Now we know a little more about Stephen Harper and his view of the Supreme Court of Canada. What we know is that he wants to politicize the high court.
If this is true, as the Globe and Mail reports, it is uncharted territory in this country. We are through the looking glass. Governments have always named justices to the court whose judgments they favour. Some lean liberal, others conservative.
On the whole, though, appointees have always reflected the integrity and primacy of the institution. The nine seats on the court, we would like to think, are filled by the best legal minds in the country.
Disappointments? Of course. But the Supreme Court remains a venerable institution today, above reproach. The reason is that its members are seen to be exemplars of trust and excellence.
Indeed, it is one of the remarkable achievements of our democracy — and a manifestation of the good governance we have always enjoyed, regardless of the party in power — that the court has been fundamentally (though not necessarily wholly) free of ideological motive or political influence.
Consider this for a moment.
In our long history (we are not a young country, as politicians like to crow) we have never had reason to question who sits on the court.
Not so in the United States, where Franklin Roosevelt was accused of “packing” the Supreme Court in 1937. The court was accused of throwing the election to George W. Bush in 2000. It is so polarized now that it is simply accepted that Barack Obama will appoint a “liberal” justice.
In Canada, we have avoided that. When Harper appointed Marshall Rothstein, Michael Moldaver and Richard Wagner, no one said they were unfit to sit on the court. When Paul Martin appointed Rosalie Abella, no one said that, either.
These justices might have their critics who challenged their interpretation of the law, sometimes angrily. But there was no reason to challenge their credentials — at least not with credibility.
Now we are entering a different universe. According to the Globe, Harper considered several lesser candidates from the Federal Court of Canada to fill the vacancy for which he ultimately nominated Marc Nadon.
It didn’t matter to the government that Nadon was seen in legal circles as a mediocrity. Nor that he sat on the Federal Court.
In fact, we now hear that he was one of four candidates from the Federal Court, all of whom, under the rules, were not eligible to sit on the high court. These judges were considered not because they were the best candidates, but because the government “worked the selection process to find a more conservative judge than it believed was available in Quebec,” while ignoring the province’s top jurists.
The process was more about ideology than quality. And to get his much-coveted conservative judge, Harper was ready to pick a fight with Chief Justice Beverley McLachlin. That is unprecedented. In eight years in office, Harper has tried to bring incremental but sustained change to Canada — lowering taxes, imposing harsher prison sentences, shrinking the CBC, celebrating the military, extolling royalty — without touching medicare, constitutional reform or any of the hot-button issues such as abortion, capital punishment or gay marriage.
He has always been careful.
Here, though, for the first time, we see him recklessly taking on a judiciary led by a woman who is much esteemed at home and abroad. He does it with a drive-by smear. Then he runs for cover by refusing to substantiate his allegations.
That no legal authority of stature in Canada supports the prime minister on this, that the chief justice has twice ably explained herself, that the evidence suggests she did nothing improper, does not bring an apology from the prime minister.
Of course not. Stephen Harper does not apologize or explain, appealing only to the court of public opinion.
Andrew Cohen is a professor of journalism and international affairs at Carleton University in Ottawa.
