The Supreme Court Speaks – or Doesn’t – on L’affaire Laskin

The office of the Chief Justice of Canada issued the following press release April 26, 2013:

FOR IMMEDIATE RELEASE

The Supreme Court of Canada conducted a thorough review of its records and it does not have any documents relevant to the alleged communications by former Chief Justice Bora Laskin and former Mr. Justice Willard Estey in relation to the patriation of the Constitution of Canada. This concludes the Court’s review.

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POUR DIFFUSION IMMÉDIATE

La Cour suprême du Canada a complété un examen exhaustif de ses dossiers. Ceux-ci ne contiennent aucun document au sujet de communications que l’ancien juge en chef Laskin et l’ancien juge Willard Estey auraient eues avec des tiers relativement au rapatriement de la Constitution du Canada. Ceci conclut l’examen de la Cour relativement à cette question.

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Comments

  1. If I could provide a personal note, I was part of the Ontario team at the Attorney General’s Ministry during the time when the Patriation Reference was being argued. I was at the Cambridge Lectures in July 1981, when both the Chief Justice and Justice Estey absented themselves from a dinner at which three Attorneys General (Chrétien, McMurtry and Romanow) chaired by the Canadian High Commissioner (the elder) Paul Martin, debated patriation.

    The two judges were scrupulous about not talking about the case, so it is no surprise that nothing was found.

    But it’s not as if their judgments came as any surprise, given their views.

    The Havers note doesn’t reveal any huge discretions.

  2. I suppose it’s not very surprising that neither of the judges alleged to have disclosed the course of the Court’s deliberations did so in writing or kept a memo to his file.

    This is however a tempest in a teapot, surely. No one has alleged that the judges discussed the details of the case or heard argument from the Prime Minister or the British officials that had not been made in open court. They are – as alleged – merely conversations about how the discussions were going, no more.

    So: inappropriate communications, if they occurred, but in any event nothing affecting the content, much less the validity, of the decision of the Court.

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