Harper's dust-up with the chief justice - pique or strategy?

There's a great deal of puzzlement about why Prime Minister Stephen Harper waited nine months before letting it be known he feels Chief Justice Beverley McLachlin should not have tried to approach him about a Supreme Court appointment.

The question came up again in question period Wednesday as NDP Leader Tom Mulcair asked when Harper intends to apologize to McLachlin.

Justice Minister Peter MacKay said the matter of McLachlin's attempt to red-flag a potential problem with naming a Federal Court judge to represent Quebec became public only because her own office issued a news release last week denying rumours McLachlin had lobbied against the appointment of Justice Marc Nadon.

Nadon has been a Federal Court judge in Ottawa for 20 years. The Supreme Court Act dictates that Quebec be represented on the top court by a lawyer with long standing in the Quebec bar or a Quebec provincial judge.

But that statement from McLachlin's office was in response to a newspaper article quoting anonymous Conservative MPs as well as a cabinet minister about tensions between Harper and McLachlin.

The article in the National Post suggested some government MPs were bitter about "unelected courts overrid[ing] important community standards." The piece appeared just days after the Supreme Court turned down two government cases, one relating to Nadon's appointment, the other about reforming the Senate.

Harper's timing questioned

Tom Flanagan, once a campaign manager and confidante of Harper's, said in an interview, "It's unprecedented as far as I know for a prime minister in office to make public a professional conversation with the chief justice, same with the Governor General, you just don't do it," Flanagan said.

On Tuesday, 11 past presidents of the Canadian Bar Association wrote an editorial protesting that Harper's remarks "claiming that the Chief Justice of Canada attempted an inappropriate conversation with him" threaten the independence of the courts.  

On Wednesday, the Canadian Council of Law Deans echoed the CBA's protest.

Simon Potter, a past president of the CBA, in an interview with CBC News, questioned the chronology of the government's criticism of McLachlin.

Potter said McLachlin's calls were made public only after "the government itself made a reference to the Supreme Court [about Nadon], after the government pleaded the case before the Supreme Court, and they waited until after the judgment of the Supreme Court.

"It seems there was a simple anger, a personal pique or some kind of political motivation … Who knows what it is?" Potter said, about the attack on McLachlin.

Flanagan, who was in Ottawa Wednesday promoting his recent book Persona Non Grata, said, "If you want to reform the judiciary, you do it through your appointing power which he [Harper] has been doing to a degree, but obviously not with the results he might have liked."

Government is losing Supreme Court cases

The government has lost five cases before the Supreme Court recently — including the striking down of prostitution laws and two of the government's tough-on-crime provisions — even though the majority of judges on the highest court were appointed by Harper.

The Liberal justice critic Sean Casey believes there might be an ulterior motive for Harper's diminishment of McLachlin.

He's asked the government if it is considering invoking the notwithstanding clause, the override power in the Constitution, to get some of its tough-on-crime measures past the Supreme Court.

At a justice committee meeting in March MacKay said, "I'm not aware of any ongoing examination of when to invoke notwithstanding … This is scuttlebutt; this is news to me."

When Casey asked again in question period, MacKay accused the Liberals themselves of using the notwithstanding clause, although this has never happened.

Casey said in an interview, "They're on a losing streak of five. They have this arrow in their quiver which is the equivalent of a political nuclear bomb."

He added the attack on McLachlin might be a tactic to prepare the ground for deploying the notwithstanding clause, something no federal government has ever done.

'Should be an independent commission'

Rocco Galati, the Toronto lawyer who launched a challenge to Nadon's eligibility as soon as he was named to the top court, said in an interview there should be "an independent commission assessing the capability" of the judges.

Galati, the only lawyer in the country to challenge Nadon's appointment on constitutional grounds, decried the secrecy surrounding how judges are selected. "What's wrong with announcing the short list [of nominees] before a judge is appointed?"

Flanagan had a falling out with Harper years ago, and doesn't know why Harper is indirectly accusing McLachlin of acting inappropriately.

He says those in Conservative circles he's talked to think it's "an unwinnable fight." He described the McLachlin court as "about as conservative as you're going to get in Canada."