Speaking up versus standing down: Chief Justice Beverley McLachlin’s conundrum

OTTAWA – When your reputation is being attacked from behind a cloak of anonymity, do you stand down or do you engage?

That’s one of the top questions swirling around the current contretemps between Supreme Court Chief Justice Beverley McLachlin and the Prime Minister’s Office.

Among Conservatives, an internal narrative has emerged that McLachlin herself is to blame for fuelling the controversy, having responded to a query by a National Post reporter in the first place.

The ensuing Post column cited anonymous senior Conservatives, including a cabinet minister, who accused her of lobbying against Stephen Harper’s latest pick for the Supreme Court and of bad-mouthing the government.

Once McLachlin weighed in to defend herself, the PMO lashed out with an unprecedented statement that further questioned McLachlin’s purported actions — something Harper was forced to do, according to some Conservatives.

Conservative MP Stephen Woodworth gave voice to the perspective of others within caucus when he spoke to reporters earlier this week.

“First of all, it’s my understanding that this issue was not initiated by the Prime Minister’s Office; my understanding is that somehow the media got an idea from the chief justice’s office that she had called the PMO,” said Woodworth.

“The prime minister, I think, was attacked as having inappropriately refused to take the call. Once the prime minister is attacked, he has to respond.”

It helps to unpack exactly the precise sequence of events that led to the dispute becoming a major national controversy.

First, National Post columnist John Ivison approached the Supreme Court for comment on a column he was preparing to publish that would quote senior Conservatives including an unnamed minister.

“Rumours about Beverley McLachlin, the chief justice, are being shared with journalists, alleging she lobbied against the appointment of Marc Nadon to the court (an appointment later overturned as unconstitutional),” Ivison wrote on May 1.

Whether those senior Conservatives were strategically planting a story to discredit or bait the chief justice, or just venting in an unco-ordinated way, is unclear.

The court responded with a statement: “Chief Justice McLachlin does not respond to innuendo, but she will set the record straight.” It said McLachlin advised Justice Minister Peter MacKay and Harper’s chief of staff Ray Novak that there might be legal issues with their choice for a Quebec judge.

The statement, which did not make clear when the advising took place, was later circulated among other news organizations.

Several hours later, the Prime Minister’s Office weighed in with a curiously constructed statement. It began with a line that gave one the sensation of walking into a conversation mid-stream.

“Neither the prime minister nor the minister of justice would ever call a sitting judge on a matter that is or may be before the court,” the statement from chief spokesman Jason MacDonald began.

Wait a second. What call? What matter before the courts?

The statement suggested McLachlin had tried to set up a call with Harper, but that MacKay determined “taking a call from the chief justice would be inadvisable and inappropriate. The prime minister agreed and did not take her call.”

The statement from the PMO elevated the story to an unprecedented spat between the judiciary and the executive branches of government. What followed was a solid week of articles, question period volleys, editorials, opinion pieces and hours of talk-show fodder.

Should McLachlin have engaged in the first place, perhaps allowing a story with anonymous sources to die out? Or was the attack on her integrity too great to let stand, even in a single newspaper column?

Susan Harada, associate journalism professor at Carleton University, wrote a profile of McLachlin in The Walrus magazine in 2009 and covered the court in the past as a Parliament Hill journalist.

She said knowing what she does about the chief justice, McLachlin’s response was not surprising.

“For her, the integrity of the court is paramount, and if there’s going to be a story out there, even with anonymous sources that suggest that the court in any way interfered improperly, it’s not surprising that there was a response,” Harada said.

Jane Shapiro, corporate and crisis communications expert with Hill and Knowlton Strategies, said such questions come up frequently among corporate clients. They wonder what they should do when confronted with either anonymous or on-the-record attacks, particularly on social media.

Shapiro says one of the first steps is to determine the credibility of the source, and whether responding to the attack is only going to give it credibility.

Responding might also be fuelling a story that might otherwise go away.

“It’s part of what organizations should be thinking about when they make decisions: is this likely to have traction if we don’t weigh in? I think it’s fair to say that media enjoy situations where there are two points of view, where both sides participate,” said Shapiro, who did not comment specifically on the Supreme Court matter.

“It’s harder if you only have one side of the story, and so organizations really should be looking at, do we fuel the story by joining it, and that’s a consideration. Sometimes the answer is, we don’t have any choice, and sometimes the answer is, let’s wait and see.”

Harada said that in this case, it wasn’t necessarily a bad thing for McLachlin to have given the story more legs. The story might have continued to grow with or without her commentary.

“It actually puts out into open discussion something that otherwise would just be murmurs and innuendo and anonymous sources —stories actually circulate because we have social media and the Internet,” said Harada.

“At least this puts this out there front and centre.”