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The Globe and Mail

Quebec government berates Supreme Court of Canada over Laskin review

MAY 6, 1981: The nine justices of the Supreme Court of Canada. Top row, left to right, Julien Chouinard, Willard Estey, William McIntrye and Antonio Lamer. Front row, left to right, Robert George Brian Dickson (commonly known as Brian Dickson), Ronald Martland, Chief Justice Bora Laskin, Ronald Ritchie and Jean Beetz.


The Quebec government has berated the Supreme Court of Canada, saying it failed to provide a "transparent" and "independent" review of allegations that former chief justice Bora Laskin leaked information to senior British and Canadian government officials during 1981 court proceedings leading to the patriation of the Constitution.

The Parti Québécois Minister of Canadian Intergovernmental Affairs, Alexandre Cloutier, called the court's effort "superficial," saying it refuses to get to the bottom of a controversy that he alleges involved a serious breach of the division of powers between the judiciary and the executive.

"The court doesn't get to the heart of the problem regarding Chief Laskin's intervention during the deliberations," Mr. Cloutier said. "It has a duty to be transparent and we expect the court to open its books and explain its approach."

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The Supreme Court said Friday that after conducting a "thorough review of its records," it found nothing to substantiate allegations that Mr. Laskin and former justice Willard Estey communicated information to a third party during the court deliberations.

The court undertook the review after historian Frédéric Bastien published a book that contained declassified documents from Britain, including a telegram dated July 2, 1981, allegedly recounting a conversation between then-British attorney-general Michael Havers and Mr. Laskin. Mr. Havers was responsible for the patriation process in the government of then-British prime minister Margaret Thatcher.

The telegram sent by then-British foreign minister Peter Carrington to the British high commissioner in Ottawa gave details of a conversation at an event in London marking Canada Day. At the time, the then-clerk of the privy council, Michael Pitfield, was pressing the British for quick passage of legislation to allow 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.

The diplomatic note said it would be "most embarrassing" if the Canadian government knew that Mr. Laskin had spoken to the British government.

"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. "In view of the confidentiality of the Chief Justice's conversation with the Attorney-General, it would clearly be wrong for you to reveal at this stage that we now have a clear indication of further likely delay by the Supreme Court." The court ruled on Sept. 28, 1981, that Ottawa could move ahead with patriation without the unanimous consent of the provinces.

Mr. Cloutier said the telegram is enough to warrant an inquiry but acknowledged he cannot force the Supreme Court's hand. The Quebec government may be able to use the federal access to information law to obtain documents from Ottawa that might substantiate the allegations. The Quebec government has also demanded that Ottawa launch an independent probe. The NDP and the Bloc Québécois will seek support from the Liberals to debate a motion calling for an inquiry. So far, the Harper government has ignored Quebec's request. In the meantime, Mr. Cloutier urged the Supreme Court to explain how it conducted its review.

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"We don't know if the court itself conducted the review and probed the behaviour of one its former justices. We have to question the independence of this review. … The frustration is quite high because the answers given by the Supreme Court raised so many questions," Mr. Cloutier said.

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