He left us this week, broke at the age of 53 by a devastating heart attack. Frédéric Bastien has not yet said his last word. Historian, author, professor, independence activist, he had developed an essential talent in democracy: pissing off the powerful. Especially those who believe themselves untouchable.
It was focused on the clues left behind by the Trudeauist judges called upon to decide — in complete independence, of course — on the validity of the Quebec law on the secularism of the state. He had noticed that some were openly displayed within the association of lawyers Lord Reading, openly opposed to Law 21 and intervening in legal actions against it.
This was the case of the former Chief Justice of the Court of Appeal of Quebec Nicole Duval Hesler, both a member of the bench of the Court in proceedings against the law and a member of the Association des juristes, who claimed that the promoters of the law suffered from “visual allergies” towards religious symbols. Before her retirement, she had also expressed her intention to lend a hand to one of the law firms challenging the law. It was a bit much.
Frédéric filed a complaint in 2019 for breach of the judge’s duty of reserve before the Canadian Judicial Council. But the calendars do things admirably well: the Council replied, a few weeks after the judge’s retirement in April 2020, that the appeal was now lapsed.
A real pain in the ass of the red judges, Frédéric also realized that two members of the Supreme Court, Russell Brown and Rosalie Abella, were to address the members of the Lord Reading in February 2020, during a fundraising event notably sponsored by a firm representing the National Council of Canadian Muslims in challenging Bill 21.
“How can two Supreme Court justices, in such a context, help finance Lord Reading and claim to be neutral and impartial in the decisions they will have to make? he asked. The Mouvement laïque québécois is also intervening in the Superior Court to defend Bill 21. Would it occur for a single moment to Judges Brown and Abella to agree to give a conference organized by the Mouvement laïque in order to help to finance? Excellent question.
He threatened to draw a new complaint to the Judicial Council against the two judges, “to denounce their involvement in a partisan organization, which is incompatible with their duty of reserve and impartiality”. In the hours that followed this denunciation, Lord Reading “postponed” the event, since its speakers – the supremes – had spontaneously seen fit to withdraw.
He also raised the case of Judge Nicholas Kasirer, appointed by Justin Trudeau to the Supreme Court of Canada after the Lord Reading association, of which he was then a member, had tabled a brief in the National Assembly challenging not only Bill 21 , but also the use of the notwithstanding provision. However, it is now certain that Judge Kasirer will hear from his seat in the Supreme Court the same arguments when the challenge to the law passes this stage. Should he recuse himself? Frederick had written to the Court to inquire about the situation, but had received no reply; maybe someone will ask the question again when the time comes.
He simultaneously pissed off the English Montreal School Board, claiming it was overstepping its mandate by using federal money — from the Court Challenges Program — to fund its action against Bill 21. Result: The School Board waived the funding from Ottawa.
Time bombs
Many of his fights continue without him. In particular his action to cancel the appointment of the current Governor General, Mary Simon. Doesn’t the Constitution say that “the public has, in Canada, the right to use French or English to communicate with the seat or the central administration of the institutions of Parliament or the government”? Isn’t there a more central institution than the Head of State?
We are also awaiting the decision of an Ontario court to rule on the illegality of the $100,000 donation offered by the City of Toronto to organizations opposed to the State Secularism Act. Frédéric claimed that this donation violated the City Charter and Ontario municipal law. If justice rules in favor of Frédéric and, as is likely, the City appeals the decision, his friends will carry the torch. “The greatest tribute we can offer to Frédéric is the continuation of his fights,” wrote me Étienne-Alexis Boucher, from Droits Collectifs Québec.
Frederic leaves behind the biggest legal time bomb imaginable. It aims to declare null and void the fundamental law of Canada, the masterpiece of Pierre Elliott Trudeau, the sacred text of all the red judges: the 1982 Constitution itself.
With several others, including his lawyer friends Daniel Turp, Maxime Laporte and François Boulianne, he asserts that the very adoption of this constitution violated a founding constitutional principle: that of the separation between the legislature, the executive and the judiciary, as well as its corollary, judicial independence. How does he know? Thanks to the previously confidential documents that he obtained during the research for his excellent work The Battle of London (Boreal).
British diplomatic dispatches testify not only to a violation of the separation of powers, but to real coordination, in 1980 and 1981, between two Supreme Court justices and Canadian and British diplomatic officials. Judge Willard Estey takes it upon himself to contact the legal experts of the Ministry of Justice to point out to them a legal problem in the drafting of their draft. In short, the judge corrects a priori the copy of the legislator whose legality he has the duty to judge a posteriori.
Better still, Chief Justice Bora Laskin repeatedly assures a Trudeau deputy and emissaries from London that he will “hit a few heads” of his colleagues at the Court to make them listen to reason. Their common objective: to ensure the success of the operation to repatriate the Constitution. Interesting detail: no dispatch indicates that these judges returned the favor to the other petitioners in the constitutional case, the eight provinces opposing patriation, including Quebec.
The Attorney General of Canada is obviously very annoyed by these arguments and is trying to convince the Superior Court to rule the motion inadmissible. It would obviously be surprising if the Trudeauist judges ultimately agreed with Frédéric and his friends. But if the Court agrees to hear the case, Mr.e Boulianne could ask Ottawa to produce confidential documents that he has been vehemently hiding since the publication of The Battle of London in 2013.
In the event that the red judges even forbid this historically crucial debate to take place, Frédéric would have proven that the Canadian legal house is founded on a scam and that it only exists because it is protected by scammers. It’s already huge. Thanks Frederic.
Father, columnist and author, Jean-François Lisée led the PQ from 2016 to 2018. [email protected]; blog : jflisee.org