The Complaints Against Chief Justice McLachlin Are Less Than Impressive

Last week, a group of 42 organizations, spearheaded by the Canada Family Action Coalition, collectively filed a letter of complaint with the Canadian Judicial Council to complain about Chief Justice Beverly McLachlin’s participation in the committee which recommended that Dr. Henry Morgentaler receive the Order of Canada. (TheCourt.ca senior editor Diana Younes contributed an excellent article on Morgentaler here.)

It is firstly worth noting that of the forty-two organizations, three (Can American Stone Spreader, Can Am Fabricating and Welding, and A.J. Slinger Service) are not nonprofits seeking to represent popular Canadian opinion, but rather a trio of businesses owned by a single family. The list also considers David Murrell, a professor of economics at the University of New Brunswick, to be an “organization,” as well as Together For Life Ministries, a one-woman operation run by the Rev. Anne Welker. It includes both the Eternity Club and the Eternally Yours Radio and Telecast Ministry, which are both part of the same ministry run by the Rev. Audrey Mabley. Another four (the Evangelical Association, Canada Christian College, the Institute for Canadian Values and Christians United For Israel) are all currently run by Dr. Charles McVety, the current president of the Canada Family Action Coalition. (All of the groups, incidentally, share the same contact information and phone number.) It includes the Niagara chapter of the Canada Family Action Coalition and the Renfrew County Family Action Coalition, both of which are chapters of the national CFAC. It lists REAL Women of Canada and REAL Women of BC as two separate organizations despite their obvious affiliation. It includes Canadian Physicians For Life, the Alberta Pro-Life Alliance Association, the Right to Life Association of Newfoundland and Labrador, the Saskatchewan Pro-Life Association, and Life Canada, despite the fact that the first four of those are affiliates of the fifth.

In short, the list of “42 organizations” is shockingly dishonest even before it says anything, seeking to portray individuals as political organizations and overstating the political impact of the actual organizations by falsely multiplying their number. However, it does not stop there. From the letter:

Under the policy section of the Constitution of the Order of Canada, paragraph 3(b)(ii) disallows a nominee if the person “has been subject to official sanction, such as a fine or a reprimand, by an adjudicating body, professional association or other organization.” The Chair must have been or should have been fully aware that Dr. Henry Morgentaler was sanctioned by the Disciplinary Committee of the Professional Corporation of Physicians of Quebec. In 1976 his medical license was revoked for one year.

The letter is incorrect. The Constitution of the Order of Canada requires the Advisory Council to consider termination of an appointment to the Order of Canada in such a situation; it does not demand it. In this instance, given that Dr. Morgentaler’s sanctions and punishments were delivered for his medical practice, which society at large has since deemed acceptable, it seems likely that the Advisory Council considered the sanctions to be outdated and not relevant in current Canadian society, where support for legalized abortion polls at seventy-five to eighty-five percent.

[P]aragraph 3(b)(i) requires rejection if “the conduct of the person constituted a significant departure from generally recognized standards of public behaviour which is seen to undermine the credibility, integrity or relevance of the Order.” Dr. Morgentaler admittedly broke Canadian law for 19 years and his appointment has severely undermined the credibility of the Order and regard for the law of the land.”

Again, this is untrue; p.3(b)(1) only requires the Council to consider termination of the appointment. Further, one might point out that in such cases, traditionally one considers whether the person’s behaviour would constitute a significant departure from current recognized standards of public order, which is why this portion of the Order’s Constitution uses the word “constitutes,” rather than “constituted,” as the CFAC’s letter claims. Abortion rights in Canada are no longer particularly controversial, so Morgentaler’s actions, in retrospect, are not a significant departure.

Chief Justice McLachlin knows that the Constitution’s clause 7(4) requires that “The Council shall invite the Deputy Minister of the Department of Foreign Affairs and International Trade to participate in the review of nominations for honorary Companions, Officers and Members.” The Chair intentionally did not obey this section of the Constitution.

This is because there is no Deputy Minister of the Department of Foreign Affairs and International Trade. The Ministry became a dual ministry (a Ministry of Foreign Affairs and a Ministry of International Trade) in 1995, and although it has since become one ministry again, there are still separate Ministers for each of the two aspects, and with them, two Deputy Ministers. The Constitution’s Clause is outdated and has not yet been updated to reflect these changes (most likely since current governmental trends lead one to believe the two ministries will soon be recombined into one).

Furthermore, the Constitution of the Order only requires that the Council invite the Deputy Minister to participate in the review of nominations for honorary nominations to the Order. Honorary nominations are given to foreign citizens (Nelson Mandela, for example, is an honorary Companion of the Order of Canada), which is why the Deputy Minister for Foreign Affairs and International Trade is asked to weigh in. Henry Morgentaler, last I checked, is not a foreign citizen.

Long standing Order of Canada regulations do not allow a new Advisory Council to overrule the decision of a previous Council. Two past Advisory Councils rejected Dr. Morgentaler as a nominee. Chief Justice McLachlin violated this and brought forward and approved Henry Morgentaler.

This is either ignorant or dishonest. The Council’s approval of Morgentaler in 2008 is not an “overruling” of previous Councils, no more than the Academy Awards recognizing Al Pacino in 1993 for his performance in Scent of a Woman “overruled” his failures to win an Oscar for The Godfather or Dog Day Afternoon. Justice McLachlin did not retroactively make Henry Morgentaler a member of the Order of Canada.

In the history of the Order of Canada, Advisory Council consensus has been required for approval of a nominee. At least two voices of dissent were present, however the Chair ignored the consensus norm and allowed the nominee by a vote process.

This would be noteworthy, but not explicitly disallowed under the Order’s Constitution, were there a tradition of consensus. However, according to Chief Justice McLachlin and others, there is no such tradition. Thus we have a “he-said-she-said” situation, where on one side you have a deeply respected Chief Justice of the Supreme Court and on the other an organization which attempted to represent construction companies as pro-family political committees.

The votes of dissent represented democratic voices. The Clerk of the Privy Council and the Deputy Minister of the Department of Canadian Heritage act according to the elected Government and the people of Canada. By altering process in the face of democracy the unelected Chair overruled the votes of the elected representatives.

Oddly, I don’t remember voting for the Clerk of the Privy Council or the Deputy Minister of the Department of Canadian Heritage, who were appointed by a minority government that entered office with slightly more than forty percent of the seats in Parliament and thirty-six percent of the popular vote, and who represent a populace who – and this bears repeating – support legalized abortion by a vast margin.

7. The Chief Justice compromised the Supreme Court of Canada’s neutrality, impartiality and integrity by overriding regulations to approve of abortion and Henry Morgentaler’s actions. The Chair’s vote and actions are clear indicators of her position on abortion. The current New Brunswick case regarding funding of Morgentaler’s private clinics before the court may have been impacted by her actions. There is real possibility that this case will come before the Supreme Court. If a case involving abortion or Henry Morgentaler comes to the High Court during Beverley McLachlin’s tenure the Chief Justice’s judgement is predetermined.

Of all the allegations contained within this deeply spurious letter, this is the most serious, which is no doubt why it led Chief Justice McLachlin to take the rare step of publicly addressing the matter. She explained that she did not lead discussion or even vote for Morgentaler, but merely chaired the meeting to make sure that the vote is conducted fairly. In response to this eminently reasonable answer, the Canada Family Action Coalition complained that she did not address their spurious complaints and insulted her repeatedly.

The Canada Family Action Coalition and their “42 organizations” have misrepresented themselves, misrepresented Chief Justice McLachlin and misrepresented the law. This is dishonest. More ironically, it is also un-Christian: as the Bible states in Isaiah 8:20, “To the law and to the testimony: if they speak not according to this word, it is because there is no light in them.”