The Supreme Court of Canada has taken the rare step of launching an internal review after allegations that former chief justice Bora Laskin revealed confidential information to Canadian and British government officials during court deliberations on the repatriation of the Constitution.
In La bataille de Londres (The Battle of London), which was released on Monday, author and historian Frédéric Bastien reports on documents obtained through access to information in London indicating that Mr. Laskin, who died in 1984, kept the British and Canadian governments informed of the divisive debate taking place among the Supreme Court justices over the repatriation of the Constitution. He writes that revealing confidential information about court deliberations is a serious breach of ethics and calls into question a fundamental principle of democracy involving the separation of power.
The Quebec government demanded on Tuesday that Prime Minister Stephen Harper release all documents and information about backroom negotiations with London that led to the repatriation of the Constitution. Ottawa rejected the request.
“This raises the question of the legitimacy of the Supreme Court of Canada … and its independence before the political powers,” Parti Québécois Minister of Intergovernmental Affairs Alexandre Cloutier said, noting that the province has always refused to sign the Constitution. “It also shows the extent to which Pierre Elliott Trudeau was willing to go and the means he was willing to use to force the Constitution down the throats of Quebeckers.”
Quebec has long argued that the Supreme Court favours Ottawa on issues involving the province.
In September, 1981, the Supreme Court ruled that Ottawa could legally bring the Constitution to Canada from Britain without unanimous consent of the provinces, although previous practice had been to obtain unanimity in such cases. Quebec had claimed that it had a veto. The confidential information reassured the British government that repatriation would have no major hurdles, Mr. Bastien wrote.
The Supreme Court’s executive legal officer, Owen Rees, said on Tuesday in a statement that the court is looking into the allegations.
“The Supreme Court of Canada recently learned through media reports of the allegations made by Mr. Frédéric Bastien in his book, La bataille de Londres. It is reported that Mr. Bastien alleges that 30 years ago, Chief Justice Bora Laskin divulged confidential court deliberations regarding the patriation reference to the governments of Canada and the United Kingdom,” he said. “The court takes its institutional independence and the confidentiality of its deliberations very seriously, and it is reviewing the substance of these allegations.”
Mr. Bastien writes that informing political leaders of the nature of the debate, both at home and in Great Britain, violated the separation of powers between the judiciary and the executive, a grave ethical error.
“By revealing to politicians, in real time, information about the deliberations of a case in which they are a party, Mr. Laskin breached the ethics, transgressed the rules, went against his oath and violated the Constitution he was responsible for protecting,” Mr. Bastien wrote. In so doing, the actions by the chief justice invalidates the Supreme Court of Canada (1981) ruling on the repatriation, the author concluded.
Mr. Bastien supports his arguments by referring to declassified documents obtained from the British Foreign Office, including a letter the British High Commissioner to Canada, John Ford, wrote British government officials.
Mr. Bastien writes that, after receiving information from Mr. Laskin, Mr. Ford stated in his letter that Ottawa’s plan to repatriate the Constitution without provincial consent was “a real attempt at a coup d’état in order to change the balance of powers within Confederation.”
Quebec premier René Léveque also described Mr. Trudeau’s political manoeuvre as a “coup d’état.”
Mr. Trudeau needed the British government’s consent to repatriate the Constitution. British prime minister Margaret Thatcher was willing to comply, but questioned the need for a Charter of Rights and Freedoms. Mr. Trudeau made the move as part of his national unity agenda after Mr. Lévesque‘s Parti Québécois government lost a 1980 referendum on sovereignty-association.
The opposition parties on Tuesday supported the minority PQ government’s demand that Ottawa release all information about the repatriation process. Liberal House leader Jean-Marc Fournier said the 1982 repatriation was a missed opportunity by all sides to reinforce Canadian unity. He said the issue will need to be addressed one day, but for now there are more urgent matters on the government’s agenda.
“We can’t deny that the situation of Canada’s place in the Constitution needs to be corrected. But that be saying said we cannot use this to ignore the daily concerns of Quebeckers,” Mr. Fournier said.
Coalition Avenir Québec leader François Legault said the revelations in the book change nothing for average Quebeckers, who care little about the constitution and how it was repatriated.
“What does this change in the lives of Quebeckers?” Mr. Legault said. “What does it matter if we say we will slap the hand of the government in power at the time….I also want all the information but I can’t see it will change.”
The CAQ was founded on the promise that it would keep constitutional issues involving Quebec’s place in Canada and the sovereignty debate on the back burner for at least 10 years and focus on the province’s economy.