriateness of the Chief Justice’s actions and wished to complain about her actions, the UN Basic Principles for instance indicate that the appropriate way to do so would have been a process which at its initial stages would have been “kept confidential, unless otherwise requested by the judge” (Principle 17).

If the concerns were not of a character to warrant formal complaint, it is difficult to see why there was a need to air them in the court of public opinion several months after the fact.

The ICJ also stated that the best remedy for this inappropriate encroachment on the independence and integrity of the judiciary was to publically withdraw the public criticism of McLachlin, or offer an apology for doing so in the first place.

To date, neither has been provided.