If Thomas Mulcair cares about judicial independence, he has an odd way of showing it.
“The Supreme Court had no intention all along of ever dealing with this issue seriously,” Mulcair declared after the court concluded its review of allegations — made by Dawson College history professor Frederic Bastien in his new book, La Bataille de Londres — that, in the early 1980s, former chief justice Bora Laskin and former justice Willard Estey secretly discussed the court’s deliberations on the patriation of the Constitution with British and Canadian officials.
“The Supreme Court of Canada conducted a thorough review of its records and it does not have any documents relevant to the alleged communications,” the court said in a statement on Friday. This seems not to have satisfied Mulcair.
His response, however, crossed a line. It is one thing for a political leader to disagree with a court’s judicial opinion. It is quite another to question its good faith.
Mulcair did not merely suggest that the Supreme Court had left too many stones unturned, he also implied that it did so intentionally. That the internal investigation was itself a remarkable step — the court typically ignores political posturing from people like Mulcair — seems to have been lost on the NDP.
True, this was not a full judicial inquiry, but nor should it have been. Mulcair is a lawyer. He knows — or should know — that the high court is not a detective agency. It does not launch inquiries. It reviews questions of law, not insinuations of fact. Nor should it answer to politicians.
In his book, Bastien alleges that, by discussing the court’s deliberations with government officials, Laskin and Estey undermined the separation of powers between the executive and the judiciary.
This is simply wrong. There is no evidence — in Bastien’s book or anywhere else — that the Canadian government ever demanded anything of Laskin or Estey. Of course, the government of Canada asked the Supreme Court to decide the patriation reference in a particular way, but it made that request in open court. So, for that matter, did the government of Quebec.
The real threat to the separation of powers has come, instead, from Mulcair. His recent rhetoric is an attempt to bully the court into following his judgment, rather than its own. He has no business doing so; judges listen to litigants, not legislators. If the court accedes to the NDP’s demands, it would set a dangerous precedent.
Far from defending the court’s legitimacy, Mulcair has become a mouthpiece for those who seek to undermine it. The allegations against two long-deceased Supreme Court judges are catnip for Quebec’s sovereigntists.
Not only does Bastien’s account seem to support the Parti Québécois’ skewed mythology about the patriation of the Constitution — that it was an inside job, and a betrayal of Quebec — but it also evokes the spectre of Quebec nationalism’s greatest enemy: a Liberal named Trudeau. With that name back in the news, and with the federal and provincial Liberals both back on top of the polls, Mulcair and Quebec Premier Pauline Marois have evidently found themselves in a common cause; by raising the dead, they hope to bury the Liberals.
It is bad enough for someone who hopes to be prime minister to play fast and loose with our national unity to try to win votes in Quebec. But Mulcair has done more than that. He has deliberately doubted the Supreme Court’s independence and impartiality. He has implied, without any evidence, an unholy alliance between the current members of the court and the federal government. He has all but alleged a cover-up.
This is all the more absurd because Bastien’s allegations are of precious little consequence. Thirty-two years ago, the Supreme Court held that the federal government could legally seek the patriation of the Constitution without the consent of the provinces, but that it would violate a constitutional convention by doing so. Laskin and Estey were in the minority. The rest is history.
But not, it seems, for Mulcair. He is indulging in innuendo to open old wounds, all for partisan gain. His tactics are as reckless as they are short-sighted. They are unbecoming of his office.
Last week, Mulcair showed himself to be willing to risk the public’s confidence in judicial independence — upon which the rule of law depends — to score some cheap political points in one particular province.
As a lawyer, as a Quebecer and as a Canadian, he should know better.
Catherine McKenna is co-founder of Canadian Lawyers Abroad and executive director of the Banff Forum. Adam Goldenberg is a Kirby Simon Human Rights Fellow at Yale Law School and a former Liberal speech writer.
