[This post is updated/corrected below]
Not bad – a new history book out, and Fréderic Bastien has a unanimous resolution of the Assemblée Nationale and a Supreme Court of Canada investigation to show for it.
Not bad – a new history book out, and Fréderic Bastien has a unanimous resolution of the Assemblée Nationale and a Supreme Court of Canada investigation to show for it.
As you may have seen, Bastien’s La Bataille de Londres presents evidence, mostly from British
sources, that in 1981 judges of the Supreme Court of Canada, particularly Chief Justice
Bora Laskin, gossiped with politicians and public servants about the Patriation
Reference while it was still sub judice.
Professor Bastien, who teaches at Dawson College in Montreal, argues that this breach of the separation of executive and
judiciary invalidates the whole process by which the constitution was
amended and patriated.
From the first, I wondered what Philip Girard’s take on this
might be. Professor Girard, lawyer and
historian at Dalhousie and former Supreme Court clerk, is the author of an excellent 2005 biography
Bora Laskin: Bringing Law To Life. Well,
now we know what he thinks, because Le
Devoir had the good sense to ask him.
Girard’s take is
that, well, it was “extremely imprudent” but not that serious and not that
surprising. Laskin and Justice Estey, he proposes, breached no vital barriers in
their chats with diplomats and politicians. He questions Bastien’s conclusions
but not his evidence that it happened, and indeed his biography gives some
supporting evidence. In the biography, Girard describes Laskin at a legal
conference where senior lawyers and politicians were to discuss the patriation
reference, still undecided by the court – and Laskin had to be convinced his
presence at the session would be inappropriate.
Our national
newspapers do not seem much interested in this story, (But Everyday History has been on the story.) It’s otherwise in le journal national. Le
Devoir has printed both Girard’s opinion and a response by Bastien, and
much commentary besides.
Girard argues effectively
that Bastien’s evidence hardly sustains his charge that this constituted a “coup
d’etat” at the Supreme Court, one that invalidates the constitution itself. But
it strikes me as serious, and the Supreme Court should be investigating. The
reputation of the Supreme Court and of Bora Laskin are tainted by this kind of imprudent
chat between judges and the politicians who were strategizing about the consequences of a case actually before the court. We are entitled to know: could similar things
happen in the McLachlin Court if a case of equivalent political heft were
suddenly put before it?
In 1981 Chief
Justice Bora Laskin was head, by virtue of his office, of the Canadian Judicial
Council, the only agency with the authority to discipline judges for
unprofessional conduct. Discussion of possible improprieties by a former chief
justice might oblige the Supreme Court to return to the question: quis custodiet ipsos custodies?
The Bataille de Londres is history. The Battle of Laskin may still to be written.
Update/Correction, May 2: Philip Girard has let me know that Le Devoir did not approach him regarding his commentary. He approached them -- after The Globe and Mail showed no interest when he offered it to them.
He also reports U of T Press will soon issue a paperback of his Bora Laskin: Bringing Law to Life with a new preface addressing this topic.
Update/Correction, May 2: Philip Girard has let me know that Le Devoir did not approach him regarding his commentary. He approached them -- after The Globe and Mail showed no interest when he offered it to them.
He also reports U of T Press will soon issue a paperback of his Bora Laskin: Bringing Law to Life with a new preface addressing this topic.
