In a Season of Sensational Scandals,

A Tempest in a Quebec Teapot

By Peter H. Russell

In what seems to be an unending stream of headlines about wrong-doing in high places, let me rescue one of our cherished institutions from an attempt to blacken its name and that of one of its former leaders.

I refer to allegations that years ago, when the Supreme Court of Canada was considering a challenge to Prime Minister Trudeau’s effort to have Canada’s Constitution patriated by the British Parliament without the support of the provinces, Bora Laskin, the Court’s Chief Justice, had communications with the Canadian and British governments which so seriously breached the principle of the separation of powers as to question the very legitimacy of patriation.

The allegation has been made by Quebec history professor Frederic Bastien, in his recently published "La Bataille de Londres," a detailed account of the fierce battle that took place in London as the provinces and aboriginal peoples tried to block patriation from being passed by the British Parliament.

Though Bastien’s book has been a sensation in Quebec, provoking Quebec’s National Assembly, on April 23, to pass a unanimous resolution calling for a full investigation by the federal government, it has been largely ignored in English Canada.

Indeed, I could not find a copy of Bastien’s book in Toronto.

My copy has finally arrived and I have now had a chance to carefully examine its allegations about Bora Laskin and the Supreme Court of Canada.

Professor Bastien surely earns top marks for resourcefulness. You would think that after all these years there was nothing more to be found out about patriation. But Bastien managed to dig into British Foreign Office documents that had not been examined before.

And what did he find?

Well, first off, he found a message from the UK’s High Commissioner to Canada that he had been confidentially informed that the Supreme Court will hear the appeal from the April 28 decision of the Manitoba Court of Appeal much sooner than the federal government had expected.

No doubt the federal government had received this information from Chief Justice Laskin. The Trudeau government in Ottawa and the Thatcher government in London both recognized that the UK Parliament could not act on the Canadian patriation package until Canada’s highest court determined that it had been sent to London in a constitutionally legitimate manner. So it was important for both governments to know when to expect a decision from the Supreme Court.

Bastion is wrong to suggest that it was a breach of the principal of the separation of powers for Chief Justin Laskin to give the government information about the scheduling of the patriation case.

Communicating scheduling information of that kind goes on all the time between the judicial and executive branches.

On what was, without a doubt, the most important constitutional case ever decided by the Supreme Court, and a case that had an important bearing on the business of the British Parliament, it would have been churlish in the extreme for Laskin to have withheld information about the court’s timetable for handling the case.

Bastien also suggests that Laskin promised the Trudeau government that the Court would deal with the case as quickly as possible. Given the case’s importance, there was nothing wrong with the Chief Justice communicating such a commitment to the Canadian government.

Yet Bastien says this amounts to Laskin assuring Trudeau, whose government had appointed him as the first Jew to the court, whose side he often supported in constitutional cases and whose Charter of Rights he much admired, not to worry about the patriation case – “I will deliver the goods.”

The innuendo here is cheap, totally unfair and carries with it a whiff of anti-semitism.

Later on Bastien finds evidence that Trudeau informed the Thatcher government that Laskin had cut short his summer vacation in England to work on the patriation case, and suggests this shows the Chief Justice, in order to please “his boss,” was willing to give less time to the case than it deserved.

Again, the writer’s bias and bad judgment is palpable.

One final bit of gossip Bastien picked up in the Foreign Office files, if true, does not reflect well on the Chief Justice. When he returned to London, in dinner-table conversations at one of the Inns of Court, he indicated that his court was badly divided on the issues in the patriation case – as indeed it was.

Disclosing anything in public about what is going on within an appeal court while it is  working on a case – even disclosing that the judges are divided – is a judicial no-no.

But this breach of judicial ethics, if it occurred, does not come even close to violating what Bastien refers to as “a sacred democratic principle: the separation of powers.”

As it turned out, the Supreme Court did not deliver its judgment until September 28, 1981, well after the British Parliament had risen for its summer holiday. And its decision, far from showing any undue influence by the Trudeau government or by the Chief Justice, was a loss for both of them.

Much to the Trudeau government’s disappointment, the Court’s majority ruled as a matter of constitutional convention that the federal government must have a substantial measure of provincial support before requesting the British Parliament to amend Canada’s Constitution in ways that affect provincial rights. Chief Justice Laskin dissented strongly from this judgment.

In the case of Frederic Bastien’s allegations against the late Chief Justice, Bora Laskin, the real scandal is the credibility given them by Quebec political leaders and journalists.

About Peter Russell

Peter H. Russell is Professor Emeritus of Political Science at the University of Toronto. He is one of Canada’s leading constitutional scholars, has published widely in the fields of aboriginal policy, the judiciary and parliamentary democracy, and is a frequent commentator on Canadian government and politics. He is the founding Principal of Senior College at the University of Toronto. Peter Russell is an Officer of the Order of Canada and a Fellow of the Royal Society of Canada.
Posted date : May 23, 2013

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