The interplay between the courts and the federal government is often described as a dialogue. This week, it sounded more like a screaming match.

The Conservative government’s simmering feud with the Supreme Court of Canada boiled over after — in what could only have been a calculated strategy — Conservative MPs launched an anonymous attack through the media on the country’s highest court.

These attacks were not trivial and they impugned the very independence and legitimacy of the court. “It’s clear,” one unnamed Conservative MP told a journalist, “that Canadians don’t make laws through their governments anymore. Instead, they watch while unelected courts override important community standards.”

Another Conservative MP went as far to suggest that the court had interfered in the appointment of Marc Nadon.

SCOC Chief Justice Beverley McLachlin offered a limited and measured response: She said she had been consulted on the Nadon matter and that mutual respect between the branches of government is essential in a constitutional democracy.

The Prime Minister’s Office responded that neither Prime Minister Stephen Harper nor the minister of justice would ever call a sitting judge on a matter that is, or may be, before the court and that doing so would be “inadvisable and inappropriate”.

It seems the government, looking to pick a fight, has once again abandoned facts.

Adam Dodek, vice-dean of the University of Ottawa law school and a constitutional scholar, says that there is nothing unusual about contact between the chief justice and the government: “Every minister of justice in this Conservative government and in its predecessor Liberal governments going back at least 15 years has stated publicly that they have consulted with the chief justice of Canada about appointments to the Supreme Court of Canada.”

Mr. Harper’s contention that contact with the chief justice would be inappropriate is simply not supportable and grossly misleading. At best, the prime minister is engaging in revisionist history of the worse kind.

Put the government’s rhetoric up against the facts, and the rhetoric fails. The real question is: Why did the government seek to publicize this current conflict with the Supreme Court? Why now?

After all, Justice Minister Peter MacKay himself embraced the idea of consulting the chief justice. Testifying before the Ad Hoc Committee on the Appointment of Supreme Court of Canada in support of Nadon’s appointment, Mackay stated: “My predecessor, Minister Nicholson, and I consulted with the attorney general of Quebec, as well as with senior members of the Canadian judiciary, including the chief justice of Canada.”

A statement released today by the office of the Chief Justice of Canada says that “at no time was there any communication between Chief Justice McLachlin and the government regarding any case before the courts.”

The chief justice goes on to say that, as per custom, she met with the prime minister to give him Justice Fish’s retirement letter and to discuss the needs of the Supreme Court of Canada.

“Given the potential impact on the Court, I wished to ensure that the government was aware of the eligibility issue. At no time did I express any opinion as to the merits of the eligibility issue. It is customary for chief justices to be consulted during the appointment process and there is nothing inappropriate in raising a potential issue affecting a future appointment.”

It would be entirely appropriate for a chief justice — in the course of normal consultations — to flag any potential issue regarding Nadon’s eligibility to fill a Quebec seat on the Supreme Court.

The facts do not support the government’s position, nor does academic study. In a 1997 paper titled ‘The Charter Dialogue between Courts and Legislatures’, constitutional expert Peter Hogg concludes that the effect of Supreme Court decisions is rarely to completely block a legislative objective. Professor Hogg (whose opinion was relied on by the government to support the appointment of Nadon) concludes that an examination of the case law does not support a critique of Supreme Court’s decisions based on democratic legitimacy.

Put the government’s rhetoric up against the facts, and the rhetoric fails.

The real question is: Why did the government seek to publicize this current conflict with the Supreme Court? Why now?

The most obvious answer can be found in the litany of embarrassing recent defeats suffered by the government at the hands of the Supreme Court. Justice policy, judicial appointments, Senate reform government arguments — in the highest court in the land, so many of the government’s proposals have been routinely and emphatically dismissed.

The rule of law is a fundamental animating principle of a vibrant democracy. As Henri-Dominique Lacordaire said: “Between the rich and the poor, between the master and the servant, between the strong and the weak, it is freedom that oppresses, and the law that sets free.”

In a true democracy, all institutions must abide by the law — even the federal government. Perhaps it was learning this hard lesson that so angered the prime minister.

Michael Spratt is a well-known criminal lawyer practicing in Ottawa at the law firm Webber Goldstein Abergel. He has appeared in all levels of court and specializes in complex litigation. Mr. Spratt is frequently called upon to give expert testimony at the House of Commons Standing Committee on Justice and Human Rights and the Senate Standing Committee on Legal and Constitutional Affairs. He is a past board member of the Criminal Lawyers’ Association and the current treasurer of the Defence Counsel Association of Ottawa. Mr. Spratt’s continuing work can be found at www.michaelspratt.com and on twitter at @mspratt

The views, opinions and positions expressed by all iPolitics columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of iPolitics.