OTTAWA — An international legal body has cleared Chief Justice Beverley McLachlin in her efforts to communicate with Prime Minister Stephen Harper’s government over a judicial appointment to her court last year, and slammed the prime minister for remarks it says hurt her moral authority, integrity and public confidence in the judiciary.

The Geneva-based International Commission of Jurists, in a letter to a group of Canadian lawyers and legal academics who asked it to investigate, said it concluded that McLachlin’s move to flag a potential legal problem was “not inappropriate.”

On the contrary, Harper’s and his officials’ remarks were the problem, it said. It urged the prime minister and his justice minister to withdraw the remarks and apologize, and to revamp its judicial selection process to boost transparency and independence.

The group’s review outlines the facts of the unprecedented spat that unfolded after Harper’s officials revealed a call by McLachlin to Justice Minister Peter MacKay.

Harper’s officials suggested McLachlin’s behaviour was “inappropriate and inadvisable” and amounted to lobbying against Harper’s eventual choice of Federal Court of Appeal Judge Marc Nadon for a spot on the Supreme Court.

The ICJ dismissed that argument, and added its voice to an overwhelming chorus in Canada that said the best thing Harper could do is withdraw his remarks and apologize.

“The Prime Minister and Minister of Justice could best remedy their encroachment upon the independence and integrity of the judiciary by publicly withdrawing or apologizing for their public criticism of the Chief Justice.”

The ICJ is a respected non-governmental organization of up to 60 lawyers including senior judges, attorneys and academics who “promote respect for international human rights through the law. It has no legal power or authority, but a Manitoba law professor who with others sought the opinion, says it is known and respected for its expertise in judicial independence, and its “neutrality.”

It set out the responsibilities of the Canadian government under international law to uphold an independent judiciary, and said Harper, MacKay and other senior government officials had made criticisms of McLachlin that were “not well-founded and amounted to an encroachment upon the independence of the judiciary and integrity of the Chief Justice.”

Their 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.”

The letter was the result of an examination undertaken in response to a May 9 letter written by Manitoba law professor Gerald Heckman, Saskatchewan professors Ken Norman and Brent Cotter, Lucie Lamarche of the Université du Québec à Montréal and the University of Ottawa, Toronto professor Audrey Macklin and Lorne Sossin dean of Osgoode Hall Law School.

In an interview Heckman said he agreed with what he called a “thoughtful and constructive” opinion that was “not a condemnation” but a review based on international principles.

“Mistakes were made by the prime minister and his justice minister that impacted the independence of the judiciary but they can be remedied” by a public retraction, said Heckman.

Heckman also welcomed the ICJ’s observation that some of the controversy might have been avoided if Canada had an independent body to select judicial candidates and clear procedures for consultation between the executive and the judiciary.

However, the Prime Minister’s Office on Friday declined to offer any comment on the report.

The Conservative government had not responded to the ICJ’s original request to provide any relevant information to the probe.

The ICJ said there was “no evidence” the chief justice “had any intention in contacting the Minister of Justice and the Prime Minister’s Office other than to alert them to the possibility that a legal issue could arise with the nomination” of a Federal Court judge to the Supreme Court of Canada.

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And no evidence that she “either intended to or expressed a view on the merits of that legal issue or the merits of any individual.”

“The ICJ understands that at the time the Chief Justice made the calls on 31 July 2013, the issue of eligibility potentially affected several candidates on a long short list under consideration.” Even if it had only been an issue with one candidate under consideration, it wouldn’t change the ICJ’s view of it, the body said.

Furthermore, the ICJ clears McLachlin of any hint of wrongdoing in issuing her own public denial to the allegations first published in the National Post, calling her statement “brief, measured and factual . . . consistent with international standards and within the scope and role of her office in defending the public confidence in the judiciary in light of the allegations she had been informed were then being made public.”

It said McLachlin’s remarks “contained no implied or express criticism of the actions of the PMO or Minister of Justice.”

Rather, McLachlin’s response “emphasized the need for respect between the different branches of government.”

It said a “problem arose” when Harper’s own office — through his spokesman Jason MacDonald — said neither the prime minister nor MacKay “would ever consider calling a judge where that matter is or could be before the court of competent jurisdiction,” remarks that MacKay and Harper repeated in following days.

“This was unfairly conflating the issue of the executive seeking to influence a court on the merits of a matter in litigation,” the ICJ said. It was a statement made during the normal consultation period, when no shortlist or candidate had been picked, and even if Harper and MacKay held a different view of it, there was no need months after the fact for the government to raise it “in public and in a manner that impugned the propriety of the Chief Justice’s actions.”

If anything, the only appropriate thing would have been to raise the concerns at the time through a formal complaint process.

“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.”

A spokesman for McLachlin said Friday the chief justice had no comment on the ICJ's letter or recommendations.

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