Harper sidestepped MPs on Supreme Court pick due to Nadon 'leaks'

Concerns over alleged leaks from the all-party panel of MPs that vetted the aborted appointment of Marc Nadon to the Supreme Court led the government to leave MPs out of the loop when it named Justice Clement Gascon to replace him, documents tabled in the House reveal.

In response to a written question filed by Liberal MP Irwin Cotler last June, Justice Minister Peter MacKay confirmed that "it was … felt that certain breaches of confidentiality related to the Nadon appointment had compromised the integrity of the current selection process, and that it needed to be reviewed."

• ANALYSIS | Harper government's legal setbacks suggest strategy of confrontation

According to MacKay, it was Prime Minister Stephen Harper — or, at least, his office — who ultimately made the call to circumvent the Supreme Court selection process his own government had instituted in 2006.

The process "has not been abolished," MacKay added, but is currently "under reconsideration."   

Cotler had requested more details on the process surrounding Gascon's appointment — particularly, the decision to skip the now traditional post-nomination ad hoc committee hearing, which had previously given MPs the opportunity to question the candidate chosen by the prime minister before their appointment was made official.  

In a reply to a related query, also filed by Cotler, on comments he had made in the House about his concerns over "the leaking of information" related to the appointment process, MacKay elaborated on the link between the alleged leak and the scrapping of the selection committee.

"An article by Sean Fine of the Globe and Mail dated May 23, 2014 purported to provide various details about the selection process, including the names of candidates being considered," he noted.

"As a result of this, the government chose not to constitute a selection panel, nor arrange for an ad hoc parliamentary committee for the appointment of J. Clement Gascon to the Supreme Court of Canada."

Source of the leak?

In an interview with CBC News, Cotler dismissed the minister's suggestion the Globe and Mail article necessarily implicated the selection committee in the alleged leak.

"You go back to any judicial appointment, and there's always speculation by journalists," he noted. 

"This is not the first, and it won't be the last —  and it doesn't mean it came from the selection committee. It might have come from other sources, or may have been the journalist's own speculation."

New Democrat justice critic Francoise Boivin, who was a member of the ad hoc committee that questioned Nadon, was similarly unimpressed by the minister's assertion that MPs were to blame for the alleged leaks. 

"The government’s claim is a bit rich considering the alleged leaks appear to come solely from the government benches, and even from the PM and Justice minister themselves," she told CBC News.  

November vacancy

Cotler also pointed to the admission that it was Harper's office, and not MacKay, behind the move to keep MPs out of the process.

"I would have thought the minister of justice would be the central actor in this process, and not a political agency," he noted, and pointed out the documents also state, "parenthetically," that the Justice Department wasn't consulted either.

With another Supreme Court seat set to open up next month, he said, the government appears to have suspended the selection process entirely, at least as far as parliamentary involvement.

"They say it's 'under reconsideration,' and that it 'remains to be determined' what process will be used in future," Cotler noted.

"That means there's no process yet underway for a vacancy coming up in November."