Former Supreme Court justice Michel Bastarache just released a memoir of his long legal career, which had a focus on language issues. ((Canadian Press/Clement Allard))
Michel Bastarache says he never aspired to the life he ended up living: a career of achievement that included reaching the pinnacle of the Canadian legal system, the Supreme Court of Canada.
What he wanted most, he writes in a memoir launched in Moncton this week, was a rich family life with his wife and a lot of kids — a noisy home full of activity and learning.
But that life eluded him. His two children, Jean-François and Émilie, both died young of a rare congenital disease, "a pain as deep as an abyss, a pain that is always there, that casts a shadow on everything else," he writes.
"Nothing marked me more than the death of my two children. I had the career I had. But there will always be an emptiness that can't be filled."
Bastarache says he coped with his children's illnesses by throwing himself into his work as a constitutional lawyer, which culminated in his appointment to the nation's top court in 1997.
Published in French in December, the book is called: Ce que je voudrais dire à mes enfants — what I would like to say to my children.
Bastarache led a conciliation process between 2012 and 2014 for victims of sexual abuse by clergy. (CBC)
Co-authored by Radio-Canada journalist Antoine Trépanier, the memoir offers a rare firsthand account of key moments in the history of constitutional and language rights in New Brunswick and Canada.
It's a history in which Bastarache was a central and sometimes contentious figure.
The retired justice said in an interview he was urged to write his memoirs by minority-francophone communities he'd represented in court, who wanted his work on their behalf recorded for history.
But he didn't have time to properly go through archives until his publisher, the University of Ottawa Press, suggested he work with Trépanier as a researcher.
Richard Hatfield was premier of New Brunswick and put Bastarache in charge of writing Bill 88, which enshrined two school systems in New Brunswick. (CBC NEWS)
The narrative spans his childhood in Moncton and his work translating New Brunswick statutes into French after the advent of official bilingualism, to his positions as dean of law at the University of Moncton and CEO of Moncton-based insurance company Assumption Life.
It also includes two high-profile language episodes from the government of former premier Richard Hatfield: the adoption of Bill 88 and the Poirier-Bastarache commission on official languages.
Bill 88 enshrined education duality in provincial law, declaring that both anglophone and francophone communities had the right to their own school systems.
Bastarache reveals that he wanted to go much further in the original version of the bill with provisions that would commit governments to spend money to protect rights and to guarantee equitable economic development among regions and language groups.
A draft version also would have required a vote by three-quarters of MLAs to change or repeal the law.
'Oh my God, Michel'
But Hatfield's advisers worried the original version would give too much power to the courts to overrule elected politicians.
"Oh my God, Michel, I could never convince my cabinet to adopt that," Hatfield told Bastarache, according to the book.
Still, Bastarache says the version adopted was "an accomplishment, no doubt. … I told myself that there'll be no going backwards and eliminating our school boards." The provisions were eventually added to the Charter of Rights and Freedoms.
Not long after Bill 88, Bastarache co-chaired a contentious provincial commission on official languages that prompted a fierce backlash among some anglophones.
A regretful chapter
He attributes that reaction to a chapter in his report that described anglophone attitudes hostile toward bilingualism—a chapter he now regrets including.
"Anglophones perceived this section as an attack by francophones who wanted, it seemed, to take away the powers of the majority," he writes.
The commission pushed for dual English and French services via what he calls "a major administrative reorganization" of the provincial government involving decentralized regional work units.
It would have ensured the delivery of all services in both languages without doubling all government functions, Bastarache says.
When a country is confronted with a major problem, there are still institutions that can arrive at an imaginative solution
- Michel Bastarache
But the nuances were lost in the angry response to the chapter on attitudes, he writes.
"I think if I had to do it over, knowing the negative reactions from the public, the rejection of the document, the threats and the bad press, I would change my approach," he writes.
"Had we done things differently, we might have a had a better Official Language Act and the province might have made some progress."
Bastarche says his drive for linguistic equality was shaped by his childhood in Moncton, during a time when he says there was still overt discrimination against Acadians.
Bastarache was appointed to the Supreme Court of Canada in 1997, retiring in 2008. (Supreme Court of Canada/scc-csc.ca)
It led him to the law, including constitutional work representing minority-French communities from Alberta to Prince Edward Island to win access to education in their language.
Bastarache was named to the New Brunswick Court of Appeal in 1995 and two years later was appointed to the Supreme Court of Canada, just as the court was preparing for a reference case on whether Quebec had the right to unilaterally separate from Canada.
The court ruled that it did not but also that Canada would be obligated to negotiate if there were a clear referendum vote to separate.
The ruling, which Bastarache helped write, was widely seen as a nuanced compromise that clarified a legally ambiguous scenario.
Former prime minister Jean Chrétien asked the Supreme Court whether Quebec had the right to leave Canada unilaterally. (CBC)
"That's what we created and that did not exist at the beginning of the debate," he writes. "When a country is confronted with a major problem, there are still institutions that can arrive at an imaginative solution."
The book also tells the story of the landmark Beaulac decision from 1999, a ruling written by Bastarache that broadened official language rights.
In that decision, the court ruled 7-2 that the Constitution requires governments to do more than merely accommodate the minority language group by offering truly equal access to services in both English and French.
'Mission accomplished'
"I wanted to send a clear message to Canada as a whole that minority rights are not secondary rights," Bastarache writes. "I could say mission almost accomplished."
The Beaulac decision was cited last year when a judge ruled that Ambulance New Brunswick must provide bilingual services in all its ambulances.
Bastarache retired from the Supreme Court in 2008 and since then has taken on a number of roles, including as an independent arbitrator on compensation for victims of sexual abuse by priests in the diocese of Bathurst and archdiocese of Moncton.
Bastarache met with people claiming to be victims, evaluated the credibility and the seriousness of their accounts, and set an amount for their compensation based on previous court rulings.
In the book he rebuts criticisms that the amounts were not sufficient, saying he consulted more than 200 damage awards to come to his decisions.
"Personally, I didn't think that $250,000 can ever make up for the abuse," he says. "But I didn't have a choice. I had to award an amount equivalent to what a New Brunswick court would accept. The amounts were drawn from cases."
Jacques Poitras has been CBC's provincial affairs reporter in New Brunswick since 2000. Raised in Moncton, he also produces the CBC political podcast Spin Reduxit.
Trust that I spoke to Bastarache personally not long after he quit the Supreme Court and we did not like each other out of the gate but at least he admitted that he knew who I was. Ee have crossed paths many times since then. I first contacted him because of his doings with Cretien's old law firm and the Supreme court then later because of his cover ups of the wrongs of the Catholic Church and the RCMP. His bragging of the SANB and language rights definitely don't ring true because my barring document from parliamentary properties when he was still a judge is in ONE Language only and that is the first thing I made his well aware of when he went back top private practice in 2008. Methinks most lawyers in New Brunswick and many others elsewhere are well aware of the facts i just stated. I have no respect for this man whatsoever. Anyone can Google his name and mine to verify that I am not shy about my opinion of him I send him emails often N'esy Pas?
David Raymond Amos
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Methinks its truly amazing how many comments went "Poof" out of the gate N'esy Pas?
David Raymond Amos Methinks every Attorney General in Canada knows that on May 24th, 2017 while arguing the Crown in the Federal Court of Appeal I mentioned what Bastarache and the RCMP were up to and the use of Rule 55 against me in that matter was truly astounding N'esy Pas?
Lou Bell Reply to @David Raymond Amos: Doubt it . When one gets fewer votes in an election than what's on his nomination papers , the only people who remember them are the comedians .
David Raymond Amos "Anglophones perceived this section as an attack by francophones who wanted, it seemed, to take away the powers of the majority,"
Methinks thats exactly what happened N'esy Pas?
Mack Leigh Reply to @David Raymond Amos: Could not agree with you more. Add to the fact that Francophones chose to isolate themselves from the Majority here in NB .. Francophones chose to live in close knit isolated communities and to for the most part reject integrating with all others. The majority of people in NB or their ancestors came to Canada not speaking English and also made a conscious decision to fully integrate into this province and that included learning the English or French language. However the Francophone Elite are the only ones playing the victim card and demanding an apartheid style province and country. Time to bring balance back to our province. Bilingual where numbers warrant and pay for the retention of your own language and culture just as every other minority does.
David Raymond Amos Trust that I spoke to Bastarache personally not long after he quit the Supreme Court. We did not like each other out of the gate but at least he admitted that he knew who I was. We have crossed paths many times since then. I first contacted him because of his doings with Cretien's old law firm and the Supreme court then later because of his cover ups of the wrongs of the Catholic Church and the RCMP. His bragging of the SANB and language rights definitely don't ring true because my barring document from parliamentary properties when he was still a judge is in ONE Language only and that was one of the first things that I made him well aware of when he went back to private practice in 2008. Methinks most lawyers in New Brunswick and many others elsewhere are well aware of the facts i just stated. I have no respect for this man whatsoever. Anyone can Google his name and mine to verify that I am not shy about my opinion of him and I send him emails often N'esy Pas?
David Raymond Amos
Reply to @David Raymond Amos: For the record I did agree with Bastarache on one issue and I did approach Malcolm Rowe not long after he was named to his old position on the bench on Oct. 17, 2016
"A former Supreme Court of Canada justice from New Brunswick says it would be "a great error" for the federal government not to maintain a seat on the country's highest court for someone from Atlantic Canada"
John Hurley I read this article with great interest...of a person who is being open in sharing of his role. I sense much humanity.....what I don't look forward to is reading the bile (among a minority of positive messages!). Bon journée mes amis! Mes ancêtres francophones sont important á moi.
David Raymond Amos
Reply to @John Hurley: How am I doing?
Donald Gallant
Reply to @John Hurley:
It’s really is pathetic. I am Anglo. I don’t bother to read these trashing. The man has had an outstanding career. Cheers.
Marcel Belanger Merci M. Bastarache. Les Acadiens & Acadiennes qui ont garder leur culture et leurs langue dues au travaille que vous avez faites vous seront toujours en dettes.
David Raymond Amos
Reply to @Marcel Belanger: Yea Right
Lou Bell Reply to @Marcel Belanger: Another who fed from the SANB Liberal trough .
Neil MacLean I very much appreciate that NB became officially bilingual. My wife and I fully embraced this and raised our kids as fully bilingual even as our language skills aren't up to that - I'm still working on it, bit by bit. There remains a lot of Anglo resentment which I think is explained by the unequal opportunities that have arisen because it is so much more common for people who are raised primarily as francophones to achieve bilingualism. And that represents a huge failure of our schools - over 5 decades. That in part may have arisen by the financial implications duality approach taken to schools and some other aspects of governance. I don't know. No matter how you cut it, the required transformation had to be expensive and without duality bringing francophone education up to snuff would have been a lot more difficult. Now the Syrian refugees in Saint John including English speakers prefer to go to the French schools because the quality of schooling is better - which I find easy to believe. I celebrate the accomplishments of our francophone community and I feel very sad about the lagging enlightenment of so many native Anglophones. It is utterly normal in Europe for large majorities of people to be multi-lingual in the smaller countries. We can do better, and we should try because it is very much to our economic advantage to do so. These Syrian kids will have at least 4 languages.
David Raymond Amos
Reply to @Neil MacLean: Methinks you have partaken of that red kool aid far too much N'esy Pas?
Donald Gallant
Reply to @Neil MacLean: What a great post.
I wish there were French coffee shops in Saint John.
I would be there every day.
Toby Tolly Reply to @Donald Gallant: all coffee shops are multilingual dear
Marc Martin Reply to @Neil MacLean: Good post sir.
Marc Martin
Reply to @David Raymond Amos: Cry me a river...
Elle Leblanc Congratulations on doing your part in dividing NB into an apartheid state.
David Raymond Amos
Reply to @Elle Leblanc: Methinks many a true word is said in jest N'esy Pas?
Lou Bell The minority celebrated , the sold out majority didn't .All for votes and power , nothing less.
Marc Martin
Reply to @Lou Bell: Yet English people vote Liberal who are pro bilingualism...Are you sure you don't mean the minority isn't happy?
Lou Bell In America they fought segregation for decades and finally ended it . In NB they created it . Underhanded and without votes.
Paul Bourgoin
Reply to @Lou Bell: The more it changes the more it remains the same!
David Raymond Amos
Reply to @Lou Bell: Cry me a river
Lou Bell Reply to @David Raymond Amos: And who are you again ?
Marc Martin Reply to @Lou Bell: Segregation ? Where ?
Marc Martin
Reply to @Marc Martin: buses and schools for one
Greg William "He attributes that reaction to a chapter in his report that described anglophone attitudes hostile toward bilingualism—a chapter he now regrets including". He should have no regrets whatsover! History has been "sanitized" for way too long! We need to learn about our past, the complete past, warts, blemishes, scars and everything else!
Paul Bourgoin
Does this decision favor those in power? If so it will remain the same!
Mack Leigh
Reply to @Greg Williams: And with a completely biased point of view Bastarache totally neglects to make any mention of the hostile attitudes of many francophones towards all non-francophones . That door swings both ways even in todays society with many Francophones continuing to feel that they " deserve " more than any other linguistic community in Canada.. More forced frenchification. More marginalization and disenfranchisement of all non-francophones. More preferential treatment by all governments ... And it will continue until they have it....all.
David Raymond Amos
Reply to @Mack Leigh: Not all Acadians think like that Many are every bit as disgusted as the Anglos are as the constant waste of tax payer funds
Dunstable Kolbe A legacy of duplication of services like separate segregated schools, bus transport, etc for students, with the associated added cost for each and every NB resident. Plus students don’t benefit from naturally mixing to build common understanding in a school environment. Progress, some say.
Dianne Bastarache
Reply to @Dunstable Kolbe: Other provinces have separate school boards, including separate busing (Ontario as one example, based on public and separate ((Catholic) boards). There is no negative issue there, as it is not a duplication of service..its the same number of students, schools and buses and homeowners tax base (the portion pertaining to education) is directed according to the expressed wishes of the home owner/property tax payer. In my opinion, it is not an issue because it is not something that causes such an intensely emotional reaction, as it is here. As to **natural mixing**.....because the common media language is English, the only students who would benefit from this mixing are the French speakers.
Dunstable Kolbe
Reply to @Dianne Bastarache: Yes a few other provinces do have separate school systems, and they all have ongoing debates about the issue. All also have large annual budget deficits. I wouldn’t look to the likes of Ontario’s abysmal fiscal management as a guide to what is acceptable. NB receives the most money per capita from Ottawa for transfer payments of any province. Provincial taxpayers pay the rest, and have the second highest income taxes in the country. You can’t have your cake and eat it too. Today’s deficits re your children’s future financial burden.
Lou Bell
Reply to @Dianne Bastarache: You're wrong. Numbers of students on some buses are minimal , and in some areas individuals in mini vans are picking up minimal numbers . Drivers from areas ( e.g, Moncton ) have been paid extra time , meals , and accommodations to fill bus demands in other areas where there haven't been enough Francophone drivers. Check out many of the buse , running half full and less !
David Raymond Amos
Reply to @Dunstable Kolbe: Not I
Marc Martin Reply to @Dunstable Kolbe: Secregated schools ? How did the English population manage to secregate us Frenchies ?
Marc Martin
Reply to @Dunstable Kolbe: You think all of the periquation goes to school funding in NB?? lol ... Dual school system are mandatory as per the Federal government of Canada, or maybe we should have only French schools ?
David Peters Identity politics enshrined into law. Is that a good thing, or a very intrusive, divisive thing?
David Raymond Amos
Reply to @David Peters: I'll go with the latter
Mack Leigh Bastarache along with the SANB and good ole Mikey Doucet should be really proud of what they have done to this province while marginalizing all others.
Lewis Taylor
Reply to @Mack Leigh: Hey Lenny what did you do that would make NBers proud? whinning doesn't count.
David Raymond Amos
Reply to @Mack Leigh: I concur
Marc Martin Reply to @Mack Leigh: They should, we have a great province !
Ian Scott The question will eventually be is the minority French that he is enshrining or any other secular minority? If he takes a trip to BC he will see the minority is Asian, in the US it is of Spanish decent. So then what, they all get duality.?
Mack Leigh
Reply to @Ian Scott: What Bastarache has enshrined is the preferential treatment of one minority over and above every other man, woman and child in this country. What Bastarache has done is to promote segregation and forced social engineering at the expense of every other person of every other language other than French. What Bastarache has done has absolutely nothing to do with fairness, or equality but everything to do with control of our province and country...... Bastarache if he were indeed a true Canadian should be hanging his head in shame, in my opinion.
Ian Scott
Reply to @Mack Leigh: So how do you see enhancing services for minorities in general and in this province it is a large minority , like a third. ? I agree duality has been promoted as opposed perhaps to bilingualism and funding will approach 50% for dual services for a minority if it keeps going . We see PQ going in opposite direction.
Lewis Taylor
Reply to @Mack Leigh: No room for racism in NB. Leonard McLaughlin is the worst offender
David Raymond Amos
Reply to @Ian Scott: Who cares?
Marc Martin Reply to @Ian Scott: There is only 2 official language in Canada you didn't know ?
Marc Martin
Reply to @Mack Leigh: You don't have access to schools, hospitals or English service where you live ?
Donald Gallant A job well done Sir. Thank you for your services.
David Raymond Amos
Reply to @Donald Gallant: I disagree
Michael Levesque Bastarache did more to divide this province along linguistic lines than Gallant did.
Lewis Taylor
Reply to @michael levesque: Then give him a medal...at least he did something. all some do here is whine.
David Raymond Amos
Reply to @michael levesque: Methinks that may be the understatement of the year N'esy Pas?
Patrice Oneal So this who we blame for our debt-inducing, self destructive bilingual system?
Lewis Taylor
Reply to @Patrice Oneal: you can always leave.
Toby Tolly
Reply to @Lewis Taylor: or he can post his opinion which seems to bother you
Lewis Taylor
Reply to @Toby Tolly: Racism is not an opinion and my tax dollars should not fund a site that promotes it!
Mack Leigh
Reply to @Lewis Taylor: And yet here you are totally fine with wasting billions of taxpayers dollars on segregation, duality, marginalization of the majority and an apartheid -style governing. Wow, what a totally bigoted point of view.
David Raymond Amos
Reply to @Patrice Oneal: YUP
Toby Tolly
Reply to @Lewis Taylor: You would do well in China
Marc Martin: Reply to @Patrice Oneal: No one, its no destructive at all, only for a few whiners.
Marc Martin:
Reply to @Mack Leigh: Billions ?? LOL
Marc Martin:
Reply to @Toby Tolly: Its the opposite China is a communist country, it would suit you a few others here.
"A former Supreme Court of Canada justice from New Brunswick says it would be "a great error" for the federal government not to maintain a seat on the country's highest court for someone from Atlantic Canada"