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Coup d'états, cul-de-sacs, and la Cour suprême du Canada

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Cover: La Bataille de Londres

The recent publication of Frédéric Bastien's book La bataille de Londres either delivers a constitutional bombshell or a tempest in political teapot all depending on your perspective. The impact of the book, written in French and published in Québec by Éditions du Boréal, has been felt primarily in la belle province. Its primary focus is the period between the 1980 sovereignty referendum in Québec and the 1982 patriation of the Canadian Constitution. Bastien, a historian, charts the political currents in both Ottawa and London as then prime minister Pierre Trudeau sought to head off further separatist challenges by repatriating the Canadian Constitution -- formerly the British North America Act of 1867, an act of the British Parliament -- eventually replacing it with the Constitution Act of 1982, an act of the Canadian Parliament. The Constitution Act was endorsed by the legislatures all Canadian provinces save that of Québec (then governed by the Parti Québécois under premier René Lévesque).

Chief Justice Bora LaskinWhat has made headlines in Québec is Bastien's claim that former Chief Justice of the Supreme Court, Bora Laskin (1912-1984), and Supreme Court Justice Willard Estey (1919-2002), in conversation with British politicians and diplomats, let slip information with respect to the 1981 Patriation Reference during the time that is was still sub judice (that is to say under consideration by the court). This "patriation reference" was a request from the federal government to the Supreme Court (at the behest of the provinces of Manitoba, Newfoundland, and Québec representing eight provinces that initially opposed the government's plan to unilaterally patriate the Constitution without input from the provinces) to rule on whether the Canadian government had the legal authority to undertake what it was planning to do.

The Supreme Court ruled (the results, like a hockey game, televised live -- a first in Canada and an indication of the interest that this issue garnered at the time) saying that, yes, the federal government did have the legal authority to patriate the Constitution unilaterally, however, unwritten constitutional "conventions" existed in Canada and that such unilateral action would violate these (pointing out at the same time that it was not the role of the courts to enforce constitutional conventions). Important at the time (and in common law subsequently, since it is now the authority that indicates that a "convention" cannot over time "crystallize" into law), it impelled Pierre Trudeau to begin a new round of negotiations with the provinces on the patriation issue. This resulted in the agreement that became the 1982 Constitution Act.

In La bataille de Londres Bastien argues that communications between Laskin and Estey and some diplomats and politicians were "a violation of the principle of separation of executive and judicial powers" and hence that these breaches invalidate the process of the amendment and patriation of the Constitution. Bastien calls the process a "constitutional coup d'état."

Is any of this of any contemporary relevance? Clearly the Québec National Assembly thinks so since on April 23, 2013 it passed a unanimous resolution asking the Privy Council and the Canadian Justice and Foreign Affairs departments to investigate the assertions. Quebec Intergovernmental Affairs Minister Alexandre Cloutier agued that the judiciary, "cannot interfere with the political powers -- that's the basics of democracy."

It's easy to understand how such claims play into the Parti Québécois' narrative that the Canadian Constitution is illegitimate, however, it's hard to actually discern any actual "constitutional coup d'état". François Legault leader of the Coalition Avenir Quebec (CAQ) said that the allegations "raise questions, but what does it change in the lives of Quebecers? I also want the information, but I can't see that it will change much." Liberal house leader Jean-Marc Fournier pointed out that Quebec premier René Lévesque had welcomed the results of the patriation reference.

 Bringing Law to Life coverThe clearest voice on this issue may be Philip Girard, a former legal secretary of Justice Willard Esty, a Dalhousie University law professor, and the author of the authoritative book, Bora Laskin: Bringing law to life. In an article for Le Devoir entitled "La bataille de Londres, de Frédéric Bastien - Une thèse fragile comme un château de cartes" (The battle of London by Frédéric Bastien -- a fragile thesis like a house of cards) he clearly establishes that while Justice Laskin may have been "extremely unwise" in making some indiscreet comments, they had absolutely no effect on the Canadian constitutional process. It appears that what he principally conveyed was that the court was divided on the patriation reference before it. [In the end the Supreme Court ruled unanimously on two of the three points before them and 7:1 in favour of the third point.] As for Estey his "indiscretion" was opining to the High Commissioner of Great Britain that he thought that Trudeau's unilateral resolution on partition would probably be challenged and directed to the Supreme Court. Girard concludes that Bastien's thesis "although entertaining at times, is ultimately so unbalanced that it collapses under its own weight."

Nonetheless, while greatly overstated by Bastien, the "extremely unwise" remarks of Laskin do reflect poorly on the Supreme Court, which should scrupulously adhere to the separation of executive and judicial powers, and justices should be at pains not to have loose lips with respect to cases before them. And indeed, after receiving the request from the Québec government the Supreme Court responded saying, "The Court takes its institutional independence and the confidentiality of its deliberations very seriously, and it is reviewing the substance of these allegations." After a review the court then reported:

"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."

Leader of the NDP, Thomas MulcairThis response has not satisfied the Québec government, which said that is, "disappointed with the cursory examination of the Supreme Court, which leaves many questions unanswered." Nor has it satisfied Thomas Mulcair, leader of the federal NDP, who told the Canadian Press that, "You won't find something you don't ask for. Those documents were given to Mr. Bastien by the Canadian government ... and large elements were taken out. So the first thing that one would have expected the Supreme Court to do is to ask for the full version, read them, and start an investigation."

This, in turn, prompted National Post columnist Jonathan Kay to call Mulcair "Our Supreme Court conspiracy-theorist-in-chief" for having the temerity to suggest that the Supreme Court investigation of itself may not have been sufficiently wide-ranging. Seeming unsatisfied with the first salvo, Kay followed the next day with another entitled, "Thomas Mulcair is becoming a liability to his party, and an embarrassment to federalism." "What kind of  'federalist,'" thundered Kay, "intentionally stokes up obsolete, three-decade old Québécois grievances about an act of repatriation that their provincial government never signed on to anyway?" thereby heaping absurdity onto hyperbole. Both articles are lengthy, all-over-the-map, anti-Mulcair tirades that for the most part even forget the pretext on which they were launched. [An example: "In political terms, he's (Mulcair) now the weird taxi driver who won't shut up about how the government is suppressing flying-car technology, until you hurriedly pay the bill and slam the door."]

Lord Conrad Black of CrossharbourWhen NDP deputy leader Megan Leslie responded to this concatenated nonsense in The NDP's federalist mission to suggest that the NDP would like to chart a non-confrontational path to federalism that did not repeat the 1990 errors (under a Progressive Conservative administration) that lead to the disillusionment of Lucien Bouchard with federalism and the creation of the Bloc Québécois; nor the federal fumbling (under a Liberal administration) that almost lead to the dissolution of Canada in the 1995 Quebec referendum -- this drew our Lord of Crossharbour in Canadian exile into the fray. After a long, erudite, and largely irrelevant historical précis of French-English relations in Canada from 1760 on -- and after pointedly drawing attention to the fact that he has personally known every Canadian prime minister from Louis St. Laurent to Stephen Harper -- Conrad Black concludes by saying:

"It is quite expected that Megan Leslie would seek to whitewash her own leader. But it ill behooves her to defame, in bowdlerized caricature, those who, in the country's highest office (which her party has never held) have preserved Canadian federalism. It is Ms. Leslie and Mr. Mulcair who undermine federalism with their enticements to the Quebec separatists. They insult the intelligence of the whole country by masquerading as defenders of Confederation."

None of which, of course, are in the slightest degree correct. However, acolytes of Harperism revel in opportunities to denounce the twin demons of "socialism" and "separatism."

And so it goes ….

It's easy to understand why the message of Jack Layton in the 2011 federal election had such a strong resonance across the country -- and in particular in Québec. Those of us -- Québécois and not; anglophone, francophone, and not -- fatigued to utter despair by such sterile wrangling, and seeking productive and civil relations in a tolerant and respectful political climate -- responded to Jack Layton's decency, honesty, and sincerity. The Québec caucus of the NDP is a clear expression of that sentiment, and in my meetings and exchanges with them, youthful in years though many may be, I see an utterly different face of politics. One that seeks to address substantive social, political, economic, and environmental issues that concern citizens in Québec -- and across the country that is their home -- beyond the sterile clichés, endless blind alleys, formulaic bickering, and partisan posturing that have disfigured Canadian politics for far too long.

MP Charmain BorgCharmaine Borg, the Member of Parliament for Terrebonne-Blainville told me:

"When I talk to my constituents, a lot of them -- especially because my riding is in Québec where there have been a lot political scandals -- are disillusioned about corruption and politicians. In fact, I think this is a positive side of my being young. They know that I didn't work for any corporations, that I'm not the CEO of anything. That I don't have any ties to anybody. I've had people say to me, "I'm happy that you are here. You're fresh, you're new; you don't have any history. You're just there to really represent our interests." And I feel too, that the fact that I'm younger takes away the sense of people looking 'up' at a politician. With me they don't do that because I'm younger. And I feel that it opens up this door that makes me much more accessible because they don't feel that there's 'protocol' to follow. And I actually feel that that's a very positive thing."

A genuinely respectful approach to politics is, of course, only the first step. There are still endless partisan rivulets and torrents to be forded on this political Camino de Santiago. But if one sets off with the right intention, in the right direction, there is at least the possibility of arriving at the right destination. Meanwhile, in the political cul-de-sacs, one hears the braying of gasconading poltroons.

Christopher Majka is an ecologist, environmentalist, policy analyst, and writer. He is the director of Natural History Resources and Democracy: Vox Populi.


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