If the ghost of communism is, or ever was, haunting Europe, Canadian constitutional law is haunted by what Fabien Gélinas described as the Ghost of Patriation. This ghost has been seen abroad again this week, stirred by an historian’s claims that, while the Supreme Court was considering questions about the constitutionality of the federal government’s proposed plan to seek Patriation without support from the provinces, the Court’s Chief Justice, Bora Laskin, leaked inside information about the Court’s deliberations to the government. The historian, Frédéric Bastien, apparently claims that this was an egregious violation of the separation of powers and that it made Patriation tantamount to a coup d’État and the resulting constitution illegitimate. Québec’s separatist government has seized on the claims, and even the Supreme Court has launched an internal inquiry, as the Globe reports.
Cooler heads are trying to put the ghost to rest by pointing out that, even if true, Dr. Bastien’s allegations are not enough to make out his claims about a coup d’État and the illegitimacy of the constitution. So Yves Boisvert argues in La Presse that while a breach of the secret of the Supreme Court’s deliberations, had it become known, might have been a cause for the Chief Justice’s resignation, it was not “a ploy that changed the course of history” (my translation). He points out that Justice Laskin found himself dissenting on the crucial question in the Court’s decision, usually referred to as the Patriation Reference, whether constitutional conventions prevented the federal government from acting unilaterally to amend the constitution. Indeed, Mr. Boisvert observes that whatever information Chief Justice Laskin might have given the government may well have been erroneous. Mr. Boisvert’s colleague, André Pratte, makes similar points in his editorial.
Messrs. Boisvert and Pratte are right. The coup d’État theory simply ignores the fact that by stating, in the Patriation Reference, that the federal government’s project was unconstitutional, albeit “only” in a conventional rather than a strictly legal sense, the Supreme Court thwarted unilateral Patriation. The Court’s majority, led by Justice Jean Beetz, held that constitutional conventions required “substantial” provincial support for constitutional amendments, which forced the federal government to negotiate with the provinces. Nine provinces eventually agreed on a (revised) Patriation plan, and the Supreme Court unanimously confirmed, in the “Québec Veto Reference,” that this was enough. The process of Patriation was constitutional in both the legal and the conventional sense.
Indeed, in my view Messrs. Boisvert and Pratte are wrong to concede, as both do, that Chief Justice Laskin’s actions amounted, or at least can be regarded as amounting, to a violation of the separation of powers. Separation of powers is an elusive concept, even by the low standards of constitutional theory, but if it has a core, it is something like the idea that political decisions of different sorts ought to be made by different institutions, whether because dividing political power in this way limits potential for abuse and tyranny, or because different institutions have peculiar strengths and good government requires decisions to be made by that institution which is most apt to handle each specific question. A pithy summary of the idea of separated decision-making is James Madison’s well-known phrase, in The Federalist No. 51, that each branch of government “should have a will of its own.” The actions of Chief Justice Laskin, even if they were as Dr. Bastien alleges, simply did not undermine the separation between the executive and the judiciary so understood. Even if he passed some information about the Supreme Court’s deliberations to the government, he did not involve the executive in the Court’s decision-making. He neither asked the Prime Minister how to rule nor took orders from him, even for himself, let alone his colleagues who disagreed with him. The ruling on the Patriation Reference was always in the Court’s hands, and the Chief Justice’s indiscretions did not change anything to that. Indiscretions, breaches of judicial ethics they were, if the allegations are confirmed. But not every breach of judicial ethics, however regrettable, is a violation of fundamental constitutional principle.
Patriation is bound to remain a murky and controversial episode of our history. As the men involved in it die, the first-hand memory of events fades. Perhaps we will never know the exact truth about what happened. On the other hand, the fading of the first-hand memories of the bitter divisions of those days should be an opportunity to leave behind the passions that reigned then. In order to do that, we would do well to leave the ghost of Patriation alone. He has haunted us enough, and earned his peace.