Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m J u l y 2 0 1 4 17 O P I N I O N make, the Five Cases do not signal a con- stitutional revolution. The Warren effect can be overestimated. Adam Liptak, in an important recent article about SCOTUS in The New York Times, concluded today's U.S. Supreme Court is "closely divided along party lines," and said, "The percep- tion that partisan politics has infected the court's work may do lasting damage to its prestige and authority and to Americans' faith in the rule of law." Let's just wait and see how the SCC behaves over the long haul. Perhaps it will emulate SCOTUS. Another of my long-standing com- plaints has been no one pays much atten- tion to the Supreme Court. That certainly wasn't true this spring, quite apart from the fuss about the Five Cases. As the weather finally improved, and sensible Canadians began to dream of firing up the barbe- cue, some spent a lot of time wringing their hands over whether the chief justice had — shudder — behaved "inappropri- ately." In July of last year, long before it was announced Nadon was the government's choice to fill the Quebec vacancy aris- ing from the retirement of Morris Fish, McLachlin raised technical constitution- al concerns with Justice Minister Peter MacKay and Harper's chief of staff about a federal court judge's eligibility for a Quebec seat. In May, the prime minister, presum- ably smarting from the Five Cases, lashed out and criticized McLachlin, commenting on her alleged interference, "I do not think that's the appropriate way to go." Professors pontificated. Editorialists thundered. Vague hints were given about what might have gone on behind the scenes. There were whispers that, oh yes, there was bad blood all right, the chief justice thought Nadon's choice was an insult to the court and went into a fury when she found out about it, and the prime minister was fed up to the back teeth with a jumped-up court destroying his legislative program. Stalwarts of the bar came to McLachlin's defence, signed petitions, and wrote letters to editors say- ing it was outrageous to question the chief justice's judicial probity. Really? Really? Hasn't everybody got something better to do? First of all, the chief justice did absolutely nothing wrong. Presumably she just wanted to warn the government about the possibility of exactly the kind of mess it later created. This is hardly "lobbying" against the appointment of Marc Nadon. And, anyway, the chief justice is traditionally consulted during the appointments process. The prime minis- ter's criticism of her conduct is absurd. But, likewise, the self-righteous chest thumping by the legal profession and some newspa- pers attributes altogether too much impor- tance to a silly incident and gives it a sig- nificance it doesn't deserve (although I'm sure the chest thumping felt good). All this does remind us of something many Canadians, including many politi- cians, still find uncomfortable. The 1982 Constitution changed the way we are governed. Unelected judges are now as important as the people we vote for. Get used to it, people. That's the way it is, and that's the way it's going to stay. Philip Slayton is president of PEN Canada, an organization of writers that protects and promotes freedom of expression. Follow him on Twitter @philipslayton. LIVE EVENTS DESIGNED FOR CORPORATIONS AND LAW FIRMS Thomson Reuters Legal Executive Institute is the leading provider of CLE events for the legal industry. Below you'll find upcoming live conferences that might be of interest to you and your team. You can register for yourself and any members of your department. Registration can be applied to anyone in your company – a different person could attend each event. Drafting Clearer Contracts September 11 – Boston, MA October 9 – Minneapolis, MN October 30– Washington DC November 6 – New York , NY Decmeber 11 – San Francisco, CA $895 Cloud Computing: A Practical Approach September 17 – New York, NY $795 DISCOUNTS AVAILABLE Individual Discount – Receive 15% off any individual program. Use promo code 15CORPORATE at checkout. Group Discounts – We have great group discounts available for you and your colleagues. The more events you purchase, the more you save: ȕ1VSDIBTFSFHJTUSBUJPOTHFUPGG ȕ1VSDIBTFSFHJTUSBUJPOTHFUPGG Call 1-800-308-1700 for more information or to register. 2014 Corporate Whistleblowing Forum September 30 - New York $595 The 2014 Thomson Reuters Supply Chain Sustainability Summit October 15 – New York , NY $795 Untitled-4 1 14-05-07 4:43 PM

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