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

An unnecessary tempest over the Patriation Reference


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.


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

  1. He needs to earn his pension doesn’t he?

    • Earn pension.
      Oxymoron of the century.

      • If you’d rather, call it giving them money to go away.

  2. “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.”

    Counterpoint: if they provide l’Assemblée Nationale with the documents in question without redactions and they confirm Bastien’s findings: wouldn’t that confirm his findings? Also, while we like to believe that our judicial institutions are above reproach, it is just possible to fathom that maybe, just maybe, not everyone is impartial as reported by former Supreme Court Justice Louis-Philippe de Granpré. And on a contentious issue such as Quebec sovereignty, it’s quite possible that an activist Chief Justice would have pressured the other judges to rule the way he wanted to.

    But there’s no proof of this until documents are released for all to see and while Mr. Macfarlane seems intent on living in ignorance of Canada’s history, many others such as Thomas Mulcair do not. That’s far from irresponsible.

    • While it is quite possible that an activist Chief Justice would have pressured the other judges to rule the way he wanted to, the fact remains that the Chief Justice’s was on the side of the minority on this: he lost.
      However, I would like to see the patriation files, from all governments involved.

      • Justices are adults (so far). There is no pressure that can be applied to a Justice as the Chief Justice is not ‘in charge’ of the others.

  3. Canadian politics have been rife with backroom deals and “inappropriate” behavior throughout it’s history and still we function quite well as a nation. Canada is just that…Canada. From coast to coast we are Canadians first and foremost whether we live in British Columbia, Prince Edward Island or Quebec. We are a proud nation that has achieved many accolades from the fact that we are one of the few nations on Earth where a multi cultural society can live side by side in relative harmony. As a nation we should be proud because we have always stood tall in the world’s eyes for our selfless contributions. This “new” revelation is much ado about nothing and does not merit an honorable mention in the footnotes of Canadian history. Stop politicizing nonsense and get down to the more important issues that we as Canadians face today.

    • you speak of a canada that only exists in the alternate universe of your mind- “selfless contributions” ? canada is nothing but low-brow and selfishness- who else would support this harper canada ? look at all the negative comments recieved in all the media regarding any higher ideal in canada, be it constitutional rights, health care, ei, justice, immigration, education, transportation etc etc etc wake up kevin, you are dreaming

    • Just look at that troublemaker Paul Martin Junior.
      He is on National Public Television telling the world Canada is guilty of genocide like the barbaric regime of Adolf Hitler.
      And he advances no rational argument in favour of the exact distinction between scientific and non scientific historiography.
      What shameful Trudeauist trash.
      And he is a recipient of the Order of Canada.
      Obviously Paul Martin Junior is a mentally defective creature.
      You hear me Junior?
      You are a degenerate–a Trudeauist.
      Stop trashing Canada you senile old man.
      Where is the rational argument?
      No wonder so many of our young people shun rational political and economic order.
      Our ancestors built up this almighty world civilisation and Junior will not tear it down.
      So help me God.

      • We do not take kindly to troublemakers in these parts–stranger.
        So pack your bags and mosey on out of this town.

      • Why should we believe anything you’ve written? If Paul Martin, Jr has mental defects, the same could be said for you and for most of the Harper Canada caucus. How are things below the first standard deviation under the mean of the Stanford Binet IQ distribution?

        • “If Paul Martin, Jr has mental defects, the same could be said for you and for most of the Harper Canada Caucus.”
          RCAF Baby

          Where is the rational proof that it could be?
          A hypothetical statement or an utterance is not a rational argument.
          It is a hypothetical statement or an utterance.
          Because without the scientific idea of the rational argument in favour of the exact distinction between what could and could not be, the road to actuality is very long indeed.
          Because appearance is not reality.
          Because it is not the case that ultimate reality is unknowable and that something unknowable exists.
          Please advance a rational argument.
          Thank you.

          • Paul Martin was able to work with Prime Minister Chretien to pull Canada out of a massive structural deficit inherited from Trudeau and Mulroney (the structure from Trudeau and the magnitude from Mulroney). Theirs was not a simple collaboration but one of considerable ideological tension. This was a considerable accomplishment.

            We have yet to observe the same success from Harper Canada and there are growing indications that the promised wealth of the Alberta oil sands is slipping away from this government.

            Unwarranted corporate tax cuts and GST cuts just to win votes will not produce an economic recovery in the same decade as a return to fiscal surplus. Harper Canada have not yet proven up to restoring the surplus that was in place prior to Harper’s first victory.

    • “This “new” revelation is much ado about nothing” Agreed and also agreed that Mulcair is stirring up a pot for personal political gain at the expense of Federal/Provincial peace. Perhaps it’s Mulcair who’s in over his head.

      On another note, good behaviour of an honourable Canadian includes using Canadian spelling. Ah, the tyranny of default US spell checkers and the user’s inability to know where to change preferences. Sigh. :-(

  4. Did you expect any other reaction from Mulcair The question that should be asked of Mulcair is did he know how seriously jack was during th election

  5. Mulcair is irrelevant. The NDP high water mark isn’t fooling anybody.Notice that the Clownservatves are focussed on Justine rather than Tommy Boy.

    • Why Justine? She is not in politics. Were you mistyping Justin? If that is too hard, try Trudeau.

      • But he’s such a pretty thing!

        I support the general philosophy of the Liberal Party far more closely than I could support either of the other two. I’m just not convinced that the party has engaged in serious reform so I poke a bit of fun at the boy. If he can’t accept that sort of poke, he’ll never survive what the Clowns are brewing for him.

        From an overview of de Sade’s “Justine”


        “Throughout the novel, Justine is constantly thrown into the path of various perverts that abuse her in the most appalling ways. She is abused even by those to whom she shows kindness; none of the characters she meets understand the concepts of virtue, kindness, or even religion.”

        That sounds a lot like a Canadian political campaign to me.

        • And of course everyone knows when they see it that the swastika is the hindu symbol representing auspiciousness.

          • There was a more recent European usage of the symbol that brought it before the Nazis. The Nazis didn’t have the Internet … but the converse is clear.

        • I had just thought it was a derogatory way of spelling “Justin”. Your explanation makes your spelling “Justine” an excellent commentary on our current politics!

          • I haven’t actually read de Sade but I knew the book existed. Looking it up only made the reference funnier. I knew “Justine” was synonymous with naive innocence by inference and don’t recall where I picked that up (I’ve read a significant amount in more than fifty years).

  6. I am a retired lawyer. With a QC so credible according to my colleagues. And I find Mulcair’s comments more believable than those of the SCC! The story has it right – they looked in their filing cabinet and did not find anything and that was good enough for them!

    • Retired lawyer… you must be proud.

    • I would have thought that a lawyer, retired or not, would have a better grasp on sentence structure.

      • Who cares? I got my point across. You understood. So what is the problem?

        • You highlight a recent and current situation: Is it more important to express yourself correctly or clearly? The best writers seem to find a way to do both.

    • Anything is possible, of course. And Mr. MacFarlane is not helpful with his usual penchant for positing a possible likelihood as a certainty, and his reasoning it shouldn’t happen because it might “raise doubts” about the repatriation process is troubling. Even unscholarly, one might say.

      Best we all step back and take a middle approach. “Somebody in a position to know made a comment. The court took a look and found nothing, although it was a long time ago and nothing would likely come to light. One might say the inquiry should have been independent, but likely the result would have been the same. It is somewhat possible that something sinister went down and has been covered up, but without more it would be irrepsonsible to support such a conclusion.”

      • The SCC is not in the habit of explaining what it does or how it goes about doing it. And nobody should question them – just accept.

        • I’m aware of how the court issues decisions.

  7. Anything Maclean’s publishes is certainly going to be to the right of centre… Mr.Mulcair was in his rights to question the validity of the court’s cryptic comments concerning a very serious issue concerning those years of Trudeau rule and his disdain for everything in Quebec.

    • This was nothing more than a lame attempt to score some political points. The PQ, who are too inept and ineffective to take the PM on directly, go after a couple of dead SC judges who are conveniently unable to answer the charges. That’ll show those federalists! Meanwhile, Mulcair has hitched his wagon to their falling star in a sad attempt to maintain some degree of support in Quebec.

  8. This is just one more example that Muclair and his kiddie caucus is not ready for prime time. All of his controversial statements most including Quebec will come back to bite Muclair in the next election.
    His comments will be repeated by Trudeau to remind the rest of Canada that Mulcair is not fit to govern and it is only the Liberal party that is suited for that purpose. After Canadians finish laughing they will go back to living their lives and voting for the current government.

    • Why would anyone vote for Harper? Hes a traitor. Trudeau at least loves our country. Harper, the mail room boy, has driven up a record deficit.

      • Wow!!!!!!!! Would you like to provide prove that he is a traitor? He is the Prime Minister of this country duly elected whether you like it or not. The deficit was incurred because of the demands of the opposition parties during the worse recession the country has faced since the late 20’s. What would you have not done….extend E.I., help the auto industry, infrastructure spending with the provinces etc. etc. Trudeau loves this country. Provide proof please. He says it but does he really care about the whole country or just Quebec. Provide proof Harper doesn’t love Canada. You need to take a deep breath. Put you leftist ideology on ice and think clearly and realistically.

        • You can keep telling yourself that the deficit was caused by opposition party demands but it won’t make it true. Harper drove this country into deficit before the start of the recession (FACT) and it was caused by a massive increase in public service expenditures (FACT) and an imprudent cut to the GST (FACT). I’ll even point out that our “economist” PM said that there was no recession on the horizon shortly before the recession. He has failed by every objective measure.

          If you want to claim that the Cons were intimidated by the opposition into spending beyond their means and beyond a level their ideology would dictate, you can certainly make that claim. It does not comport with the facts so you’ll have a tough time selling that story.

          • First of all I don’t have to sell my story to anybody. Like you I am entitled to my opinions. However, you will recall the government came back with an economic update which did not propose any new spending. In fact foolishly said we were going to be in a surplus. Nobody and I mean nobody new what was in store for the world economies. You may recall a hew and cry from the opposition parties and in fact they announced a potential coalition with their rudimentary budget suggesting a $30 billion deficit. So to suggest that Harper was not reacting to the opposition and of course to the situation unfolding is not accurate. Parliament was prorogued and we got a massive stimulus spending program. Those are the facts.
            Did I agree with the cut in the GST… no. Likewise Chretien who promised to eliminate it was not in my good books either when he outright lied. The Libs left a surplus of $13 billion which would have not done much to help us in the following recession even if Harper did not do the things he did. However, I would argue the cut in the GST largely helped those in the lower socio economic scale. The splitting of pensions helped many, many citizens of which I am one. So we can argue until the cows come home but the reality is he has won two subsequent elections and to continue to harp on the past serves little purpose. The beauty is we will probably cancel each others vote in 2015.

          • “Nobody and I mean nobody new(sic) what was in store for the world economies.”

            Actually, the record is rife with economists, think tank forecasts, bank forecasters et cetera ALL predicting doom and gloom for the world and Canadian economies.

            Harper knew better. He chose to either not believe virtually all the prognosticators or to be “at variance with the facts”, as a predecessor of his used to say.

          • I expect there were just as many economists predicting rosy times. I don’t know, but that is the usual case: When anyone predicts one thing, others will predict the opposite. Check out the predictions on which political party will win any election.

            When the recession started, Harper HAD to claim it would not be bad. Had he predicted it would get worse, he would have been blamed when it did. By predicting only small trouble, he was influencing the markets in that direction, and likely did reduce the effects of the recession.

          • Candaa would be in a surplus position if they didn’t subsidize Quebec.

          • Quebec equalization payments in 2012: $7.8 Billion, Federal Deficit 2011-12 $26.2 Billion.

            When you make up a ‘fact’, try to come up with something plausible.

        • He has a Masters in Economics (albeit from a minor Bible College) and the deficit spending was successful in limiting the damage of the recession. If he’d been to a good school like the University of Chicago, he’d have a better understanding of monetary policy and probably would have had a decent job rather than fetching coffee on Parliament Hill and running the National Citizens COALITION. (There’s that funny word again).

          Why is a poor economist a better choice than a snowboard instructor? The Albertans’ previous choice was a Jet-ski driver in a wet suit.

          Trudeau has better Liberal credentials on his mother’s side and she was from B.C. Her father was a solid Liberal establishment guy. Harper is from Ontario with no historical ties to anywhere else.

          • The University of Calgary is a “minor Bible College”?

          • Has it produced anyone other than Harper and his favorite child pornography advocate?

          • James Gosling, Naheed Nenshi.

          • So two guys out of how many Billions spent? Gosling gave us Java and the other guy is a defenceman for the Flames? Mayor of the parish surrounding the Bible school?

          • Alternate answer: Given a few more years of Harper Canada, it will be.

      • Are you talking Liberals and the Trudeau family who have voted to have the rest of Canada subsidize Quebec to the detriment of the rest of Canada?
        Why should students in the rest of Canada pay higher tuition while their parents pay higher taxes to subsidize Quebec education.
        $5.00 per day daycare in Quebec subsidized by the rest of Canada.
        We are tired or Trudeau and the Liberals and the NDP.
        They are smart enough to ignore Quebec.

        • You seem to have confused a pair of elected Trudeaus with the Kim family of North Korea. The Trudeaus and Sinclairs have been part of several majority governments in Canada. I don’t recall any of them as being as thin as the staggering 39 percent of Harpers’ brief reign.

          Harpers’ best result (39%) is better than Trudeau’s worst (38%). Call us when Harper receives more than 40% of the vote as P.E.T.did in three elections.

        • Gotta love it when trolls confuse federal and provincial responsibilities. Daycare and post secondary tuition are PROVINCIAL programs.

          I’m sure you look great in brown Eric. ;-)

          • Provincial programs financed by transfers from the rest of Canada.

          • The Social transfer part is for Health care and social programs such as welfare. The equalization portion goes into other government programs that the receiving province does not have the economic power to generate for itself.

            The Quebec problem is that they consistently underperform. Their economy is weak because they deliberately destroy the expectations of anyone who is not ethnically acceptable. Widespread corruption doesn’t make anything better.

  9. The leader of HM Loyal Opposition is a citizen of the Republic of France.

    • The Prime Minister is a member of the Order Reptilia. What is your point?

      • The point? Split loyalties. Your biology has succumbed to your political biases.

  10. Mulcair’s comments is either that the Supreme Court is lazy and incompetent or that it is hiding something made by a self serving fool 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.

    • On the evidence, the SCC was lazy and incompetent in its investigation!

      • On what evidence?? Is it published what sources they investigated? Of course not! The details of their investigation are expected to be private. This is appropriate and in full keeping with the rules under which they operate.

        Opinions of would-be politicians are NOT evidence!

  11. Sorry Mulcair.
    I only listen.
    To Canadian politicians.
    With full citizenship.
    Go back to France.
    Stay there.

  12. Thomas Mulcair is Father Goose sitting on his Quebec eggs and hoping the marauding Liberals and BQ don’t steal them. Alas, they surely will. He is busily disqualifying himself for the PMO in the rest of Canada. His national vision ends at the Quebec/Ontario border.

  13. of course, political scientists writing about Canada’s courts have written far more on far less evidence. For once, it’s nice to see a political science writer not jumping to a Morton-esque, Brodie-esque mis-conclusion.

  14. I am so tired of hearing about Quebec the spoiled child of confederation.
    As they turned their backs on the troop trains going to war in Europe to free France.
    As they have the rest of Canada subsidize them then ask for more.
    As they demand language rights in the rest of Canada then outlaw English signs in Quebec.
    All we need is another Liberal, NDP or Quebec Prime Minister to make it worse.

    • I spoke to a passenger on one of the first troop-ships to leave England after VE Day. He was being sent to Canada on the way to fight the Japanese (the war ended while he was on leave). His ship brought the VanDoos to Quebec City (their home base) and the Anglais were not allowed off the ship to sightsee one of the great cities of Canada. They were held on board until their train was alongside to take them westward.

      The response of the confined ones was to gather on deck on the side opposite the Quay. The resulting list made it dangerous to use the gangway.

      Some Quebecois could see through the lies they were being told by the priests and served. One of his best mates was from Gaspe. France abandoned Quebec long before the Revolution, so Quebec owed France nothing. Quebec had not liberated itself from the Church at that point. The Roman Church was far more to blame in Quebec, Ireland and occupied Europe. They were very ‘sympathetic’ to the Boche to put it mildly.

  15. Thought I should comment here to clarify a few things:

    1) I’d LOVE to see the unredacted Canadian government docs. I thought it was predictable and “disappointing” to see Mulcair pile-on to make more of this story than it was, but I’d definitely like to see more transparency from this government and in terms of our archival history more broadly.

    2) I think we can take Bastien’s evidence at face value, but perhaps not his interpretation of the implications. So anyone who interprets this post as questioning the validity of what Bastien reports in the book is missing the point. I mainly used the word “allegation” in this piece because Laskin and Estey are not around to defend themselves. But what the book reports is quite vague – the documents Bastien received from the British government do not report that Laskin relayed specifics on which judge was saying what, or strategizing with Canadian or British politicians to influence the Court. The idea that Laskin or Estey’s indiscretions amount to a “constitutional coup” is sensationalistic to say the least.

    • With regards to exact political historiography in Canada, I Christopher Richard Wade Dettling do challenge Paul Martin Junior to provide rational historical evidence that Canada is guilty of genocide. Should Junior fail to provide such proof before the eyes of the world, I submit that he is a sophist, a mental defective and a grave disturber of the peace.
      Put your money where your mouth is old man.
      Do you have what it takes?
      Probably not, since you do not dare to publish your complete memoirs.

    • To be clear, the notion of a “constitutional coup d’etat” doesn’t come from Bastien or Mulcair but is contained in a written note from John Ford , British High Commissioner, to his superiors in London.

  16. I’m inclined to agree with EM. There’s a lot of blame to go round. From the govts secrecy, to the defensiveness of the SCC to the outrageous politicking of Mulcair. I can’t believe how irresponsible this is. His political slip is showing badly now.

    Trudeau himself made no secret of that fact he thought the court was wrong in ruling that convention said he needed the consent of the provinces. ( lord only knows how that would have worked out if he had repatriated unilaterally?)
    However, he hardly hid his distain for the court’s ruling. It’s hardly the actions of a man with a conspiracy to hide.

  17. Mulcair is a Bloc head who is pandering to nationalists for votes.

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