The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50801
TO P CO U R T TAL E S BY PHILIP SLAYTON A change is in order I It shouldn't be the chief justice of the Supreme Court heading the Order of Canada Advisory Council, but it's the order's constitution, not the chief justice, that needs changing. t's very unusual for Chief Justice Beverley McLachlin to come under personal attack. She's widely respected. But some bloggers and newspaper columnists went after McLachlin when abortion doctor and activist Henry Morgentaler was awarded the Order of Canada earlier this year. Recipients of the Order are selected by an advisory council chaired by the chief justice. Canadians who detest Morgentaler and what he stands for (and there's quite a lot of them) pointed an angry finger at Beverley McLachlin, and attacked her imagined role in the selection process. No one in Canada inspires divisive passions the way Mor- gentaler does. After he was appointed to the Order of Canada, Rex Murphy wrote in The Globe and Mail, "Henry Morgen- taler is the most public face from one side of the most po- larizing issue in Canadian religious, social, and political life." In the Montreal Gazette, columnist Henry Aubin commented that Morgentaler is "the most vocal proponent of one of the most socially radical causes of our time. In honouring such a proponent, the Order is also plainly honouring the cause itself. . . . The Order thus takes an extreme position on a moral issue that deeply divides Canadians." What was the chief justice's role in appointing Morgentaler? There has been considerable conjecture. A Globe and Mail sto- ry reported, "Chief Justice McLachlin drove the nomination, which was opposed by the two government members on the nine-member committee." Herman Goodden, a pro-lifer and longtime Morgentaler basher, commented in the London Free Press, "It's now known that Supreme Court Chief Justice Bever- ley McLachlin railroaded the Morgentaler honour. . . ." 28 OC T OBER 2008 www. C ANADIAN Law ye rmag.com The governor general's official web site says of the Order of Canada Advisory Council: "The current chair decided at the outset that her role would be best fulfilled by staying neu- tral on individual nominations. . . . The practice of the chair is not to vote or to take a position for or against nomina- tions, except on the rare occurrence of a tied vote." At a press conference she gave in August at the Canadian Bar Associa- tion annual convention, McLachlin confirmed that she did not vote on the Morgentaler nomination, and that it is her practice not to promote a particular candidate. She described rumours to the contrary as "misinformation," and said that she was "reasonably comfortable about the process." The waters were muddied further by the fact that Morgen- taler had been the successful appellant in a famous Supreme Court of Canada case, R. v. Morgentaler, decided in 1988. The court struck down, as contrary to the Charter of Rights and Freedoms, provisions of the Criminal Code that made it an offence to perform an abortion except under very limited circumstances. Coincidentally, the 20th anniversary of this decision was being celebrated (by some) at the same time as Morgentaler's Order of Canada was announced. One can guess that pro-lifers felt salt being rubbed into their wounds. But what has all that got to do with the chief justice? The an- swer, objectively speaking, is nothing at all. In 1988, McLach- lin did not sit on the Supreme Court of Canada (she was ap- pointed in 1989). So far as anybody knows, Morgentaler will not be back before the court. Somehow, though, the various interwoven Morgentaler connections, loose as they are, made people nervous.