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Duelling statements over Nadon appointment reveal PMO fight with top court

Beverly McLachlin, Chief Justice of the Supreme Court of Canada, delivers a speech in Ottawa, Tuesday, February 5, 2013. The Prime Minister's Office says Stephen Harper refused to take a call from the country's chief justice about who should be allowed to sit on the Supreme Court of Canada. THE CANADIAN PRESS/Fred Chartrand

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Beverly McLachlin, Chief Justice of the Supreme Court of Canada, delivers a speech in Ottawa, Tuesday, February 5, 2013. The Prime Minister's Office says Stephen Harper refused to take a call from the country's chief justice about who should be allowed to sit on the Supreme Court of Canada. THE CANADIAN PRESS/Fred Chartrand

OTTAWA - The Prime Minister's Office exposed an unprecedented public spat with the chief justice of the Supreme Court on Thursday, issuing a statement suggesting Stephen Harper refused to accept a phone call from Beverley McLachlin about a judicial appointment.

The extraordinary statement came on the heels of a media report that said Conservative government members have become incensed with the top court after a series of stinging constitutional rebukes.

Among those government setbacks was a court ruling that Justice Marc Nadon, Harper's most recent pick for the top bench, was not qualified under the Supreme Court Act.

The nine-member court has been short one justice for almost a year as a result of the bungled appointment.

Harper's chief spokesman issued a statement late Thursday saying that McLachlin "initiated" a call to Peter MacKay, who was justice minister at the time, to discuss the Nadon appointment at some point during the selection process.

"After the minister received her call he advised the prime minister that, given the subject she wished to raise, taking a phone call from the chief justice would be inadvisable and inappropriate," Jason MacDonald said in the statement.

"The prime minister agreed and did not take her call."

The PMO's statement was released while McLachlin was participating in an event at the University of Moncton where she was delivering a speech. She was unavailable for comment.

Earlier Thursday, however, the Supreme Court's executive counsel issued his own extraordinary statement, saying McLachlin's advice had been sought by the committee of MPs vetting possible Supreme Court nominees.

"The chief justice did not lobby the government against the appointment of Justice Nadon," said the statement from Owen Rees, the court's executive counsel.

"She was consulted by the parliamentary committee regarding the government's shortlist of candidates and provided her views on the needs of the court."

McLachlin's office pointed out to both the justice minister and to the prime minister's chief of staff that appointing a Quebec justice from the Federal Court of Appeal could pose a problem under the rules — an issue Rees said was "well-known within judicial and legal circles."

Rees wrote that McLachlin "did not express any views on the merits of the issue."

It is also unclear whether the chief justice ever asked to speak directly with the prime minister on the matter.

What is clear is that as early as last August, the Harper government knew the appointment of Nadon was legally problematic.

The Supreme Court Act clearly lists the courts where the three Quebec representatives on the bench can be appointed from. Neither the Federal Court nor the Federal Court of Appeal are among them.

The government sought an opinion from Ian Binnie, a retired Supreme Court justice, on whether Nadon's past membership on the Quebec bar qualified him for the top bench. Binnie's opinion was that it did, an opinion that was endorsed by another retired Supreme Court judge and a constitutional expert.

However after Nadon was sworn in last October, Toronto constitutional lawyer Rocco Galati challenged the appointment. In March, the top court issued a 6-1 ruling that declared Nadon ineligible.

Although Harper accepted the court ruling at the time, the statement from his office Thursday continued to question that judgment.

As MacDonald wrote in the PMO statement, "None of these (government-commissioned) legal experts saw any merit in the position eventually taken by the court and their views were similar to the dissenting opinion of Justice Moldaver," the lone dissenter in the 6-1 Supreme Court judgment.

NDP Leader Tom Mulcair described the dissent as typical of Harper's Conservative government.

"It's too bad for the Canadian public because, at the end of the day, it can rely only on its democratic institutions," Mulcair said.

"(Harper) always sees a conspiracy as soon as someone says no to him."

A leading Supreme Court expert said the whole spectacle was unusual.

"There is nothing unusual about contacts between the chief justice and the minister of the justice and the prime minister. Indeed, regular contact is healthy for the relationship between the branches of government and the administration of the country's top court," said Adam Dodek, vice-dean of the University of Ottawa law school.

"Every minister of justice in this Conservative government and in its predecessor Liberal governments going back at least 15 years has stated publicly that they have consulted with the chief justice of Canada about appointments to the Supreme Court of Canada. So where is the issue and where is the problem here?"

Follow @bcheadle and @mblanchfield on Twitter

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