Supreme Court to examine allegations it intervened in Constitution repatriation
Then-Chief Justice Bora Laskin of the Supreme Court of Canada reading the court's decision on the federal government's constitutional proposals in Ottawa, Sept 28, 1981. (Fred Chartrand / THE CANADIAN PRESS)
Published Tuesday, April 9, 2013 2:43PM EDT
Last Updated Wednesday, April 10, 2013 7:18AM EDT
QUEBEC -- The Supreme Court of Canada says it will investigate allegations that some of its members intervened in the repatriation of the Constitution.
The high court's decision came after urging by Quebec's Parti Quebecois government for Ottawa to "open its books" on the events that led to the repatriation of the Constitution by Pierre Elliott Trudeau's federal Liberals in 1982.
The call by Quebec Intergovernmental Affairs Minister Alexandre Cloutier on Tuesday came after the publication of a book that alleges Supreme Court of Canada magistrates interfered in the political process and engaged in backroom discussions.
The judiciary "cannot interfere with the political powers -- that's the basics of democracy," Cloutier told a news conference Tuesday.
A spokesman for the Supreme Court indicated Tuesday the court is concerned by the questions about its credibility and feels it necessary to investigate.
"The court attaches great importance to its institutional independence and to the confidentiality of its deliberations," said Owen Rees, executive legal officer for the court, in a statement obtained by several media. "It is reviewing the content of these allegations."
The book, which was released Monday, was written by historian and journalist Frederic Bastien.
Bastien writes that Bora Laskin, then chief justice of the Supreme Court, provided information to the Canadian and British governments on the discussions between magistrates about the legality of repatriation.
Another high court judge, Willard Estey, also secretly advised the British government in 1980 that the Supreme Court would address the issue, the author wrote.
Bastien suggests that both jurists violated the principle of separation of executive and judicial powers. Bastien's information was gathered during eight years of digging through documents, including British Foreign Office archives.
All provinces except Quebec, which was then led by sovereigntist premier Rene Levesque, endorsed the Constitution in 1982. Two attempts to bring Quebec on board since have both failed.
Cloutier said the new allegations are troublesome in that Quebecers not only had a Constitution imposed on them, but also because judges named by the federal government allegedly intervened in the case.
"It also shows just how far prime minister Pierre Elliott Trudeau was ready to go and what means he was willing to use to force the Constitution down the throat of Quebecers, gestures that are extremely serious," Cloutier said.
An irked Cloutier said the subject matter discussed was very sensitive and Quebecers deserve to know the truth about what happened.
"It's the first time that I'm personally aware a Supreme Court justice would have intervened during the repatriation period," Cloutier said.
"That's a huge problem for the respect for democracy and institutions."
Cloutier wants the federal government to make public all the documents relating to the repatriation and "discuss what really happened."
But the request was dismissed by Ottawa.
"I understand the PQ wants to reopen the constitutional battles with Pierre Trudeau's former Liberal government," said Carl Vallee, a spokesman for Prime Minister Stephen Harper.
"We do not intend to play in that movie, we will remain focused on what really matters to Quebecers, Canadians: jobs and growth."
Premier Pauline Marois vowed the Quebec government wouldn't stand idly by in the face of Bastien's revelations of what he describes as a "constitutional coup d'etat."
The matter will be discussed by PQ ministers during their weekly cabinet meeting on Wednesday.
The other parties in Quebec City say they're interested in answers but add little would be changed 30 years after the fact.
The Liberals' Jean-Marc Fournier was prudent in his comments. The party's new leader, Philippe Couillard, has said he's in favour of reopening talks on the Constitution.
Fournier emerged from a party caucus meeting and said repatriating the Constitution without Quebec's approval was a missed opportunity at Canadian unity.
Fournier said if there was judicial intervention, it would be troubling and he would expect the federal government to be transparent in the file. But he questioned what opening the books would change now.
The leader of the Coalition for Quebec's Future echoed that.
"They (the allegations) raise questions, but what does it change in the lives of Quebecers?," wondered Francois Legault. "I also want the information, but I can't see that it will change much."