THE Conservative government led by Stephen Harper has a politically effective habit of going straight for the jugular of perceived opponents. They have successfully seen off two Liberal leaders, Stéphane Dion and Michael Ignatieff, by characterising the first as inept and the second as out for personal glory. A third, Justin Trudeau, is now under attack in Conservative party ads for lacking judgment. Politics is a contact sport: targeting political rivals is within the rules of the game. But taking on unelected public officials—as the prime minister’s spokesman did on May 1st when he suggested that Beverley McLachlin, chief justice of the Supreme Court, had acted inappropriately—is a different matter.

Mr Harper is not happy with the Supreme Court, which has decided against the government in a series of recent cases. The court rejected the government’s proposed reforms to the Senate as unconstitutional; said the same thing about three provisions in its tough-on-crime legislation covering sentencing, parole and prisoner transfers; and turned down the prime minister’s most recent appointment to the top court on grounds that he did not fit the requirements set out in law.

The government grudgingly accepted these decisions. But behind the scenes, senior Conservatives grumbled about judicial activism. The prime minister’s office then stirred the pot by saying the chief justice had once attempted to contact the prime minister about filling the vacancy on the court and was rebuffed because the call was “inadvisable and inappropriate”.

This was too much for 11 former presidents of the Canadian Bar Association, who said in an open letter to the prime minister that not only were the comments disrespectful, they could be seen as an attempt to intimidate the Supreme Court in future cases where the government was a litigant. They called on Mr Harper to state unequivocally that he respects the independence of the courts. The council representing all the law-school deans in Canada chimed in with the same concerns and recommendations, noting that this was “an unfortunate and unprecedented attack on one of the most important institutions of Canada’s constitutional democracy”. Despite the chorus, Mr Harper has not clarified his comments.

Ms McLachlin, who was appointed to the Supreme Court in 1989 and made chief justice in 2000, has stated publicly that she had contacted the justice minister and the prime minister’s chief of staff in July 2013, when a list of possible appointees was being prepared, to flag an eligibility issue that applied only to the three seats in the nine-member court reserved for justices from Quebec. The French-speaking province follows civil law, rather than the common law found in the rest of Canada.

The Supreme Court Act states appointees from that province must come from the Quebec Court of Appeal, the Superior Court of the Province of Quebec or be a member of the Quebec bar with 10 years’ standing. The chief justice said in a statement she merely flagged the issue and did not voice an opinion. Two months later the government announced its choice: Marc Nadon, a semi-retired Federal Court judge, who did not meet the eligibility requirements.

As a result, and for the first time in its history, the Supreme Court was asked to rule on the eligibility of one of its members. It did so in a seven-to-one decision on March 21st, finding that Mr Nadon did not fit the requirements. For good measure it also disallowed a last-minute attempt by the government to change the law to allow the Nadon appointment by inserting new wording for the Supreme Court Act in an omnibus budget bill.



The opposition New Democrats and Liberals have repeatedly asked Mr Harper to state unequivocally that the chief justice had done nothing wrong. Ms McLachlin heads one of the three branches of government; to do her job properly her reputation must be unimpeachable. Mr Harper has chosen the wrong opponent this time.