OTTAWA—A former Supreme Court of Canada judge says Prime Minister Stephen Harper got poor advice from his justice minister and should have taken a call from Chief Justice Beverley McLachlin to flag a potential legal problem with his judicial candidates list.

Retired Justice John Major slammed the prime minister’s criticism of McLachlin in recent weeks since the Supreme Court ruled against Harper’s appointment of Marc Nadon saying it was “completely unjustified in my view.”

In an interview from his Calgary office where he now practices law, Major said he did not agree with the high court’s March 21 reasoning that federal court judges are ineligible for Quebec seats on the Supreme Court. Major said an argument could be made that the Federal Court is an “equivalent court” with the Quebec Court of Appeal.

But Major questioned how the government has handled the political and legal issue from the get-go, saying it’s a “puzzle” it ever came to this.

“I wonder if Harper hasn’t suffered from his poor choices of ministers of justice,” said Major, who was appointed by the Harper government in 2006 to head the Air India commission of inquiry.

A former justice minister, Vic Toews, he said, “was no gem” and “the present minister” had little legal experience, he suggested. (Peter MacKay spent two years in private law practice and four years as a Nova Scotia Crown attorney prior to entering politics in 1997.)

Major, who sat on the high court for 13 years from 1992-2005 and was appointed by the Harper government in 2006 to lead the Air India inquiry, said it is “strange” that Harper’s office has taken control of the high court appointments, adding in the past prime ministers relied more on their justice ministers.

In the Nadon affair, Major said in the first place, “If he (Harper) had a forceful minister of justice, he might get an argument” about the appointment or at least on how to proceed to lay “the groundwork, by going to see the premier of Quebec.”

Major said it wasn’t even clear until well after Toronto lawyer Rocco Galati challenged the eligibility of a federal court judge for the job that the Quebec government would fight it too. Quebec suggested it would file some kind of challenge. That prompted the federal government’s reference to the top court and a retroactive legislative change in the budget bill to amend the Supreme Court of Canada Act to allow the appointment.

In the second place, once McLachlin called, Major said MacKay should have advised the prime minister to take her call.

“She did Harper a favour,” said Major. “When she saw the list two months before the appointment was made, she saw four federal court judges and two from the Quebec Court of Appeal and told the minister of justice that the federal court appointments may be problematic.

“That’s the last she said on it. And it turned out to be problematic. But you would think that Harper might be grateful to have that pointed out to him so he could decide whether to go ahead.”

“You’d think Harper, just out of ordinary curiosity, would like to know why it was problematic. He might change his mind . . . if there was information available to him that would have been of help to the government and presumably to the court.”

“How he could criticize that is beyond me.”

Major said the advice of a chief justice may be offered, but isn’t always followed. He recalled a case he knew of before his tenure when a Quebec seat on the high court was open, and the justice minister of the day contacted then-chief justice Brian Dickson. He said Dickson was “very vocal” in support of one candidate and “very critical about the other. “Dickson made the case for Candidate A on Tuesday, and on Thursday, Candidate B was appointed,” he chuckled.

MacKay and Harper have publicly criticized McLachlin’s call as inadvisable and inappropriate, suggesting it was akin to calling about a case before the court. Harper now says he foresaw a potential legal challenge, and decided it was unnecessary to take McLachlin’s call.

But Major says it’s clear there was “no case in this particular matter.”

He said the prime minister clearly “took some notice” however because he sought outside legal opinions from eminent Ontario jurists to support the bid to name Marc Nadon.

It’s not clear whether Harper sought any legal opinions from within Quebec to support the Nadon nomination. The government claimed solicitor-client privilege in declining to answer questions about that from Liberal critic Irwin Cotler.

However the government appeared again to shrug off confidentiality that is supposed to protect the work of the judicial selection advisory committee, with Harper telling the Commons both the NDP and the Liberal party supported the appointment of federal court judges to a Quebec seat and specifically, the Nadon appointment — a claim the NDP later disputed. The Liberals declined to comment.

Both Opposition parties suggested the Conservatives have politicized the entire process.

The Supreme Court eventually invalidated the Nadon appointment. It ruled the law bars Ottawa-based Federal Court judges for the three Quebec seats on the Supreme Court, which are reserved for senior members of Quebec’s bar, trial or appellate courts. Any change to that would require a constitutional amendment, and unanimous provincial agreement, it said.

Major said the court should be subject to “legitimate criticism” about its rulings, but insisted it was wrong of the government “to accuse the chief justice of improperly trying to contact the prime minister.”

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Major said the court is now “limping along” with one vacancy for the past nine months on the bench, and another one looming in November, just as the fall session gets underway.

On Tuesday, Harper told the Commons the government “will be acting in the very near future” to name a replacement for Nadon. But a document tabled Monday by the government suggests that no consultations have begun for the next Quebec seat that must be filled when Louis LeBel retires in November.

Correction – June 4, 2014: This article was edited from a previous version that mistakenly said retired Justice John Major recalled an instance during his tenure when the advice of a chief justice may be offered, but isn’t always followed. In fact, Major was referring to case that preceded his tenure.

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