Draft Day at the Supreme Court: the Harper v. McLachlin feud explained

This debate between McLachlin and Harper has revealed a fundamental misconception by some about the Chief Justice’s role in consulting with government respecting the selection process. Just what is that role? 

Graphic by the Vancouver Observer

To make sense of the feud between Prime Minister Harper and Supreme Court of Canada Chief Justice McLachlin, it helps to think of the court like a sports team, and the Chief Justice almost like a General Manager (who also plays).

There are differences, of course. This team only builds through the draft, never trades players or sends them to the minors, and every player plays every shift, even into old age. And the score is never tied. Finally, the Chief Justice doesn’t sign players, but advises the Prime Minister on the team’s strengths, weaknesses, and future requirements, and he makes the final call. 

Overwhelmingly, the commentary concerning the Chief Justice’s overtures to Harper and MacKay has focused on whether she should have initiated contact. The insinuation—now thoroughly discredited by all leading legal experts—being that her actions were politically motivated and improper.

This debate revealed a fundamental misconception by some about the Chief Justice’s role in consulting with government respecting the selection process.

To the average person, a judge is a judge is a judge. But judges are more like hockey and football players—they have different and complementary skills. Some, before their appointment as a lower court judge, were tax or estate lawyers. Others know family law inside out. Some have decades of experience in court and understand evidence and procedure, while others practiced corporate law and rarely saw the inside of a courtroom until their judicial appointment. Some are superlative writers, others not so much. Some are quick studies, and some are painstakingly laborious decision-makers. Some are law professors without court experience, as was former Chief Justice Bora Laskin. Each brings a unique skill set and strength to the bench. 

The right player in the right position

When it comes to filling vacancies on the Supreme Court, the Chief Justice is routinely consulted about the court’s needs. Like any sports GM, the Chief Justice will watch the composition and chemistry of the existing team. As each justice retires, she’ll be mindful of lost expertise. And she’ll keep an eye out for how many years her remaining team members have left and what output can be expected of them.

Think of it this way—the main areas of focus for the Court are criminal, constitutional, civil, and administrative law, so senior experience in one of these areas is a major requirement for the court. Roughly 40 per cent of the court’s cases are criminal matters, a forte of the retiring Quebec Justice Morris Fish.

There’s the additional requirement that three members of the bench come from Quebec and have expertise in that province’s Civil Code, which is markedly distinct from the common-law system practiced by every other province.

So in replacing Justice Fish, both Canadian criminal law and Quebec Civil Code law and procedure would be high on the ideal candidate description. As a marine lawyer appointed to the Federal Court (which, despite its name, only deals in a narrowly confined subject area) Marc Nadon has no practical experience in either.

There are also basic administrative considerations. During her tenure the Chief Justice ramped up the speed of decisions, cutting wait times in half. Her court operates at full throttle, and she needs judges who can step in and take over writing duties on leading cases in short order.

And she’s got to keep an eye on the rest of her bench. Justices Rothstein (Manitoba) and LeBel (Quebec) will both retire soon, creating further gaps. 

Eligible for the draft?

Finally, there is the question of eligibility. Normally this would never arise, especially as some 200 judges in Quebec are both eligible and experienced. 

The view that McLachlin behaved improperly misses the glaringly obvious reasons for her actions: she had a duty to protect the integrity of the court. Any challenge to a nominee’s eligibility is inherently divisive, necessarily undermining the stature of the candidate and placing the court in the untenable position of ruling on one of its own members. And it exposes the court to damaging political scrutiny.

Had Marc Nadon been appointed by a 4-3 margin, it would have profoundly disrupted the court’s “team chemistry,” that essential collegiality and camaraderie needed for a well-functioning body. That this was a Quebec appointment made it an even more reckless roll of the dice for Harper. Had the majority over-ruled the two Quebec justices who opposed Marc Nadon’s eligibility, a constitutional crisis might easily have erupted.

And finally, the Supreme Court of Canada is a nine-player bench. If it’s down one, it’s actually down two, as the court must always field an uneven number to avoid a tie. Team Supreme has effectively been playing short-handed by two players for almost a year.

And in this absurd debacle, there’s been precious little thought for Justice Nadon himself, who’s suffered an undeserved and mortifying public humiliation.

All in all, there was an abundance of extremely good reasons for the chief justice to pick up the phone and, as delicately as possible, attempt to head off disaster. This selection “process,” if you can call it that, was spectacularly mangled by an obstinate Prime Minister and his supine Minister of Justice, who both behaved abominably in its aftermath.

The one bright light in this whole fiasco is that Canada’s Chief Justice had the judgment and good sense to try to prevent it.

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