The Politicization of Canada’s Supreme Court

GEO CASUALWe should have known that the failed appointment of Mr. Justice Marc Nadon to Canada’s Supreme Court of Canada was just the beginning of the politicization of Canada’s Supreme Court.

It was surprising to many that Prime Minister Stephen Harper and Chief Justice Beverly McLachlin of the Supreme Court of Canada, sparred publicly, albeit gently, over allegations that the Chief Justice had improperly interfered with the executive branch of government’s appointment of Federal Court of Appeal Justice Nadon to Canada’s highest court.

Ultimately, the issue was thrown back to the high court when Toronto lawyer Rocco Galati successfully challenged Nadon’s appointment before Quebec’s Federal Court, a move that forced Mr. Harper to obtain the opinion of the judges who were now Justice Nadon’s colleagues in Ottawa.

The Court’s ruling against Justice Nadon’s appointment was seen as a “slap in the face” to Mr. Harper, and the liberal media took obvious delight in putting Harper “in his place”, amid nasty insults and demeaning comments directed at the beleaguered Nadon.

Justice Nadon slinked back to the Federal Court, more battered and bruised than when he departed.

But surely this was a one-off, not to be repeated? How I wish that were so. Mr. Harper’s recent appointment of Suzanne Cote is now being slammed by certain Canadian “law students, lawyers, and law professors”, a whopping 350 of them.

They are apparently upset that Madam Justice Cote was not vetted by a multi-party parliamentary committee prior to her appointment. They must have short memories, because when Mr. Harper introduced a vetting process for the first time in Canada in 2006, with the appointment of Mr. Justice Rothstein, many anti-Conservative lawyers and law professors criticized the Americanization of the appointment process.

Gallingly, the naysayers are now at work trashing Ms. Cote’s reputation, alleging misconduct in respect of two cases she handled as a lawyer.

In a class-action lawsuit brought by ill and addicted smokers against several multi-national tobacco companies, Ms. Cote acted for Imperial Tobacco commencing in 2010. The lawsuit began more than a decade before her involvement, nonetheless, they blame her for the delay and also claim an “abuse of process” in the multiplicity of allegedly frivolous applications and appeals.

It’s called “hard-fought” litigation folks and I expect the plaintiffs are giving as good as they get, with their own phalanx of high-priced lawyers.

Their second complaint is in a letter to the Canadian Judicial Council, where they suggest that Ms. Cote’s conduct as independent counsel for the Inquiry panel hearing the Judge Lori Douglas bondage scandal deserves censure. The case revolves around nude photos of Judge Douglas, taken by her husband and posted by him online.

Ms. Cote’s sin is that she argued that the photos must be entered as evidence in the Douglas Inquiry, a position opposed by Judge Douglas and called “callous and gratuitous” by Ms. Cote’s critics.

The panel admitted the photos and shortly thereafter, Ms. Douglas announced her upcoming resignation and the Inquiry adjourned. The complainants suggest that Ms. Cote’s conduct was demeaning and forced Judge Lori Douglas to resign.

The executive director of the Canadian Judicial Council properly belittled the complaint, spearheaded by second-year law student Esther Mendelsohn of Osgoode Hall Law School, saying:

“I hate to say something like this, it’s not my style, but a second-year law student saying one of the most esteemed lawyers in Canada didn’t do things the way she should have is something I reject
entirely.”

Given Ms. Mendelsohn’s intemperate remarks, she must be planning to skip any Supreme Court of Canada litigation in the future.

Lawdiva aka Georgialee Lang

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2 thoughts on “The Politicization of Canada’s Supreme Court

  1. Part of the backdrop is that there is the mistaken impression among many in the media and Opposition MPs, that Parliament is the government. Rather, it is the independent place where the government comes, to get permission to tax and spend the people’s money, and to get legislation approved before being made into law. The Crown makes the law, after the long process. Other misconceptions, are spill over notions of a “balance of power” idea, from the American System which does not really apply in Canada. The Supreme Court is all we have as a final interpreter of law, next to having a general election. However Parliament is Supreme. Background noise, is that the Supreme Court was wrong in a few cases in the last few years, and its maneuvering has undermined it moral authority with many who are close and care about such things. Improvement is needed at the Supreme Court.

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