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PQ presses for independent probe of patriation of the Constitution

Justice Ronald Martland, left, and Justice Roland Ritchie, right, listen to Chief Justice Bora Laskin read the Supreme Court's decision on the federal government's constitutional package in Ottawa on Oct. 3, 1981.

Fred Chartrand/CP

The Parti Québécois is seeking all-party support in its demand for Ottawa to launch an independent inquiry into alleged political manoeuvres by the Supreme Court of Canada during the patriation of the Constitution.

The Quebec government is asking that Prime Minister Stephen Harper appoint a "credible person" to lead the probe into allegations that former chief justice Bora Laskin revealed confidential information to senior officials in both the Canadian and British governments while the court deliberated in 1981.

The Quebec Minister for Intergovernmental Affairs, Alexandre Cloutier, also said that as soon as Justin Trudeau is elected as the new leader of the federal Liberal Party on Sunday, as expected, he will have an obligation toward Quebec to release his father's archives to clarify the alleged political interference by former prime minister Pierre Trudeau in the 1981 Supreme Court deliberations.

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"It calls into question the legitimacy and the independence of the highest court in the country," Mr. Cloutier said. "Mr. Trudeau has a responsibility to facilitate access to his father's archives so we can clarify what happened."

At the same time, Mr. Cloutier is urging academics in the rest of Canada to play a leading role to get to the bottom of what the PQ considers to be "a potentially huge scandal."

This week former PQ premier Lucien Bouchard, who was part of the Quebec government's legal team that argued before the Supreme Court against Mr. Trudeau's patriation efforts in the early 1980s, joined the chorus of voices demanding that all information regarding these events be made public.

The stunning allegations were made this week by historian and author Frédéric Bastien in a book entitled La Bataille de Londres (The Battle of London), showing that Pierre Trudeau was receiving, through his senior official, Michael Pitfield, inside information on the court deliberations. Constitutional experts agreed with the author's conclusion that such alleged interference amounted to a breach of ethics by the court and a serious violation of the separation of powers.

"The rest of Canada must take notice of the seriousness of the allegations made by Mr. Bastien relating to what Mr. Laskin did during the deliberations involving what is perhaps the most important ruling in the history of Canada. It also involves the legality of the actions taken by prime minister Trudeau," Mr. Cloutier said. Among the documents obtained by Mr. Bastien through access to information in London, is a telegram recounting a conversation chief justice Laskin had while on vacation in London with British attorney-general Michael Havers. Mr. Havers was responsible for the patriation process in the government of then-prime-minister Margaret Thatcher.

The telegram dated July 2, 1981, sent by British foreign minister Peter Carrington to the British high commissioner in Ottawa outlined in detail the conversation chief justice Laskin had with Mr. Havers at an event in London marking Canada Day. At the time, the Canadian government was pressing the British for quick passage of legislation allowing for the patriation of the Constitution.

"In the light of what the Chief Justice of the Supreme Court said at the Canada Day celebration yesterday, it now seems unlikely that we shall face the sort of situation envisaged by Pitfield in which the Canadians would be pointing a gun at our heads and asking us to pass constitutional legislation through Parliament before the summer recess," Mr. Carrington wrote.

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The diplomatic note also refers to how it would be "most embarrassing" if the Canadian government knew that chief justice Laskin had spoken to the British government and insisted that the conversation be protected "fully" given the sensitive nature of the information received about the "historic verdict."

"The Chief Justice said there was a major disagreement among the members of the Supreme Court … If no quick solution was found, he did not expect judgment to appear until the end of August," Mr. Carrington wrote in the telegram. The court decision finally came down on Sept. 28, 1981.

Mr. Bastien said that he attempted to verify the information in the conversation as well as other evidence with notes written by Canadian officials. However, entire sections of the documents obtained from Ottawa were blacked out.

Last week the Supreme Court took the rare initiative of launching an internal review of the allegations. But Mr. Cloutier said that for an inquiry to be credible, it would have to be independent of the court.

"Bora Laskin directly intervened with outside parties regarding the case. We cannot accept that the Supreme Court act as judge and jury on an investigation that involved one of its judges. We absolutely need an independent individual that has all the needed credibility to undertake this investigation … it could even be a former Supreme Court justice," Mr. Cloutier said.

In September, 1981, the Supreme Court ruled that unanimous consent from the provinces was not needed for the federal government to patriate the Constitution from Britain.

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For Mr. Cloutier, an internal probe would certainly have important political implications. But the priority, he said, was to get to the truth. "This hits at the heart of principles of democracy. We have before us a potentially huge scandal that needs to be checked and double checked and analyzed in detail to make sure we have a clear understanding of what took place."

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