Dennis Baker and I published this in the National Post on May 7, 2014.

Commentary on the tiff between the Prime Minister and the Chief Justice regarding the abortive appointment of Marc Nadon to the Supreme Court has, in the main, gone easy on Chief Justice Beverley McLachlin. Too easy.

The issue concerns calls placed by the Chief Justice to the government about the possible ineligibility of Justice Nadon for appointment to one of the three Quebec seats required under section six of the Supreme Court Act.

Section six requires the Quebec judges to be appointed “from among judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province.” Justice Nadon had never held one of the specified judicial positions — he was a judge of the Federal Court — so the question was whether he qualified as coming “from among” Quebec’s “advocates.” Was it enough that he had been trained in Quebec and practised law there for almost two decades, or did he have to be a current advocate in the province?

McLachlin says that she called Justice Minister Peter McKay and Stephen Harper’s Chief of Staff, Ray Novak — and planned also to call or meet with the Prime Minister directly — merely to “flag” this issue of eligibility. Nadon had not yet been selected as the nominee and the case challenging his appointment had not yet been launched, so she was not communicating about an issue being litigated before her court. Knowing that the issue might come before her Court, however, McLachlin did not, at this early point, “express any opinion as to the merits of the eligibility issue”; she merely “wished to ensure that the government was aware” of it.

McLachlin’s account is difficult to square with the language she (and her five colleagues in the majority) used when Justice Nadon’s case was finally decided. At that point, she concluded that a “requirement of current membership in the Quebec bar has been in place — unambiguous and unchanged — since 1875.”

Unambiguous! Can we believe that without also believing that McLachlin had an “opinion on the merits” at the time she made the calls, even if she did not “express” it? Can one be open-minded about a question the answer to which is “unambiguous”?

Indeed, having a strong opinion about Nadon’s ineligibility might explain why McLachlin made two calls and explored direct communication with the Prime Minister. After all, only one call was needed to “ensure that the government was aware” of the issue. Several escalating calls — especially coming from the person who might help ultimately resolve the issue — suggests something more substantial than a mere “heads-up” about a still-open question, and could be perceived as a strong signal of where she stood on the eligibility controversy.  Such a signal would go beyond the Chief Justice’s administrative responsibility to simply alert the government of potential difficulties ahead.

Moreover, if the Chief Justice believed that Nadon was unquestionably ineligible, she probably had an obligation to do more than flag the issue or send obscure signals. As the political scientist Emmett Macfarlane has noted, if the government made the “unambiguous” mistake of proposing a non-lawyer for appointment to the Court, the sitting judges would refuse to swear in the nominee, and would presumably warn the government of this consequence. If Nadon’s nomination was a similarly unambiguous error, the Chief Justice should have issued such a warning.

Instead, the Court did swear in Justice Nadon, with the Chief Justice presiding, which indicates that his ineligibility was not, in fact, “unambiguous.” Certainly Justice Moldaver, in his powerful dissent, concluded that Nadon was eligible. So did former Supreme Court justices Binnie and Charron. And so did Peter Hogg, who comes close to being an honorary Supreme Court justice. There would have been no such disagreement about the truly unambiguous nomination of a non-lawyer.

So, perhaps McLachlin did have an open mind about a difficult and ambiguous issue of eligibility at the time she “flagged” it to the government. But if that was so, her subsequent portrayal of the answer to this question as “unambiguous” seems a disingenuous exaggeration — just as merely flagging a question that has an unambiguous answer seems a disingenuous evasion.

Might it be that the Prime Minister is not the only one playing political games?