The FLQ Trials, 1969-1971: Judicial Tensions and Constitutional Questions

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"The judiciary was reduced to the role of rimekeeper, keeping track of who attended what meetings and spoke or communicated what statements on behalf of an association"--Lyon 140

In times of crisis, writes F. Murray Greenwood in volume one of Canadian State Trials, judicial attitudes historically have reflected deference to executive authority (1996). This paper explores an historical lineage of this pattern and draws on the 1970 October Crisis as a key example. Patterns of deference and confrontation as juridical concepts date back to Tudor and Stuart times when questions of judicial independence were debated by British jurists Sir Francis Bacon and Sir Edward Coke. On one hand, a Baconian approach "favoured the executive power despite the law;" while on the other, a Cokean interpretation of judicial responses favoured upholding "the law despite governmental desires" (242). Thus, Greenwood coined the term "Baconian judiciary" to describe judicial tendencies to defer to the authority of the crown or executive government. Numerous historical colonial examples have demonstrated that in times of declared emergencies, including during treason and sedition trials in Upper and Lower Canada in the nineteenth century and during the French Revolution, these tendencies persisted as the dominant judicial attitude and I argue they persist today.

On 21 October 1970, as the bill that would enable war measures expediently passed through the Canadian Senate, Conservative Senator Michael Grattan O'Leary proclaimed--only four days following the death of Pierre Laporte--that this was "a crisis unparalleled since the 1837 Rebellion" (Bouthlier and Cloutier 154). The senator's reference is worth some consideration. In the second volume of Canadian State Trials, historian Jean-Marie Fecteau explores the aftermath of the 1837-38 Rebellions and the trouble of what to do with all the imprisoned patriotes detained under the authority of Governor Gosford's declaration of martial law. This question sparked a response from the British House of Lords who dispatched Lord Durham to untangle the political and legal deadlock in Lower Canada. Lord Durham exercised his power with exceptional breadth, issuing punitive ordinances and modifying existing legal provisions to try the prisoners. The bench, for the most part, remained quiet.

One member of the bench, however, Judge Elzear Bedard of the Court of King's Bench of Quebec confronted Lord Durham's unilaterally declared ordinances in the case of a young imprisoned patriote named Firmin Moreau (Fecteau 226). In his dissenting opinion, Judge Bedard argued that the ordinances were invalid with the logic that "[they] modified the British law on vagabonds, while the law creating the Special Council prohibited if from modifying laws passed by the British Parliament" (226). This was a rare example of pre-confederation judicial confrontation with British imperial power in Lower Canada, an exception to the usual deferential judicial response to executive powers in Canadian history. Lord Durham strongly criticized Bedard's dissent, suggesting that such actions narrowly limited effective legal process (227). The relationship between courts and the special legislative council during the rebellion was a relationship of deference to the ruling authorities. As a result, Justice Bedard, as well as two other judicial colleagues (Justices Philippe Panet and Vallieres de Saint-Rea) were removed from the bench (albeit temporarily as they were all eventually reinstated) and the writs of habeas corpus they had challenged or granted were deemed illegal and void (Watt 486).

This account demonstrates the historical legacy and importance of judicial independence and security of judicial tenure. A judge should not be arbitrarily removed from the bench if he or she disagrees with the government in power. This key historical context sheds light on the importance of contextualizing and analyzing trends of judicial deference and moments of judicial confrontation. …