OTTAWA—The ranks of those who are profoundly disturbed by Prime Minister Stephen Harper’s comments about the chief justice of Canada now include several of Harper’s predecessors in the highest office in the land.

In interviews with the Star, former prime ministers Paul Martin (Liberal) and Joe Clark (Progressive Conservative) and the top aide to former Liberal prime minister Jean Chrétien delivered scathing reviews of Harper’s comments.

Martin — Harper’s immediate predecessor — offered an unequivocal defence of Chief Justice Beverley McLachlin’s recent actions in flagging a potential legal issue with a Supreme Court appointment.

“The chief justice acted perfectly appropriately. The prime minister has not,” said Martin, who named two judges to the top court during his tenure.

Clark, who appointed one judge to the high court during his brief time in the prime minister’s seat, said: “My gut (reaction) and my considered reaction was it’s very inappropriate.”

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While the government’s initial frustration over a string of losses before the high court may be understandable, lashing out at the top judge is not, he said. “I’m afraid it’s part of a pattern of disrespect that has been shown to institutions by this government. What makes it even more inappropriate and more troubling is that the prime minister is persisting in it.”

Chrétien was unavailable for an interview, but his former chief of staff, Eddie Goldenberg, now a lawyer in Ottawa, said Harper’s conduct and that of his office is inexcusable.

“I actually find it despicable,” Goldenberg said. “I can disagree with a lot of his policies or agree with some of them but this is just an attack on institutions — I’m trying to think of a word — to try to ‘swift boat’ the chief justice. We’ve never seen this in Canadian history.”

The rift burst into the open two weeks ago.

The Conservative government was stung by five recent rulings at the high court that were setbacks, including two significant measures the court said required constitutional amendment: Senate reform and an interpretation of the Supreme Court of Canada Act that would allow Harper to name Marc Nadon to the court itself, which was found invalid.

Senior PMO and high-level government officials were quoted anonymously in the National Post, saying McLachlin “lobbied” against Nadon’s appointment and was overreaching in rejecting key laws and policies of an elected government.

The first complainers were anonymous. Then Harper, Justice Minister Peter MacKay and Harper’s spokesman Jason MacDonald doubled down and suggested McLachlin had made an “inappropriate and inadvisable” call to Harper on the effort underway to fill the high court’s Quebec vacancy.

In interviews with the Star, the two former prime ministers and Goldenberg all said McLachlin had a duty to flag a potential legal question about a judicial candidate’s eligibility under the act that governs such appointments.

Furthermore, Quebec judicial sources told the Star that the issue was a “real” one, alive and certainly well known in Quebec, if not Ottawa. It arose most recently around the time the Conservatives moved to fill an earlier Quebec vacancy in 2012. That search led Harper to ultimately name Richard Wagner, a judge in the Quebec Court of Appeal, to the high court.

At that time, said another source with knowledge of the government’s confidential deliberations, three women from Quebec were identified as potential judicial candidates of interest to the federal Conservatives.

But Harper was not interested in merely retaining a gender balance of four women after Marie Deschamps retired. Wagner was widely respected in the province’s legal community, a former head of the Quebec bar, and the son of the late Claude Wagner, a one-time Quebec justice minister and former Progressive Conservative senator. He ended up the successful candidate.

The choice of a Supreme Court of Canada judge is a prime minister’s prerogative, and under Harper the selections have been finalized in his office.

But Martin and Clark told the Star that they, while in office, delegated the legwork to their justice ministers. Paul Martin turned to Irwin Cotler, still a Liberal MP, who set up a judicial advisory committee to seek input from the bar, bench, law faculties and the public — the precursor to Harper’s judicial selection committee, which is made up of only MPs and dominated by Conservatives.

Martin said it is a long-standing tradition for a government to welcome a chief judge’s input. He said during the search that ultimately led to two Ontario appointments on the same day — Rosalie Abella and Louise Charron (which upped the number of women on the bench to a historic high of four) — Cotler consulted McLachlin twice.

In the current dispute, said Martin, McLachlin’s actions at every stage have been above board, and she made “no error” in publicly responding to suggestions she’d acted inappropriately.

“The error is all the prime minister’s,” said Martin. “There was no error on the part of the chief justice.”

He said that “opinion on this is overwhelmingly in her favour,” including that of every past president of the Canadian Bar Association and Canadian law school deans.

“For God’s sake, even the American Association of Trial Lawyers came in on this issue and supported the chief justice,” he said.

“The mistake the government made was in treating the chief justice the way it’s treated so many other people.”

Asked if some of Harper’s critics are not overreacting and whether the court should instead be open to such criticism, Martin disagreed in part.

“I think the Supreme Court of Canada is a very robust institution. I do not believe the Supreme Court or the chief justice has been in any way damaged by this. Not a bit.” But, he said, this kind of personal criticism is wrong. “I do believe this is damaging to institutions of government.”

Clark, in his short time as prime minister, named just one Supreme Court justice: Julien Chouinard, who came from the Quebec Court of Appeal. Clark’s justice minister handled the search, which was “straightforward” and included consultations with then-chief justice Brian Dickson.

He didn’t recall the issue of eligibility ever arose: instead a “carefully drawn up list” of candidates came through the Justice Department. Any conversations he ever had with Dickson were simply social and informal.

Clark said he’s appalled at how Harper and his officials have acted.

“We can all understand a sense of high frustration at some point, and even anger that could have led to the initial statement,” he said. “But that doesn’t excuse or explain its persistence.”

He said the Harper government, more than any other, came to office “with very much an outsider mentality, whereas I think previous governments, probably all of them, accept not just the responsibilities but the prerogatives of other institutions in our system. I think it’s fair to say they’ve been consistently hostile to them.”

Clark cited how Harper has dealt with a litany of institutions, starting with the Commons and the Senate, landing repeated omnibus bills on the agenda, diminishing the role of private members, making Senate appointments “some of which were good and some clearly bad … it did not indicate a respect for the role and the rules of the Senate.”

Harper, he said, has shown disdain for the “principle of an independent electoral commission. They’ve done it with regard to first ministers’ conferences, which were an informal but I think very important institution.”

“I think there’s a pattern here that is quite a cause for concern because not only is it coming from the highest authorities of the government, it seems to be accepted by other members of the government and other members of their caucus, which is alarming.”

A similar hostility extends toward non-governmental organizations that carry out an advocacy role, Clark said. “We’ve all from time to time been upset by an NGO that was receiving public funding being involved in advocacy often against a government. But this is much more consistent.”

He sees the same antagonism toward the National Round Table on the Environment, killed in a recent budget, and the Rights and Democracy agency, which he established under Brian Mulroney. “We always knew it would be in a quasi-adversarial role to the government. That was its purpose.”

Clark says criticism of the chief justice was simply too much.

“That’s why the prime minister’s decision, which it had to be, to persist in this — as I say the original statement may have been a statement of frustration or loss of temper — but its persistence carries it into a different league and I think it’s quite alarming.

“Institutions have statutory lives of their own, but they depend upon legitimacy, and if public opinion and the legitimacy of our most basic institutions is gradually narrowed by whatever source, that’s a danger for democracy. And when the source is the prime minister himself, I find that quite alarming.”

Harper would likely shrug off Martin’s and Clark’s criticism. Since winning power in 2006, he has often taken cues from how Chrétien conducted himself in office.

But Goldenberg, Chrétien’s longtime senior policy adviser, says Harper has now acted like no other prime minister in history in offering public and unwarranted criticism of a chief justice. He dismissed as “bull----” the suggestion made by Harper’s office that McLachlin fired the first salvo by issuing a press release that challenged the initial anonymous comments.

“What they did is they attacked the institution of the court in a way that’s never happened before,” he said.

He said the chief justice and the prime minister have a right to talk to each other “and that’s happened often.” They are supposed to interact usually around matters of space or resources for the court’s administration, or about the court’s needs as an institution with the responsibility of reviewing laws and settling disputes.

“It might be that the chief justice will say, ‘Look, we’ve got enough experts on tax or securities but we see intellectual property is going to be a big issue in the next 10 years, or aboriginal rights, and when you’re looking at filling vacancies we hope you’ll consider some of those things.’

“It’s done all the time, and it’s always been done, and sometimes there’s a disagreement,” he said. “When Chrétien was minister of justice, he was the one who appointed Bertha Wilson to the court. The chief justice at the time, (Bora) Laskin, lobbied the prime minister for somebody else because he thought somebody else would be better.”

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Goldenberg, who wrote about that appointment in The Way It Works, his book on the Chrétien years, said Laskin wanted Ontario Court of Appeal Justice Charles Dubbin for the top court. “No one thought that it was inappropriate for Chief Justice Laskin to make representations to the prime minister for the appointment of a judge whom he thought would be best for the Supreme Court.”

Chrétien too wrote in his memoir about the process of naming the first woman to the high court, saying Trudeau had someone else in mind. Chrétien said he won the day by taking it to cabinet.

Goldenberg said McLachlin was not “lobbying.”

“In this particular instance nobody had been appointed, and she said ‘be careful if you want to appoint somebody from the Federal Court.’ ”

Goldenberg said the government can argue “one way or another that the judgment on Nadon was a good judgment or a bad judgment, but that’s not the issue. The issue is calling into question the integrity of the chief justice, and by so doing you’re calling into question the integrity of the Supreme Court.

“Why I find it despicable is they are setting up the court for attacks, saying it’s illegitimate and now we can raise money this way.

“When the prime minister of the country starts to question the institutions of the country, I think it is beneath him and I think it’s disgracing his office. I think the prime minister has a responsibility to defend the institutions of the country.”

Harper has publicly said he’d be excoriated by the legal community and the media if he or a minister improperly called a judge about a case that was or could come before the courts.

Indeed, Harper’s current caucus whip John Duncan was forced to resign as aboriginal affairs minister last year after it was discovered he wrote to a Tax Court judge on a case involving a constituent.

But Harper’s story has shifted as the outcry continues. He now says he foresaw a court challenge, as he well may have, given that MacKay revealed in the Commons that more than one Federal Court judge “applied” to take the seat of the retired Morris Fish, a criminal law expert on the high court.

(Judicial sources and other legal sources who have previously been involved in the identification of top court candidates say judges don’t “apply” for the job. However, if contacted by the Justice Department, which draws up an initial long list, candidates agree or disagree with allowing their name to stand for consideration and may submit rulings or articles to illustrate their judicial reasoning and qualifications.)

MacKay told the Star the government sought outside legal advice on the potential legal issue after McLachlin spoke to him.

McLachlin’s office says it made an initial inquiry on her behalf about speaking to the prime minister, but she did not pursue it and she expressed no opinion to MacKay on the merits of the issue.

Two months later, when Nadon was appointed after Harper got a green light from three top Ontario lawyers, who included two former high court judges, McLachlin presided over Nadon’s private swearing-in.

On that same day a Toronto lawyer launched a lawsuit to challenge the move. Nadon stepped aside. The government tried to retroactively change the law through a declarative amendment to allow a judge who had been a past member of the Quebec bar. But the high court ruled 6-1 that this amendment was invalid, with McLachlin siding against it too.

Only one judge, Michael Moldaver, would have allowed Nadon to take the Quebec seat. Marshall Rothstein, a former fellow Federal Court colleague and a friend of Nadon’s, recused himself from the case.

McLachlin herself was named by Brian Mulroney, whose Montreal office said the former prime minister was travelling and not available for an interview for this story.

However, in his memoirs, Mulroney wrote that two months after he took office in 1984 he was already getting recommendations about appointments to the bench.

“It had been a long time since Tories appointed anybody to anything in Ottawa,” he wrote.

But, he continued, “I wanted the best judges possible on the bench, and I didn’t give a hoot about their political background. An independent, competent, and respected judiciary is the backbone of Canada’s very existence and must be maintained by all federal governments because it is essential to the flourishing of our admired democracy.”

In his time he appointed eight justices to the high court, including McLachlin in 1989, whom Chrétien later made chief justice.

“There definitely was no partisan litmus test when I appointed a member of Canada’s highest court,” wrote Mulroney.

“Canada has a moderate, centrist Supreme Court, composed of the most talented and thoughtful jurists the nation can produce. This high standard was maintained before my service as prime minister and continued afterwards under Jean Chrétien, Paul Martin and Stephen Harper, who made their own appointments.

“Generally speaking, all of Canada’s superior courts are a model of excellence, and it is vital that they remain so. If our courts were to become politicized, it would be a dark and dangerous day for Canada.”

Independent MP Brent Rathgeber is a former member of Harper’s caucus who sat on the Conservative-dominated judicial selection advisory committee that led to the appointments of Moldaver and Andromache Karakatsanis.

Rathgeber, himself a lawyer, said the government’s frustration with the court is clear: “Rather than start over on Senate reform the reaction was to blame the whole thing on an overarching Supreme Court.”

But he said when the prime minister stood up in London, Ont., and suggested “impropriety on the part of the chief justice, the necessary — and I think indisputable — inference is what he’s trying to do is try to create less respect for the court.”

“His political motivation in my view is obvious: the election’s about 15 to 16 months away and so they go into the elections and say, ‘We tried to bring in consultative elections for the Senate, we tried to bring in nine-year terms, but the Supreme Court got in our way. Can’t do it.’ I’m sure the fundraising letters have already gone in the mail.”

McLachlin, he said, acted appropriately in her capacity, not as a judge sitting on a case but as administrative head who foresaw an issue “that would create a hole in her court for an indefinite period of time, which is exactly what’s happened. We’re now in middle of May 2014 (and) the court is still sitting with one member short.”

The Harper government says it will move soon to fill the vacancy, although no formal consultations have yet begun.

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