Shortly after the hearing was completed, we got a chance to speak with Senior Counsel Marshalleck who is representing the current Comptroller of Customs. Via teleconference, he engaged us in a conversation of the outcome, and what comes next in the case:
Andrew Marshalleck, SC, Attorney for Estelle Leslie
"I can't say that I am surprised given the length of the period of time for consultations. I expected that so short a period could not have been justified except by way of trial and that leave for the claim to proceed would more likely and not have been granted. I can't say that I am surprised that the interim relief claim was refused. I think the interim claim was ambitious on the part of the claimant and it would have been a stretch for the court to unseat the current appointee and leave it vacant so that Mr. Haylock can then vie for it."
Reporter
"We take note of the fact that you resisted the application on the grounds that the governor general's actions, the instruments of appointment and designation were beyond scrutiny or beyond challenge due to these clauses in the constitution."
Andrew Marshalleck, SC, Attorney for Estelle Leslie
"The judge didn't decide yet at the end of the day. He sighted some material that the contrary position is arguable and it is indeed arguable. The judge is not unique in his disposition towards clauses. Most courts treat them in that fashion. There's been a tendency to find ways around them every time they raise so that it's again not surprising that a final determination on an argument would require trial and a more fuller ventilation. At this stage you only need to establish that it's arguable."
Reporter
"Based on your reading of the law and your experience must it be that consultation has to result in the public services commission agreeing with the appointment with a specific person the government wants?"
Andrew Marshalleck, SC, Attorney for Estelle Leslie
"The consultation isn't about who is to be appointed. The consultation is whether or not the post of comptroller of customs is to be a section 107 post under the constitution. That's the consultation. The argument for designating it is to the office directly under the control of the prime minister, given the provisions of section 107 and to take it away from the public services commission and the argument for doing so is that the public service commission operates under too many constraints and often times can't act as would be required in relation to such an important post. There can be no challenge to the decision of the prime minister to choose Miss Leslie over Mr. Haylock. The idea is that if the decision as to who to appoint is left to the public service commission then Mr. Haylock think he stands a better chance, given the disposition of the public service commission, but the designation of the post strips that decision away from the public service commission and rest it with the governor general acting accordance with the advice of the prime minister."
The case will now proceed to an expedited trial. We'll keep following it very closely.
