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Supreme Court finds no evidence of political interference in 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 Quebec government says it is disappointed that the Supreme Court review of its deliberations on the patriation of the Constitution has found no evidence to substantiate allegations of political interference in the judicial process.

The Supreme Court of Canada said on Friday it had nothing to reveal regarding allegations that two former justices communicated with Canadian and British government officials regarding the 1981 patriation process.

Recent declassified documents in Britain said former chief justice Bora Laskin, who died in 1984, informed the Canadian and British governments about the divisive debates among Supreme Court justices over the legality of the patriation process. The information was in a new book by historian Frédéric Bastien, who also alleged that justice Willard Estey, who died last year, secretly kept the British informed in the fall of 1980 about the court reference.

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In September, 1981, the Supreme Court ruled that Ottawa could patriate the Constitution without the unanimous consent of the provinces, which paved the way for a later ruling rejecting Quebec's claim that it could veto the process. The allegations called into question a fundamental principle in democracy: the separation of the judiciary and the executive.

"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," the court stated in a brief press release on Friday.

Last week, the Quebec National Assembly voted unanimously in a favour of a Parti Québécois government motion calling on Prime Minister Stephen Harper to release all government information related to the patriation process. The PQ government also demanded that the Supreme Court name an independent probe into the alleged irregularities. There was confirmation on Friday that a formal request had been made to the court.

"The Quebec government is disappointed with the Supreme Court's summary review, which leaves several questions unanswered," the Minister of Canadian Intergovernmental Affairs, Alexandre Cloutier, said in a press release on Friday. "Important violations of basic democratic principles were addressed by Prof. Bastien, and the Quebec government has the intention of getting to the bottom of the events leading to the proclamation of the 1982 Constitutional Act."

Mr. Cloutier reserved further comment until Monday.

The PQ government has made a request under the federal access to information law for documents related to the controversy.

The access to information requests were submitted to the Privy Council, the Justice Department and Foreign Affairs Department. Quebec is demanding all information, analytical notes, correspondence, minutes of meetings, legal advice and working documents pertaining to the 1981 Supreme Court of Canada reference on the patriation of the Constitution. It also wants all information, meeting notes, and communications between chief justice Laskin and judge Estey and key senior members of the Canadian and British governments.

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The Quebec government is seeking to substantiate the information released by Britain. Mr. Bastien's book reproduces a telegram recounting a conversation in London between chief justice Laskin and British attorney-general Michael Havers. Mr. Havers was responsible for the patriation process in the British government of 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 at a Canada Day event in London. At the time, clerk of the privy council Michael Pitfield was pressing the British to pass legislation quickly 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 also says it would be "most embarrassing" if the Canadian government knew Mr. Laskin had spoken to the British government and insisted that the conversation be protected "fully."

"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. The court decision came on Sept. 28, 1981.

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