652 lawyers are wrong

Legal axioms have a place both in inspiration and application.

When I arrived at the old UBC Law building in 1981 the first thing I saw at the front doors was the phrase “fiat justitia ruat caelum” – “let justice be done though the heavens may fall.” For those of us who are still at least a little idealistic, those words continue to ring with challenge and inspiration.

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Another application challenge for law and life is found in Micah 6:8 which reads, “He has shown you, O mortal, what is good. And what does the LORD require of you? To act justly and to love mercy and to walk humbly with your God.”

There is another axiom that is considered crucial to the practice of law. It states, “not only must justice be done, it must also be seen to be done.”

A few days ago 652 lawyers sent a letter to Prime Minister Stephen Harper stating that they “deplore the unprecedented and baseless insinuation by the Prime Minister of Canada that the Chief Justice engaged in improper conduct.”

The situation may well be unprecedented. However, I disagree with the judgment of the 652 for two reasons: the facts and the law.

The facts, as presented by the Chief Justice’s executive legal officer in a press release are: the Chief Justice contacted the Minister of Justice to advise of a potential concern if a judge from the Federal Court was appointed to the open Quebec seat on the Court; and, the Chief Justice contacted the Prime Minister’s Chief of Staff to express the same opinion. It is not unexpected that the Chief Justice offer her advice to the Parliamentary committee considering candidates for the Court. It is unusual that she would contact the Minister of Justice or the Prime Minister’s Office.

Additional facts, as presented by the Minister of Justice and PMO are: the Chief Justice asked to speak with the Prime Minister, which he declined; and, the Government sought the opinions of former Supreme Court Justices Ian Binnie and Louise Charron, as well as the opinion of Canada’s most acclaimed constitutional law expert Professor Peter Hogg, who literally wrote the book. With supporting advice from these and other constitutional law experts the appointment was made.

I agree with one statement in the letter. “An independent judiciary is vital to the health of any democracy and a foundational tenet of Canada’s constitutional order and the rule of law.”

Here’s a simple question for my esteemed colleagues in the law. What advice would you offer a judge intending to decide on a case if you knew he had offered preliminary advice on the case that was now before his court? The answer is found in the simple maxim, “not only must justice be done, it must also be seen to be done,” a principle which has been repeatedly reinforced in decisions of the courts at every level. It is why judges have, and exercise, the option to recuse themselves from sitting on cases in which they have, or may be perceived to have, a conflict of interest.

Justice may have been done in the decision concerning the appointment of Justice Nadon – although, recently retired Justices Binnie and Charron would apparently side with Justice Moldaver in disagreeing with the Chief Justice’s decision in the case – but are there questions about whether justice was seen to have been done?

Only the seven judges who met in the boardroom of the Supreme Court of Canada will know how much of a role the Chief Justice played in the decision of the Court, or the written reasons of the majority. Did they know Chief Justice McLachlin had expressed an opinion on the matter prior to the appointment of Justice Nadon? To the committee? To the Minister of Justice? To the PMO? Would the hearing and decision have turned out differently without her involvement?

It’s too late for the Chief Justice to recuse herself from the case. However, her participation in hearing the case and in writing the decision of the majority of the Court on the very issue on which her executive legal officer indicates she initiated contact prior to the appointment suggests that it would likely have been the wiser course of action to have not participated.

I attribute the best of intentions to Chief Justice McLachlin, and believe she is a woman of integrity; however, her presence on the bench for this case was neither wise nor necessary.

There are times when each of us believes we are doing the right thing; and, stand steadfastly by that conviction even in light of contradictory opinion from others or the benefit of hindsight. That reminds me of a decision in a case from centuries past that proffered a maxim which may also be applicable in this situation, “Let him who is without sin among you be the first to throw a stone.” (Gospel of John 8:7)