Reference Cases/The Judicial Advisory Process and Federalism

Reference Cases/The Judicial Advisory Process and Federalism
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Institution
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Introduction
Increasingly, Canadians consider the judiciary to be critical on policy matters. The citizens look to the judiciary, rather than the legislature for finality on critical matters affecting the country. The Westminster parliamentary system indicates that a blending of powers exemplified in the executive and legislature is the origin of law and policy. However, the increasing cases of divisive partisanship and ideological decision making make governments cautions of developing policies that can be termed by the public as controversial. This is especially true when an election is approaching. When governments find themselves handling difficult decisions on matters pertaining to public policy, they have sought the opinion of courts. They have allowed the courts to rule on the legality or constitutionality of laws including those under consideration and if need be, return those laws to the legislature for further consideration. The mechanism through which this happens is called the advisory opinion or reference question. In Canada, a reference is a duty of the Supreme Court of Canada (SCC) Act. The legislation governing the application of a reference question enables the Governor-in-Council in the appropriate legislation to pose an issue of legal-political essence with the prospect that an appropriate advisory opinion will be given and hence guide the government in the legal and constitutional aspects of the issue under discussion. While judicial advisory opinions have been widely used in Canada, they have been unable to resolve intergovernmental relations and conflict resolution amicably.
Background
a) The Reference Power
The mechanism of reference cases is somehow unique to Canada. While the Supreme Court Act gets the reference feature from the emulation of the British common law, the UK does not use the reference power at the present. Similarly, courts in other common law jurisdictions like Australian and the United States have not been empowered to issue advisory opinions. However, it is worth noting that some states in the United States do allow the governor or the state legislature to ask questions. Similarly, civil law jurisdictions possess mechanisms to advise the government on constitutional issues, but none of them has in place the executive-centered approach applied in Canada, that reserves reference questions as the sole mandate of the executive through the Governor-in-Council. The introduction of the Supreme Court Act in 1875, the SCC, its predecessor, and the respective executives have produced more than 200 reference questions. The content of the advisory opinions has covered various aspects, with most of them focusing on matters of constitutional importance. Indeed, it is difficult, in any constitutional democracy, to find the highest court called upon to make a decision aimed at resolving a mega constitutional struggle. While Canada has held to reference cases, it is important to note that the results of these cases are technically non-binding. Thus implies that individuals are not bound to adhere to the advice of the court on the issues it addressed.[Moench, Lucas. "State Court Advisory Opinions: Implications for Legislative Power and Prerogatives] [Lawlor, Andrea. "The Supreme Court’s Use of Narratives in Issuing Advisory Opinions." (2018).]
b) Federalism
Federalism implies a political system where the power and responsibility in government are shared between the federal legislature and the provincial legislatures. In federalism, the individual parts do not have sovereignty and cannot legally secede. In Canada, the federal government has jurisdiction over the whole country. The respective provincial governments have jurisdiction over their portion of the population. The two levels of government derive their authority from the Constitution. Canada’s federalism has been subjected to debates over the years and remains a subject of great interest. Canadian federalism swings between extremes of centralized and decentralized control; while the federal government continues to seek more control, and hence a centralized approach, the provinces fight to maintain decentralization of power and responsibility.[Leach, Richard H. Studies in Comparative Federalism, Australia, Canada, the United States, and West Germany. No. 1039. Advisory Commission on Intergovernmental Relations, 1982.]
c) The Patriation Reference of 1981
In this reference, SCC decided that it was legal for the federal government to patriate and amend Canada’s Constitution without the consent of the provincial governments. Before the decision, it was apparent that to patriate and change the Constitution, the British Parliament needed to approve. However, it was not clear how much provincial support was needed to effect the change. In response, Prime Minister Pierre Trudeau brought together constitutional advisors. Besides, he drafted a set of demands calling for more centralization of the economy. The package also included a Charter of Rights and Freedoms. The premiers, however, did not agree with the proposals. This is because the premiers wanted to ensure the preservation of provincial powers or even an explanation of the same. The federal conservatives, under the leadership of Joe Clark, opposed the plan and utilized every device at their disposal to prevent the resolution from fruition. The matter was taken before provisional courts. Trudeau got a victory in both Manitoba Court of Appeal and the Quebec Court of Appeal. The two courts indicated that the federal government had the right to patriate and amend the Constitution without the consent of the provinces. However, a few weeks later, the matter was overturned by the Newfoundland Court of Appeal. As a result, Trudeau decided to seek the advisory opinion of SCC to addressing the issue. SCC held that while the federal government was not legally bound to seek the approval of the provinces for an amendment, it would be in a conventional sense unconstitutional if it did so without the agreement of the provinces.[Albert, Richard. "The Conventions of Constitutional Amendment in Canada." Osgoode Hall LJ 53 (2015): 399.]
d) Quebec Veto Reference of 1982
Canada’s constitutional development has often included disputes arising from the existence and utilization of vetoes. During the Patriation Round, Quebec indicated that a convention existed, which required unanimous provincial consent before constitutional amendments. If such a convention was in place, then it would enable each province to have a ‘veto.’ SCC had earlier considered the existence of such a convention in the Patriation Reference. In this case, the Court agreed to the existence of a convention mandating “a substantial degree of provincial consent.” However, in Quebec Veto Reference, the Court made it clear that this was not a requirement of unanimity.[Choudhry, Sujit. "Ackerman's higher lawmaking in comparative constitutional perspective: Constitutional moments as constitutional failures?." International Journal of Constitutional Law 6, no. 2 (2008): 193-230.]
e) Reference re Secession of Quebec 1998
This landmark ruling by SCC entailed the legality of the secession of Quebec from Canada and both the Canadian and international law. In the judgment, SCC unanimously held that such a unilateral declaration would be a violation of both Canadian law and international law. Nonetheless, the Court indicated that a constitutional amendment could make a secession possible. In this regard, the Court pointed out that in case Quebec undertook a referendum on secession and won with the majority, then the remaining parts of Canada would be obligated to negotiate with Quebec on the terms of secession. The Court further declared that secession should adhere to the basic principles of law, federalism and ensure the protection of the rights of the minorities. The Clarity Act of 2000 laid out what constituted a clear question for secession.[Radan, Peter. "Constitutional Law and Secession: The Case of Quebec." Macarthur L. Rev. 2 (1998): 69.]
Arguments against Reference Cases
One of the contention against the use of reference cases relates to the high risk in their handling and the political consequences that may result. Intergovernmental relations and conflict resolution in Canada is an important issue that should be handled carefully. Since the issues at hand are weighty, the Court risks making missteps while attempting to answer controversial questions and matters involving unsettled political questions. A majority of the issues presented before SCC as reference questions normally involve issues that have the potential to change the course of the history of Canada. This places a heavy burden upon the Court to decide on a matter, whose outcome affects the lives of many people. Whereas the Court will be careful in the handling of reference questions, it is prone to making missteps. Such errors, however subtle they may be, can cause tensions between government organs, as opposed to addressing the issue at hand. For instance, both the Patriation Reference of 1981 and the Quebec Veto Reference in 1982 demonstrate the potential dangers in reference cases. In the two cases, the matters under consideration were of major concern to the country. The matters before the Court were highly contested and were at the heart of Canadian federalism. In its determination in both instances, the SCC used its adopted methodology inconsistency. This contributed immensely to widening the gap between the province of Quebec and the rest of the country.[Leach, Richard H. Studies in Comparative Federalism, Australia, Canada, the United States, and West Germany. No. 1039. Advisory Commission on Intergovernmental Relations, 1982.]
The judiciary is forced to decide in the absence of a wide range of considerations. The Parliament of Canada and all the provincial legislatures have made a provision that allows the executive to seek advisory opinions from the courts. Due to this provision, close to a third of judicial ruling on constitutional questions have been based on such judicial advisories. While the decisions arising from such references may not be authoritative as those from the usual litigation, the Canadian courts have treated them as equally authoritative. It is worth noting that a direct reference to an appellate court reduces the legal doubt arising as the case moves via the hierarchies of the court system. However, unlike in normal litigation, the judiciary is forced to decide without considering the wide range of issues concerning the case. Where there is a real dispute on a text of actual law, the court has time to consider the issue through a wider perspective. As a result, the decision made in normal litigation is more likely to satisfy the public than one reached through an advisory opinion. This is because in reference cases, the SCC does not have the advantage of perusing through the decisions of lower courts. Hence, such a decision is likely to be narrow, compared to one rendered in a normal judicial case.[Mallory, J. R. "Conflict Management in the Canadian Federal System]
Additionally, reference cases entail the non-binding nature of the decisions of SCC. The Court delivers non-binding advisory opinions, compared to the ordinary legal cases. In this regard, one would expect that refe...