OTTAWA – Tom Mulcair is pressuring the federal government to disclose documents pertaining to alleged misconduct by two justices during Supreme Court deliberations on the patriation of Canada’s Constitution.
The NDP leader is urging other parties to join forces in demanding full disclosure after a search by the Supreme Court of its records came up empty late last week.
His quest is supported by the Bloc Quebecois but other federalist parties aren’t interested.
Indeed, Liberal MP Stephane Dion called Mulcair’s pursuit of the documents irresponsible and accused the NDP leader of abetting Quebec separatists.
The province’s governing Parti Quebecois is using the controversy to wage “a political battle to undermine the Supreme Court, to undermine Canada, to undermine the Charter of Rights and so on,” Dion said in an interview Monday.
“And for Mr. Mulcair to play this game is completely irresponsible … I think he’s completely playing the game of the separatists.”
Prime Minister Stephen Harper’s Conservative government reiterated Monday that it has no interest in re-opening what it calls old “constitutional battles.”
But Mulcair was adamant that Canadians have a right to know whether there was political interference in the Supreme Court’s deliberations on the legality of patriating the Constitution from Britain.
“What we’re doing is standing up foursquare in defence of the independence of the Supreme Court,” he said.
“Canadians are entitled to have a full answer to these important questions.”
The 1982 patriation of the Constitution has always been a controversial subject in Quebec, whose separatist government of the day felt betrayed by other provinces and ended up alone in refusing to sign onto the document.
The controversy has been given new life in a recently published book, “La bataille de Londres,” by historian and journalist Frederic Bastien.
Documents obtained by Bastien through United Kingdom freedom of information legislation suggest that Bora Laskin, then chief justice of the Supreme Court, told British and Canadian officials that the top court was divided on the patriation question and advised them about the probable timing of a decision.
They also suggest that another justice, Willard Estey, informed British officials in 1980 that the court would be addressing the issue of whether provincial consent was needed to patriate the Constitution.
Canadian documents obtained by Bastien were too heavily censored to provide confirmation. Mulcair said Canadians deserve to see them in their entirety.
The Supreme Court launched an internal investigation into the allegations but late last Friday reported that it had found no documents on the matter.
Mulcair cast doubt on the court’s ability to investigate itself.
“I wasn’t the only person to note that a laconic press release of several lines on a Friday afternoon at 4:30 didn’t do a lot to reassure people,” he said, adding that’s why the NDP is continuing to pursue the documents.
“We want all Canadians to know if the Canadian documents confirm what has already been provided by Great Britain.”
Bloc Quebecois Leader Daniel Paille maintained the NDP is coming late to the issue but welcomed Mulcair’s intervention.
“Finally, the NDP agree with us. Welcome,” Paille said.
Should the Canadian documents confirm the judicial misconduct suggested in the British documents, Mulcair did not respond directly when asked if that would invalidate the court’s ruling that substantial provincial consent was needed to patriate the Constitution. Paille said it’s too early to say.
For his part, Dion said the issue is relevant only to historians.
“A mistake by a judge is not equivalent of a plot to undermine the case of the provinces facing the federal government.”