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MP disturbed by Supreme Court dustup

St. Albert MP Brent Rathgeber raises questions about "drive-by smear" by Prime Minister's Office

By: Victoria Paterson

  |  Posted: Saturday, May 10, 2014 06:00 am

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The “public spat” between the prime minister and the chief justice of the Supreme Court of Canada is unprecedented, says St. Albert’s MP.

“I find it very, very disturbing,” said Brent Rathgeber, member of Parliament for Edmonton-St. Albert.

Rathgeber is a lawyer by trade and said that, according to legal historians, there’s never been a “public spat” of this nature between the executive and judicial branches of Canada’s government.

The spat is over a phone call placed by Chief Justice Beverley McLachlin, reaching out to the justice minister and prime minister to alert them to potential questions of eligibility if a federal court judge was appointed by the government to fill the vacant Quebec seat on the Supreme Court.

Prime Minister Stephen Harper did not provide timelines when he fired the salvos across McLachlin’s bow, but said he was advised it would be inappropriate for him to take a call on a matter before the court.

A statement released on McLachlin’s behalf laid out timelines for the call, saying McLachlin flagged the issue at the end of July 2013 – before Justice Marc Nadon was appointed and the subsequent court challenge that was heard by the Supreme Court.

Nadon’s appointment was overturned by the Supreme Court’s decision.

“Those timelines are critically important to this discussion,” Rathgeber said. “I don’t think there’s any dispute that if there was a matter before the court, and she was in a judicial capacity, then that would raise a whole bunch of issues. But that’s not the situation here.”

Since McLachlin is administrator of the court, the eligibility question and vacancy were issues for her, Rathgeber said.

“Having said nothing about this alleged impropriety for all these months, the PMO (Prime Minister’s Office) issues a press release last Thursday. Very cleverly worded if you’ve seen it, they don’t actually come out and state what the chief justice did was inappropriate, what they say was it would have been inappropriate for the prime minister to take that call. The implication is quite clear that they’re implying it was inappropriate even if they didn’t quite say it,” Rathgeber said.

Nearly everyone who has spoken out since the spat started last week has been appalled at what Rathgeber called the “drive-by smear” of a sitting chief justice and agree that McLachlin’s actions were appropriate.

Rathgeber is concerned about Justice Minister and Attorney General Peter MacKay’s role in this: either he knew MacLachlin had acted inappropriately and said nothing for months, even as the case went before court, or MacKay is part of the dustup despite believing there was no impropriety.

“If he believes as I believe that the chief justice didn’t do anything improper, but he’s gone along with this drive-by smear from the PMO (last) Thursday night … if he’s complicit in that, then it’s not his legal competency that’s put into question, it’s his legal ethics,” Rathgeber said.

“For the attorney general of Canada to be complicit in a drive-by smear of the chief justice, that’s an extraordinary situation.”

The duelling statements come after the Harper government has recently seen key Supreme Court of Canada decisions not go their way, including the Nadon appointment, Senate reform and minimum sentencing.

The government isn’t happy with those decisions, Rathgeber said.

“But to try and claim that the chief justice is somehow ethically challenged in what can only be deemed as an attempt to undermine the court and have the court lose the credibility and therefore the confidence of Canadians is a very troubling situation – unprecedented, inappropriate and I would suggest without particular upside for the government or for our democratic institutions. Nobody wins in this.”

Rathgeber has blogged twice about the issue, which has drawn some response, and comments are starting to trickle in from constituents.

While the issue might have arisen out of backbencher complaints, Rathgeber also has some doubts that it wasn’t a choreographed manoeuvre.

“Whether it was accidental or they just seized an opportunity, what they’re trying to do is convince Canadians, now that we’re about 14 or 15 months away from an election, that their inability to make good on some of their promises is not their fault, it’s the fault of the interventionalist Supreme Court,” he said.

The Tories could use the “us-versus-Supreme-Court-of-Canada” bit as a fundraising tactic, Rathgeber said.

“I suspect the fundraising letters are already out,” he said.


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