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Supreme mystery provokes

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The allegation that two former judges on the Supreme Court of Canada shared the court's deliberations on the patriation of Canada's constitution with British and Canadian officials more than 30 years ago is astonishing, but that is the blockbuster claim of a new book by a Quebec historian.

January 23 2013 edit dinky Dale Cummings Winnipeg Free Press. JUSTICE GAVEL

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January 23 2013 edit dinky Dale Cummings Winnipeg Free Press. JUSTICE GAVEL

For many Canadians, the revelations may seem like historical trivia, but Quebec sovereigntists are citing the information as more evidence the province was screwed by the rest of Canada when the Constitution was patriated in 1982 from Great Britain with a Charter of Rights and amending formula. Quebec has still not signed the Constitution.

There's also the important question of ethical breach, since judges are supposed to be impartial and beyond the reach of political influence.

In La bataille de Londres, Frédéric Bastien says then chief justice Bora Laskin provided information to the Canadian and British governments about the court's discussions regarding the legality of patriation, while another judge, Willard Estey, also advised the British on the matter before the court ruled on the matter. Both judges are deceased.

The book was just released, and it's unclear if the unusual interaction between the court and the governments had a meaningful impact on the court's judgment, or on Great Britain's decision to permit the constitution to be patriated.

The court ruled in 1981 that the Liberal government of Pierre Trudeau had a legal right to unilaterally bring home the Constitution, which at that time was British legislation known as the British North America Act. The court added, however, that custom and tradition obliged the government to get the consent of the provinces.

The Supreme Court of Canada is looking into the allegation, which is the most serious ever faced by the court. The Quebec government has also demanded Ottawa release all relevant documents on the controversy, but the Harper government offered only its trademark sardonic response to requests it does not support.

"I understand the PQ wants to reopen the constitutional battles with Pierre Trudeau's former Liberal government," a spokesman for Mr. Harper said. "We do not intend to play in that movie, we will remain focused on what really matters to Quebecers, Canadians: jobs and growth."

Well, it should be possible to chew gum and walk at the same time. The government has no valid reason for withholding the information, particularly on a file that is not dear to its heart. The Conservatives, for example, did nothing to mark the Charter's 30th anniversary last year.

January 31 2013 edit dinky B Dale Cummings Winnipeg Free Press QUEBEC CANADA CARDS CLARITY ACT

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January 31 2013 edit dinky B Dale Cummings Winnipeg Free Press QUEBEC CANADA CARDS CLARITY ACT

The release of documents is important to establish the historical record, and to clarify the ethical questions that are rightly troubling the Supreme Court. Mr. Bastien himself found the information in declassified British documents, and in Canadian files that were heavily redacted.

The historian found one document from British High Commissioner John Ford, who informed his bosses in London that Trudeau's plan was "a real attempt at coup d'état." Former Quebec premier Rene Levesque later used the same phrase to describe the exclusion of Quebec.

On cue, current Premier Pauline Marois said she, too, wants to get to the bottom of the "constitutional coup d'état."

It may all seem like a lot of sound and fury, but Quebec's bitterness ultimately motivated Conservative prime minister Brian Mulroney to make two failed attempts -- remember Meech Lake and Charlottetown -- to get Quebec's signature on the Constitution. Then Quebec held a referendum in 1995 that very nearly resulted in separation.

The sovereignty movement is at a low ebb today, but history in Quebec has a way of repeating itself. If nothing else, the controversy should remind Canadians there is still unfinished business on the constitutional front.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition April 11, 2013 A12

History

Updated on Thursday, April 11, 2013 at 8:37 AM CDT: adds images

12:06 PM: Corrects spelling

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