How the Supreme Court and Tom Mulcair made something out of not much

An unnecessary tempest over the Patriation Reference

Emmett Macfarlane
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Late Friday the Supreme Court released a statement regarding its internal investigation into allegations—published in a recent book by scholar Frédéric Bastien—that two of its justices made inappropriate disclosures about the Court’s deliberations regarding the 1981 patriation reference case.

Drawing on documents obtained from the British government through freedom of information requests (Bastien also received Canadian documents, but they were apparently heavily redacted), the book alleges that, in 1980, former Justice Willard Estey informed British officials the Court would be addressing the patriation issue, which centered on whether the federal government under Pierre Trudeau required provincial consent to seek constitutional change (at the time, the Canadian Constitution did not have its own amending formula: any changes thus required an Act of the British Parliament). More significantly, it is alleged that then-Chief Justice Bora Laskin revealed to British and Canadian government officials that the Court was divided on the issue and also gave his two cents on when he thought a decision would be forthcoming.

If the allegations are true, Estey’s and especially Laskin’s actions were completely inappropriate. The Court jealously guards the substantive details of its internal decision-making in order to preserve its institutional independence and impartiality. Details about how specific cases are rendered could threaten the institution’s legitimacy, particularly in the context of the patriation reference, which led to constitutional negotiations in which Quebec was left the odd province out. That case—one of the Court’s most politically explosive—continues to feed nationalist sentiment in Quebec.

But while the allegations may create a disappointing black mark on the reputation of two former judges, they do not come close to calling into question the validity of the Court’s ruling. There is no sense that the personal communications described in the book were designed to influence the Court’s decision. Nor, it should be noted, were they successful if that was the aim. Even if we twist this story into one of crazy conspiracy, where Laskin was working with Trudeau to help bring about patriation, they did not succeed: Laskin was on the losing side of a Court decision that said Trudeau was bound, by convention though not by law, to seek substantial provincial consent.

Nevertheless, the book’s allegations unsurprisingly caused an uproar in Quebec, where the idea of betrayal prospers (the story of the kitchen accord meetings where the federal government got all remaining provinces on board, except Quebec, is recalled by some Quebec sovereigntists as “the night of the long knives”).

Quebec’s National Assembly unanimously called on Ottawa to release all documents regarding the patriation process and to investigate the claims. This demand was probably inevitable. Sovereigntists make hay out of any hint that Quebec’s interests were harmed by federal institutions, and federalist provincial parties in Quebec have to make a show of “confronting Ottawa” just to keep pace. More disappointing was that the federal leader of the Official Opposition, Tom Mulcair, voiced support for the motion as well. “It’s what everyone wants,” he said.

Imprudently, and perhaps far too self-conscious about a perceived threat to its reputation, the Supreme Court then announced it was conducting an internal investigation.

Nothing was going to come from this. All of the judges involved in the 1981 case are dead. There were unlikely to be phone records. Estey and Laskin were unlikely to have kept their own records about having inappropriate conversations. Why the Court announced an investigation into some rather vague allegations of misconduct by two deceased judges is a bit of a puzzle. And yesterday the Court released an entirely predictable short statement: “The Supreme Court of Canada conducted a thorough review of its records and it does not have any documents relevant to the alleged communications by former Chief Justice Bora Laskin and former Mr. Justice Willard Estey in relation to the patriation of the Constitution of Canada. This concludes the Court’s review.”

Enter Mulcair. The Court’s statement, he said, was simply not credible. “You won’t find something you don’t ask for. Those documents were given to Mr. Bastien by the Canadian government … and large elements were taken out. So the first thing that one would have expected the Supreme Court to do is to ask for the full version, read them, and start an investigation,” he said. “Instead, what they seem to have said from this cryptic, one-paragraph statement, is: ‘We looked in our filing cabinet and we don’t have them.’ … It’s a clear indication that the Supreme Court had no intention all along of ever dealing with this issue seriously. But unfortunately, it is an extremely serious issue.”

The implication of Mulcair’s comments is either that the Supreme Court is lazy and incompetent or that it is hiding something. Coming from the leader of the Official Opposition, and an aspiring prime minister, these comments have more potential to harm the Court than Bastien’s book. They are irresponsible, not only for the attempt to sully the Court’s integrity, but also for feeding the notion that the patriation process itself was illegitimate.

It is deeply troubling that a federalist leader would pour salt in this old wound. The comments serve nothing except raising doubts about the 1982 Constitution itself (which public opinion polls routinely show to be as popular, or even more popular, in Quebec than the rest of Canada—even if many in Quebec were angered by the process leading to it). And it feeds a pattern by the NDP under Mulcair of questionable judgment as it pertains to the Constitution and Quebec.

The Court’s response to the book’s allegations was unhelpful, to say the least. It should probably have avoided addressing the story at all. Further, by releasing its statement about the end of the investigation late on a Friday—a tactic of timing that modern governments the world over use to minimize the impact of bad or controversial news—the Court reveals itself to be all too strategic and sensitive to public relations. This does not excuse Mulcair for his comments, but the Court compounded this “controversy” by responding to it the way elected politicians would.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. His new book, Governing from the Bench: The Supreme Court of Canada and the Judicial Role is published by UBC Press.