Law Times - Newsmakers

12 December 2014 top stories For MUCh oF 2014, leading voices from the legal profession engaged in a public debate that included the prime minister and his justice minister over appointments to the Supreme Court of Canada. In October 2013, Prime Minister Stephen Harper picked Fed- eral Court of Appeal Justice Marc Nadon to fill a Quebec spot on the top court. However, in order to join the Supreme Court, the candidate must have served as a Quebec judge or been a member of the Quebec bar for at least 10 years. Toronto lawyer Rocco Galati successfully challenged Nadon's appointment, as did Quebec's attorney general. And throughout the first half of 2014, Harper faced questions and criticism about how the government nominated him in light of the top court's rejection of his appointment in the spring. The fallout from the case resulted in a public spat that began in May between Chief Justice Beverley McLachlin and Harper after he suggested she had inappropriately tried to lobby against Nadon's nomination. Federal officials suggested McLachlin inappropriately contacted the prime minister about Nadon's appointment to the top court. The allegations suggested McLachlin had lobbied against Nadon's appointment, an issue she clarified in a statement: "At no time was there any communication between Chief Justice McLachlin and the government regarding any case before the courts." The statement noted that in April 2013, McLachlin had met with Harper to give him justice Morris Fish's retirement letter. Then on July 29, McLachlin provided the parliamentary commit- tee dealing with the appointment of the next Supreme Court judge with her view on the court's needs. Two days later, her office called the minister of justice and Harper's chief of staff to "flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court," according to the statement. The same day, she spoke with Justice Minister Peter MacKay to flag the potential issue. While her office made preliminary inquiries to have a discussion with Harper, she ultimately decided not to pursue a call or a meeting, according to the statement. "Given the potential impact on the Court, I wished to ensure that the government was aware of the eligibility issue," said McLach- lin. "At no time did I express any opinion as to the merits of the eligibility issue." Observers said McLachlin did nothing wrong in trying to warn the prime minister about what could happen if the government nominated a Federal Court judge. Lawyers who rallied to defend McLachlin included former Canadian Bar Association president Fred Headon. The Advocates' Society released a letter it had sent Harper saying "there is no substance" to the government's criti- cism that McLachlin had lobbied against Nadon's appointment and improperly interfered in a matter before the court. The controversy led to more questions about the consultation process that takes place during the selection of Supreme Court judges. University of Ottawa Faculty of Law Prof. Adam Dodek, who looked at the issue in a review, said: "There are consultations and then there are consultations. A consultation may be a pro forma affair wherein the person being consulted is asked for their sugges- tions and which are then politely filed away. Such appears to have been the case with the federal government's consultation with the attorney general of Quebec over the Nadon appointment." Things got worse for the Harper government in June during a meeting of the Ontario Bar Association when Justice Minister Peter MacKay talked about why, in his opinion, there are still so few women judges. He said women fear circuit-court jobs might take them away from their children. MacKay, who came under heavy criticism for the remarks, didn't attend the CBA conference in August, claiming he had a full schedule. The public war of words between Harper and McLachlin Judicial appointments By Jennifer Brown www.kuretzkyvassos.com Tel: (416) 865-0504 BARRY KURETZKY AND GEORGE VASSOS LEXPERT ® RANKED SINCE 1997 AND SELECTED TO BE IN "BEST LAWYERS IN CANADA" ntitled-1 1 13-12-04 9:49 AM

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