Parliamentarians often express the desire to obtain the opinion of the Supreme Court on the constitutionality of bills. For example, parliamentarians thought of asking for the Supreme Court’s opinion in the recent Bill C-14 on medical aid to die. In this article, the author analyzes six contexts of hypothetical referral of Bill C-14: pre-filing, simultaneous referral to filing, post-filing referral, post-adoption referral, adoption Conditional on removal and referral to provincial courts. The conclusion is that while legislators want a court decision on the constitutionality of a bill, complications arise because the executive controls the current referral powers. Therefore,
It is easy to understand the desire often expressed by parliamentarians to obtain an opinion of the Supreme Court of Canada on the constitutionality of a bill. Certainly, judicial decisions that clarify the constitutionality of a bill can help legislators make choices and understand the Constitution 1 . A reference to the Supreme Court may also be strategic, if one wants to delay debate on the issue in Parliament as it is considered by the court 2 .
It was proposed to Parliament that the Bill C-14 3 on medical assistance to die recently filed or referred to the Supreme Court 4 . Although Bill C-14 has never been dismissed (and is now the subject of a court challenge ) 5 , Parliament’s experience with this bill shows us that, Potential interaction between Parliament and the courts in referral scenarios.
The Law on the Supreme Court allows the Governor in Council to refer matters to the Supreme Court 6 . These questions can be about federal legislation, whether it be legislation or legislation. The corresponding provincial legislation allows provincial governments to refer questions to provincial courts to challenge federal laws 7 .
The following text focuses on the six contexts for referring federal legislation: pre-filing, simultaneous referral to filing, post-filing referral, post-adoption referral, conditional adoption on remand and referral To the provincial courts. Each context is examined using a hypothetical reference to Bill C-14 as a backdrop.
While the Supreme Court Act also allows the Senate or House to refer private bills directly to the Court, 8 they are the least frequent bills and no request for referral has been made. Held since 1882 9 . Parliament would therefore not have been able to refer Bill C-14 directly to the Supreme Court because it was not a private bill.
Return before filing
The Governor in Council may send a draft bill and questions to the Supreme Court. Once the decision has been rendered, the government can file it in Parliament, amend it before filing it to reflect the findings of the Court, or refrain from filing it.
For example, in the Securities Act Reference , the Government’s proposed securities bill was referred to the Court for consideration but was not tabled in Parliament after the Court established that the matter was under provincial jurisdiction 10 . In the marriage reference between same sex , the Court ruled on the preliminary bill, which was then tabled in Parliament with the changes corresponding to the opinion of the Court 11 .
Even though Bill C-14, which had not been tabled in Parliament, could have been referred, the delay would have been a problem. The bill was drafted in response to a decision of the Supreme Court invalidating several laws and suspending the declaration of invalidity 12 . This suspension was subsequently been extended 13 . The government would probably not have received the Supreme Court’s opinion in time to legislate, either before the declaration of invalidity came into effect if it had chosen that route.
The Department of Justice has also stated that any legislative proposal could lead to litigation 14 . The government may have found a reference unnecessary because of the likelihood that such litigation would result in a court decision on the validity of the passage of Bill 15.
Simultaneous return to deposit
A referral to the Court may be initiated simultaneously with the tabling of the bill in Parliament. This happened recently when the government introduced amendments to the Law on the Supreme Court and sent simultaneously these provisions and questions to the Court 16 .
However, the legislative process is likely to outweigh the judicial process: a bill can be so modified that it no longer reflects the intent of Parliament. In other words, the questions put to the Court on a bill will differ according to whether it is a bill in its original form or an amended version.
It is difficult to ensure that the version of a bill tabled in Parliament is the same as that before the Court. It is not just a question of meeting the timetable of the legislative process; The judicial timetable must also be taken into account. Lawyers and judges would find themselves in a sensitive position if a provision were amended on Tuesday and the constitutional arguments were to be presented on Wednesday.
In the context of Bill C-14, it would have been difficult for the Court to receive only the text that will ultimately be passed. The parliamentary process can be unpredictable, and a reference to a version of a bill may be limited in scope in relation to a reference to the final version.
What would happen if the bill were ultimately rejected? This can happen after the Court had examined a reference, but before making a judgment, and therefore raise the question of the appropriate use of judicial resources 17 . That being said, such judicial review could have an impact on future legislative decisions.
Finally, do not forget that a new law enacted while it is still the subject of a referral to the Court can not be fully implemented before the relevant stakeholders will get the constitutional certainty 18 .
Return after filing
Another possibility is the referral of bills to Parliament. For example, in the Reference re Senate reform , the government has asked the Supreme Court concerning provisions from various Bills 19 .
If Bill C-14 had been referred back after being debated in Parliament, the same risks associated with an amendment or a rejection would apply, as would concerns with judicial resources, law application. However, the issue of parliamentary resources needs to be addressed. The government must not wait for parliamentary debate before making a referral, and Parliament may continue to debate the matter after it has been referred. While parliamentarians may have been squandering their time in the event that the Court finds the bill to be invalid, a parallel parliamentary debate could affect the Court’s decision if one takes into account the Use of Hansard 20. It is important to take into account the dynamics between the two institutions.
In addition, it is interesting to look at the perception of a post-tabling reference under Bill C-14. Would a referral have been seen as a compromise to appease criticism or as a capitulation reinforcing the idea that the bill should not be passed before the Court makes its decision? In practical terms, the risk of obtaining an unfavorable decision may be sufficient to choose not to make a referral after the bill is tabled.
Conversely, if a decision on a referral was made before the end of the proceedings in Parliament, it might be possible to amend a bill quickly to harmonize it with the decision, if necessary.
Considerations related to simultaneous and post-filing referrals are similar. However, depending on the nature of the bill and the timing of the referral, there may be additional considerations related to the legislative process. For example, if a private member’s bill is referred to the Court for its consideration in committee, the House committee could report the bill before knowing the decision of the Court 21 .
Referral after adoption
Laws that have received Royal Assent can also be a reference to the Supreme Court 22 . For example, the Margarine Reference was made by the Governor-in-Council after the passage of the Dairy Industry Act by the Senate and the adoption of a motion in the Court’s decision proposing to make a reference to the Court 23 .
If a referral occurs after the enactment of a law, compliance issues may be raised. In addition, will the stakeholders apply the law if they know that it is about to be repealed? In practice, such references are advantageous insofar as the law adopted continues to be applied in the same way. However, if it is invalidated, Parliament may have to start over from the beginning if it wants to legislate.
With respect to Bill C-14, a posteriori referral would have been possible. However, a constitutional challenge was launched without a referral shortly after Royal Assent 24 . The government can still choose to send it back if it wants to get the Supreme Court’s opinion more quickly than with the current challenge process. In addition, the government could make a reference for further questions, such as alternatives that could result in changes.
Conditional adoption on removal
Another possibility is in addition to that stated above, and it was considered as part of the study of Bill C-14 by Parliament. An amendment was proposed by the Senate wanting that special provision would not take effect until a reference to the Supreme Court upheld its constitutionality. Even if the Senate rejected this amendment, it is important not to forget this possibility. Parliament has also resorted to such provisions before 25 .
This approach undoubtedly addresses several concerns about the other contexts surrounding referrals by ensuring that the Court only gets the final version of the law and the parties concerned about Parliament. However, other elements need to be monitored. Suffice it to think of the proposed amendment to Bill C-14: That the Supreme Court render an opinion on section 53 of the Supreme Court Act stating that section 212.2 (2) (d) complies with the Charter Canadian Charter of Rights and Freedoms 26 .
Under the Supreme Court Act , the Governor in Council makes a reference. First, it is important to remember that the Governor in Council is not obliged to adopt an order of reference and may choose not to put the provision into effect. Second, it should be borne in mind that the Governor in Council has two options once the decision is made: pass the provision or choose not to do anything.
Even if it asks for the opinion of the Court on a single provision, Parliament may be advised by the latter that other provisions are unconstitutional. Moreover, the Court may consider it appropriate to refuse to answer a particular question 27 . While Parliament and the Governor in Council wish to obtain a simple “yes” or “no”, it should not be forgotten that the answer is likely to start with “yes, but …”.
What steps should the Governor-in-Council take if the Court determines that the paragraph is in conformity with the Charter, but only if the whole provision is interpreted or whether certain words are? How should the Governor in Council interpret a response starting “yes, but …” while respecting the intent of Parliament? For example, what would have happened if, in the context of Bill C-14, Parliament had referred a provision making group X eligible for medical aid to die, but that the Court’s conditional answer meant that Group X should also include groups Y and Z? If group X is clearly defined in the act, groups Y and Z may be groups that Parliament has not addressed or voluntarily excluded.
In fact, Parliament could start from scratch or look at the other provisions, according to the Court’s findings. In addition, equity issues could arise if some people benefit from the first version in a way that others can not be changed once changes are made.
Referral to Provincial Courts
A province may also request the referral of bills studied by Parliament under provincial legislation. It is in this context that the issue of delay becomes the most important.
For example, Alberta has requested a provincial reference to the GST Act . The Order in Council, referring the matter to the highest court in Alberta, defined the GST Act as Part IX of the Excise Tax Act , as proposed in Bill C-62, Amendment Act Excise tax, adopted by the House of Commons or as adopted if the bill is sanctioned before the start of the hearing 28 .
Although the referral recognizes the legislative process, it is difficult to apply. Just think of an action taken by the Senate, as the adoption of amendment 29 . In addition, there is no guarantee that a bill will complete the legislative process and will get royal assent, since its progression can be stopped especially after the prorogation or dissolution of Parliament 30 . Moreover, many circumstances can cause the Court to have before it a bill that is not progressing or that has been amended by Parliament since the referral.
Another example is Alberta’s federal gas tax dismissal. At the time, no bill was before Parliament; Only a ways and means motion had been proposed. The questions referred to the Court are hypothetical and included the statement “Canada’s Parliament passed a law under the terms of the motion of ways and means” 31 . Although the government is not likely to deviate from the text of the motion in its subsequent bill, this theoretical possibility should be considered, as well as the rejection or amendment of the bill.
More importantly, referrals to provincial courts may be appealed to the Supreme Court, as was the case for the GST Revision 32 and the Federal Gas Tax Rebate . The relevant statutes had both received Royal Assent, and the Supreme Court considered the adopted versions.
In the past, the provinces have had an interest in challenging federal legislation through the referral process. The obtaining of a judgment in their favor could strengthen their position in their provincial-federal relations and related negotiations, as was the case with the Federal Gas Tax Reform . However, a referral may allow provinces to assert their ability to regulate a question in a context where a federal law is proposed 35 .
With respect to Bill C-14, any province could have asked for a reference at any time, even if none chose to do so. However, it would have been necessary for the province to carefully formulate its questions to reflect the multitude of opportunities associated with the legislative process.
Other parliamentary considerations
The procedural rule which prohibits amendments making the enforcement of a conditional bill limits the changes proposed in the committees of the House to return a portion of the bill to the Supreme Court before its entry into force 36 . Moreover, such provisions were criticized by the President of the Chamber, who stated in 1975: “It seems to me that it is contrary to the spirit of an Act of Parliament to insert a condition requiring that part or passage of this law be referred to another institution for interpretation before it can enter into force 37 . ”
While this may be proposed today, as the Senate did on Bill C-14, it may raise doubts about the role of Parliament in relation to other institutions. The Convention on the affairs sub judice abounds in the same direction “impose some limits on freedom of members to refer in the course of the deliberations in cases pending before the courts” 38 .
In this regard, in 1948, the Speaker of the House found it inadmissible that an amendment proposing that the Supreme Court hear a matter considered at the same time by a committee, because “[w] The Supreme Court … the matter is brought before a court. [But t] he question can not be submitted with two public bodies 39 “. This decision was deemed unenforceable by the President of the House for referrals to provincial courts sought on a matter already pending before the courts 40 .
As mentioned above, it is possible that a bill may be considered by the courts and by Parliament at the same time. Some see it as the most effective, and others as a conceptual paradox. Application of the Convention on the affairs sub judice in such circumstances, particularly when the Court examines an issue at the request of Parliament, beyond the scope of this document 41 .
Even if legislators wish to obtain a judicial decision on the constitutionality of a piece of legislation, procedural difficulties may arise. Indeed, the executive controls the referral powers. Parliamentarians must therefore choose other ways to guide their legislative decisions on constitutional compliance.
Timing is very important in the context of legislative references. It may be difficult to ensure that the Court considers the correct version of a bill at the appropriate time. It may also be complex to ensure that Parliament will have time to respond to a notice on a referral, especially if a suspension of the disability period applies, as was the case with Bill C- 14.
When Parliament created the powers of dismissal of the federal government in 1875 42 , he gave the right to return the law of private bills, which are exceedingly rare today 43 . Over time, other referral powers have existed at the pleasure of Parliament 44 .
While the Parliament adopted certain measures to comply with the constitutionality of Bills 45 , we proposed further that guide the decisions of legislators 46 . That being said, it should be borne in mind that, where appropriate, Parliament may invoke the notwithstanding clause to protect a statute from judicial review.
Undoubtedly, the relationship between Parliament, the Supreme Court and the Constitution is complex and changing. However, the constitutional certainty of Parliament should not always be confirmed by the courts, and the constitutional hierarchy, if there is one, continues to generate debate among academics 47 .
Only Parliament can determine whether the current power of reference meets its needs and that of parliamentarians. Ultimately, even if legislators wish to make legislative references, it is up to them to fulfill their wishes.
* The author would like to thank Kate Puddister, Yan Zawisza, Stefanie Carlsey and Alexa Biscaro for their comments on an earlier version.
- Indeed, the first referral to the Supreme Court occurred when the Minister of Justice questioned Parliament’s ability to establish a legal person and offered to consult with the Supreme Court. The Senate then passed a motion referring the matter to the Supreme Court. Re The Brothers of Christian Schools in Canada , 1876, CarswellPEI 1, Cout. Dig. 1.
- For an article on motivations for referrals based on interviews with attorneys general, see Kate Puddister’s Ph.D. thesis, Invitation Judicial Review: A Comprehensive Analysis of Canadian Appellate Court Reference Cases , McGill University, December 2015 [ENGLISH ONLY] [forthcoming].
- Adopted as An Act to amend the Criminal Code and to make related amendments to other Acts (Medical Assistance to Die) , SC 2016, c. 3.
- See, for example, an exchange during question period about a referral and comments from a member in the Debates of the House of Commons , 42 th Parliament, 1 re session, n o 74, June 16, 2016 , Sections 4634 and 4616, respectively. See also the Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue n o 10, testimony of 6 June at 10 h 52.
- Julia Lamb v. Attorney General of Canada , Supreme Court of British Columbia, file 165851 (2016) [ENGLISH ONLY].
- The Supreme Court Act , RSC, 1985, c. S-26 and c. S-53.
- For a listing of the various provincial statutes, see Appendix A of Puddister (see footnote 2 above) [ENGLISH ONLY].
- See footnote 6 above, in Art. 54.
- The last question referred under this authority is the In re QUEBEC TIMBER COMPANY , 1882 CarswellNat 5.
- Reference re Securities Act , 2011 SCC 66,  3 SCR 837.
- Mary c. Hurley, Bill C-38, the Civil Marriage Act , Publication no oLS 502-F Information Service Parliamentary Research, Ottawa, 14 September 2005.
- Carter v. Canada (Attorney General ), 2015 SCC 5,  1 SCR 331.
- Carter v. Canada (Attorney General) , 2016 SCC 4,  1 SCR 13.
- Sessional Paper 8555-411-1169, at item 3.
- It is argued that “if judicial review is feasible for a specific case, that is the way to go.” Barry L. Strayer, The Canadian Constitution and the Courts , Second Edition (Toronto: Butterworths, 1983), Chapter 9, page 295.
- Reference to the Supreme Court Act , s. 5 and 6, 2014 SCC 21,  1 SCR 433, para. 11.
- For a detailed discussion of the advantages and disadvantages of cross-references, see footnote 15 above. 9 [ENGLISH ONLY].
- The application of provisions whose declaration of invalidity has been suspended may also be examined. Allison Jones, Ontario “likely” will not pursue charges under struck down prostitution laws, The Canadian Press, February 6, 2014 [ENGLISH ONLY].
- Reference Re: Senate Reform , 2014 SCC 32,  1 SCR 704.
- John James Magyar, “The Evolution of Hansard Use at the Supreme Court of Canada: A Comparative Study in Statutory Interpretation”, 2012, Statute Law Review , para. 33 (3), p. 363-389 [ENGLISH ONLY].
- Section 97.1, Standing Orders of the House of Commons .
- At the time of writing, the Minister of Justice considered the referral of Bill S201, the Non-Genetic Discrimination Act, which was passed by both Houses but has yet to receive Royal Assent. The House has passed a formal amendment that has not yet been considered by the Senate. Joan Bryden, “Ottawa asks for advice on new bill; Supreme Court to provide guidance on genetic non-discrimination rules “, Halifax Chronicle Herald , March 11, 2017, section A8 [ENGLISH ONLY].
- Reference re Validity of Section 5 (a) of the Dairy Industry Act ,  SCR 1.
- See note 5 above.
- An Act to amend the Licensing Act for the sale of liqueurs , 1883 (47 Vic., Chapter 32). See also An Act to amend the Special War Income Act , SC 1941, c. 27, Art. 29.
- Journals of the Senate , 42 th Parliament, 1 re session, 17 June 2016, n o 52.
- John P. McEvoy, Refusing to Answer: The Supreme Court and the Power Revisited (2005) 54 UNBLJ 29 [ENGLISH ONLY].
- Reference re the Judicature Act , RSA 1980, 1991 ABCA 248, Appendix.
- Parliament of Canada, PARLINFO, Bills Introduced in the House of Commons and Amended by the Senate from 1960 to the Present, http://www.lop.parl.gc.ca/ParlInfo/compilations/HouseOfCommons/ legislation / HOCBillsAmandedBySenate .aspx? Language = E .
- Parliament of Canada, PARLINFO, Action by the Other House on Projects that Have Not Received Royal Assent, http://www.lop.parl.gc.ca/ParlInfo/compilations/HouseOfCommons/ legislation / billsbyresults.aspx ? Language = E .
- Alberta Decree n o 1079-1080 [ENGLISH ONLY].
- Reference re Goods and Services Tax  2 SCR 445.
- Reference in respect of the exported natural gas tax  1 SCR 1004.
- Troy Riddell and FL Morton, “The Alberta Exported Gas Tax Reference,” American Review of Canadian Studies , Fall 2004, p. 485-509 [ENGLISH ONLY].
- See Ubaka Ogbogu, “The Assisted Human Reproduction Act and the Thin Line Between Health and Crime”, 2013, Constitutional Forum , Vol. 22, n o 1, p. 93 [ENGLISH ONLY].
- Compendium of Procedure of the House of Commons , Rules for the Admissibility of Amendments to Bills at Committee stage and Report, http://www.parl.gc.ca/About/House/compendium/ Web-content / c_d_rules admissibilityamendmentsbillscommitteereportstages-e.pdf
- Journals of the House of Commons , 30 th Parliament, 1 st Session, Vol. 121, Pt. 2, 16 October 1975, p. 772.
- Audrey O’Brien and Marc Bosc, House of Commons Procedure and Practice , Second Edition (Cowansville: Yvon Blais, 2009), p. 99.
- Journals of the House of Commons , 20 th Parliament, 4 th Session, vol. 89, April 9, 1948, p. 344.
- Debates of the House of Commons, 34 th Parliament, 2 e , Vol. 7, 8 March 1990, p. 9006-9009.
- Sub judice may also justify a referral; See footnote 2 above, p. 155-156 [ENGLISH ONLY].
- An Act to Establish a Supreme Court and an Exchequer Court for Canada , 38 Vict., C. 11.
- Parliament of Canada PARLINFO, Table of legislation introduced and passed by session, http://www.lop.parl.gc.ca/ParlInfo/compilations/houseofcommons/ BillSummary.aspx? Language = E .
- For example, various organizations could initiate a referral. See Reference by the Canadian Transportation Commission ,  SCR 333. See also Reference re Angliers Railway Crossing ,  SCR 451 [ENGLISH ONLY].
- Charlie Feldman, “Legislative Vehicles and Formalized Charter Review,” 2016, Constitutional Forum , Vol. 25, n o 3, p. 80 [ENGLISH ONLY].
- Canadian Civil Liberties Association, Charter First: A Blueprint for Prioritizing Rights in Canadian Lawmaking , September 2016, https://ccla.org/cclanewsite/wp-content/uploads/2016/09/ Charter-First-Report-CCLA.pdf [ENGLISH ONLY].
- “There are in fact three possible positions on the question of the last word concerning the interpretation of the constitution: (1) the power of judicial interpretation is subordinate to Parliament’s power of interpretation; (2) the power of judicial interpretation is greater than that of Parliament; (3) the power of judicial interpretation is equal to that of Parliament “. Denis Baker, Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation , Montreal: McGill-Queen’s University Press, 2010, p. 145 [ENGLISH ONLY].