On the Perils of Using Reference Cases for Intergovernmental Affairs and Conflict Resolution in Canada

On the Perils of Using Reference Cases for Intergovernmental Affairs and Conflict Resolution in Canada

Over the course of politicking amongst Canada’s many jurisdictions, namely among the provinces and the federal government, there are times when they become stranded in their irresolution on certain matters of great controversy. In some of these moments, the disputant governments turn to Canada’s judicial wing by launching ‘reference cases’ for the courts to deliver advisory opinions on a given set of matters. It is hoped that these judicial opinions, typically those from the Supreme Court of Canada, will break the inertia of the governments on the issues at hand, although it often entails one or more of the parties leaving the courtroom less than satisfied. Three of the most critical reference cases in Canadian history deal specifically with intergovernmental relations, those being the Patriation Reference (1981), the Quebec Veto Reference (1982), and the Quebec Secession Reference (1998). They are also the most representative of why resorting to the courts to effectively arbitrate on contentious political matters between governments is inadvisable. In the courts’ endeavour to provide coherent answers on the complex political issues they are presented with, they greatly risk mishandling these cases which can seriously aggravate relations among the provinces and the federal government. Aside from the potentially dire consequences for Canadian unity that using reference cases for intergovernmental relations and conflict resolution carry, the advice the courts deliver in these cases can be manipulated by governments and have effects that the courts may never have expected or intended, further reinforcing the danger of these reference cases.

There are several necessary features of reference cases to be aware of if the conclusions of the following greater analysis are to be understood. They are “forward looking” in the sense that they “permit a government to submit to an appellate court (or, Supreme Court, in the case of the federal government) questions regarding proposed legislation or a proposed course of action.”¹

Where legal cases examine conduct in the past, reference cases examine matters that have yet to happen. The S upreme Court Act enables the subject matter of the questions to be quite broad and not limited to constitutional or legal issues, stating in Section 53(2) that the Supreme Court may consider “questions of law or fact concerning any matter…”² The courts have “confirmed that they retain the inherent discretion to decline to answer the questions posed, should they fail to raise any concrete or justiciable issues or should insufficient or inadequate material be put before them.”³

Perhaps the most important feature of a reference case is that its results are technically non-binding, meaning that there is absolutely no legal obligation to follow the advice of the Court on the questions it answered.⁴ One should bear these basic facts of reference cases in mind as they attend to the analysis below.

The first contention against the use of reference cases for intergovernmental relations and conflict resolution pertains to their high risks in their handling by the Supreme Court of Canada and the severe political consequences they may entail. The risks in question are for the potential of the Court to make critical missteps in these cases in their attempt to coherently answer highly controversial and unsettled political questions, which often dovetail with issues involving intergovernmental relations. Those missteps, however subtle they may be, can further inflame tensions between governments rather than resolve the political issues between them. The Patriation Reference of 1981 and the Quebec Veto Reference that followed in 1982 serve as the strongest examples of the direct risks and consequences of reference cases involving intergovernmental relations and conflict resolution. Both of them dealt with the hotly contested issue of constitutional convention, a matter situated at the heart of Canadian federalism. Between the Patriation Reference and the Quebec Veto Reference, the Supreme Court of Canada applied its adopted methodology inconsistently in its complicated and controversial analyses that played a role in widening the growing rift between the province of Quebec and the rest of Canada.

At issue within the Patriation Reference of 1981 was whether the federal government could make a request to the British parliament to amend the Canadian constitution (then the British North America Act 1867) without needing the consent of the provinces, and whether the federal government was legally and/or conventionally obligated to bear the consent of all the provinces to enact an amendment to the constitution.⁵ The unease and subsequent controversy with the case begins when the majority of the Court held that while the federal government was not legally bound to seek the consent of the provinces to petition the British parliament for an amendment to the constitution, ⁶ it would be “unconstitutional in the conventional sense” if the federal government did so without the agreement of the provinces.⁷ The precise nature of constitutional conventions has been deeply controversial since the late 19th century and persists to this day with little consensus. ⁸ Some scholars such A.V. Dicey and Eugene Forsey insist on constitutional convention being strictly political norms and not at all connected to law.⁹ Others, such as Ivor Jennings, espouse the view that conventions and law are inextricably linked in their substance.¹⁰ Of critical concern within the scope of the two reference cases in question is the analytical tool that Ivor Jennings devised to ascertain the existence of a constitutional convention, a test that the Supreme Court of Canada fully embraced in both the Patriation Reference and Quebec Veto Reference. This test, hereinafter known as the ‘Jennings Test’, poses three questions in determining the existence of a constitutional convention: (1) What are the precedents? – (2) Did the actors believe they were bound by the rule? – (3) Is there a reason for the rule?¹¹ As one may notice, the Jennings Test is heavily reliant on precedents and as Andrew Heard argues, the test is unreliable because of its very dependence on precedents.¹² The emphasis on precedent “not only tightens the reins of history on constitutional development but also introduces the ambiguity and contradiction inherent in precedent.” ¹³ Some of the dilemmas are whether the contradictory evidence demonstrates that no “binding” rule exists, whether an actor is mistaken on the terms of an alleged rule, and whether some rules transcend other rules in terms of their status (a ‘hierarchy’ of rules).¹⁴

There is also the issue of institutional bias when weighing the statements of various political actors in assessing the existence of a convention; there is bound to be some division of opinion between the provincial and federal actors on rules governing federal-provincial relations.¹⁵ Yet despite these flaws of the Jennings Test, this test alongside the general precedent-based approach forms what Andrew Heard calls the “orthodox view of conventions,” and was adopted by the Supreme Court of Canada when it took up the Patriation Reference in 1981.¹⁶ One should be mindful of the second component of the Jennings Test for it is on this question where the Court would make a serious mistake between the Patriation Reference and the Quebec Veto Reference.

The second component of the Jennings Test asks whether the actors believed they were bound by the alleged rule, but is notably silent on how this is to be properly assessed. The Supreme Court sensibly chose to examine the statements of the political actors in the Patriation Reference for evidence of acceptance of a purported convention among those actors, yet they appeared to narrowly focus on this mode of proving that acceptance. Andrew Heard criticized the majority for failing to properly account for the historical context in which the statements it examined from 1907 and beyond were uttered, when there were profound shifts in the nature of Canadian federalism.¹⁷

One of the examples he provides is that the Court, for evidence that unanimity among the provinces was not required for a constitutional amendment, “relied on ambiguities in ministerial statements about whether provincial consent or consultation was required (or just desirable) to pass the 1940 British North America Act relating to unemployment insurance.” ¹⁸ Heard stresses that those statements were made at a time when the federal government continued to invoke its power to disallow provincial legislation, providing “clear evidence of a belief that the federal government was superior to the provinces and its views could prevail.”¹⁹ This belief would no longer be supported in 1961 when Prime Minister John Diefenbaker “reacted vociferously to the Lieutenant Governor of Saskatchewan’s reservation of a bill.” ²⁰ Heard also notes that the most recent statements the Court considered dated from 1965, even though the majority acknowledged that the federal government failed to advance the Victoria Charter in 1971 because of Quebec withdrawing its support for it.²¹ Although he cites these examples in arguing how the majority was not properly considering the historical contexts of the statements it examined, it reveals that the Court was latently fixated on political statements as the preponderant mode for proving the acceptance of a purported constitutional convention among political actors. As implied in Heard’s criticism, the statements of political actors may not necessarily align with the constitutional practices of the time period. While there may have been ambiguities in the ministerial statements at the time of the unemployment insurance amendment in 1940, it was also a time when it was accepted constitutional practice for the federal government to invoke its power to disallow provincial legislation with the embedded belief that the federal government’s position was superior to that of the provinces. Again, the Court only examined statements of political actors up to 1965 despite citing later precedents, such as Quebec’s rejection of the Victoria Charter in 1971, as evidence suggesting a constitutional convention being present at the time. This latent fixation with the statements of political actors as the preponderant mode of proving the acceptance of a purported constitutional convention among political actors would persist into the Quebec Veto Reference, and spell serious trouble for the Court.

In the Quebec Veto Reference of 1982, the Supreme Court was confronted with an argument by Quebec that there was a “principle of duality” that gave rise to a conventional veto power for Quebec, substantiated by precedents already examined in the prior Patriation Reference. ²² However, the Court said, “It will not be necessary in our view to look further into these matters because this submission [on the principle of duality] must be rejected, the appellant having failed completely to demonstrate compliance with the most important requirement for establishing a convention, that is, acceptance or recognition by the actors in the precedents.”²³ The Court was referring to the second part of the Jennings Test which asks whether the relevant actors felt that they were bound by the alleged convention, those actors being the other provinces and the federal government in this case. The judges did not seem willing to examine the argument of principle and instead insisted on a much more austere and narrow usage of the Jennings Test’s second component. The Court demanded recorded statements of the relevant political actors explicitly endorsing the convention as being essential to prove acceptance of the alleged convention that Quebec was arguing for its establish as existing.²⁴

Jean-Francois Gaudreault-DesBiens illuminates the critical misstep that the Court made when it took this narrow approach in applying the Jennings Test’s second component. Although he does not explicitly mention the Jennings Test, he must have been referring to its second component when he states that “the Supreme Court did not feel compelled to examine this argument [on the principle of duality], because it had earlier found that there was no evidence that the relevant constitutional actors had accepted or recognized a consistent political practice of a Quebec veto over any constitutional amendment affecting its powers.”²⁵ In doing this, the Court had “imposed a higher evidentiary standard than it had done in the Patriation Reference, where it had acknowledged that acceptance of a conventional rule could be merely inferred from constitutional practice.”²⁶ Unfortunately, DesBiens does not elaborate on where in the Patriation Reference the Court acknowledged that a convention can be inferred from constitutional practice, so it is necessary to attempt to identify where he made this finding. In the section where the majority applied the second component of the Jennings Test, they alluded to a 1965 White Paper that indicated one of four general principles being “that the Canadian Parliament will not request an amendment directly affecting federal-provincial relationships without prior consultation and agreement with the provinces.”²⁷ The White Paper further stated, “This principle did not emerge as early as others but since 1907, and particularly since 1930, has gained increasing recognition and acceptance.”²⁸ The Court did seem to acknowledge that convention could be inferred from constitutional practice in their following statement on the text adjacently preceding the listed principles in the White Paper: “It refers to the laws and conventions by which a country is governed and to constitutional rules which are not binding in any strict sense (that is the legal sense) but which have come to be recognized and accepted in practice as part of the amendment process in Canada [emphasis added].” ²⁹ What is interesting is that the Court appeared to derive this possibility – that the acceptance of a convention can be inferred from constitutional practice – from an official statement by a political actor, and is therefore supposed to satisfy the Court by its own apparent evidentiary standard favouring political statements.

Quebec saw this discrepancy in the Court’s reasoning as evidence of a judicial double- standard and accusations of bias were levelled against it. ³⁰ The Supreme Court of Canada’s reputation would be so wounded in Quebec that it became known in the province as “la Cour des Autres’ (the Other’s Court).”³¹ In Peter Russell’s view, the destruction of the trust between French and English Canada that resulted from the Quebec Veto Reference had such far-reaching effects so as to have a role in influencing the narrow outcome of the 1995 Quebec secession referendum.³²

The Patriation Reference and the Quebec Veto Reference were two intimately interrelated cases that are truly illustrative of the risks and severe consequences of reference cases dealing with intergovernmental relations and conflict resolution. The risks come in the form of the judiciary, typically the Supreme Court of Canada, resorting to questionable methodology on political issues that can lead to inconsistencies in their analyses that not only exacerbate the issues they were called to address, but inflame tensions between governments. The Court’s adoption of the Jennings Test in the Patriation Reference set the stage for the critical misstep that followed in the subsequent Quebec Veto Reference, where it would err in applying that same methodology and cause serious political fallout on unity between Quebec and the rest of Canada.

Earlier in this analysis, it was stated that the advisory opinions delivered by the Supreme Court of Canada and the Courts of Appeal are technically non-binding, which represents a crucial distinction between reference cases and ordinary legal cases. This distinction, however, is virtually meaningless when one considers the normative treatment of judicial advisory opinions in the public, legal, and political realm. The word of the Supreme Court of Canada carries immense influence over the affairs of the nation, whatever it may be on. It is recognized broadly by observers that the opinions delivered by the Court on matters in reference cases are granted such significant weight that they become effectively binding on a normative level. Peter Russell notes that “courts and governments have continued to accord as much weight to judicial decisions rendered in reference cases as to decisions resulting from ordinary cases.”³³ Other observers such as Peter Hogg, F.L. Morton, and Erika de Wet have expressed similar sentiments.³⁴

Indeed, it is difficult to overstate the influence the Court wields on the public stage, even in modern times. John Schudlo cites a contemporary example where one of the Supreme Court’s judicial opinions was used as part of a political maneuver during an election. It was during the first leaders’ debate of the 2015 federal election when Justin Trudeau was anticipated to be questioned on the perilous subject of Quebec secession.³⁵ NDP leader Thomas Mulcair had publicly assumed the position that a 50% plus one majority in a Quebec referendum would be sufficient to trigger talks on Quebec’s separation from Canada.³⁶ Mulcair had pressed Trudeau on what would be the threshold considered acceptable to him in order to effect the process of Quebec’s secession; the NDP leader demanded that he commit to a number.³⁷ “Nine,” was Justin Trudeau’s answer. “Nine Supreme Court justices said one vote is not enough to break up this country.”³⁸ This was a direct allusion to the Quebec Secession Reference wherein, according to Schudlo, the whole Court held that “only a ‘clear majority’ − not the simple majority advocated by the NDP − would warrant the opening up of secession talks.”³⁹ There is an inaccuracy in what Schudlo is saying about what the Court meant by a “clear majority.” The Court explicitly stated that “it will be for the political actors to determine what constitutes a ‘clear majority on a clear question’ in the circumstances under which a referendum vote may be taken.”⁴⁰ This does not necessarily mean that a simple majority will be insufficient by default, but it will be up to said ‘political actors’ to determine what sort of majority is sufficient, whether or not that includes a simple majority. From the perspective of Schudlo, it was considered a defeat for Mulcair and a victory for Trudeau in the exchange despite the vagueness of Trudeau’s answer, all because it “capitalized on the Canadian population’s unwavering reverence for its highest court.”⁴¹ The vagueness of Justin Trudeau’s answer stems from the lack of clarity on whether he was rejecting a simple majority for commencing negotiations for Quebec’s secession or whether he was referring to a simple majority as not effecting secession without negotiation; the latter view was what the Court expressed.

Schudlo is leading on to something more when he speaks of the apparent strategic deference on the part of politicians to the Court. It cannot only be scholars that are aware of the normatively binding effect of judicial opinions from reference cases. Government actors must also be cognizant of the influence of the Court’s opinions, since Warren Newman, counsel to the Attorney General of Canada in the Quebec Secession Reference, said that reference opinions “have always been treated as binding by our courts, legislatures and governments.”⁴² Peter Russell hints that this cognizance has been present for quite some time when he notes that the Manitoba Language Reference also served to “influence the Liberal party’s leadership contest [in 1984].”⁴³

The normatively binding nature of judicial advisory opinions introduces an eerie implication that the opinions from reference cases may be subject to manipulation by governments. One case of such manipulation lies within the Clarity Act, a statute legislated in 2000 directly informed by the advisory opinion delivered in the Quebec Secession Reference which gives the House of Commons the legal ability to determine what constitutes a ‘clear majority’ in the wake of a referendum on seceding from Canada. According to Section 2(2) of the Act, for the determination of the so-called ‘clear majority’, “the House of Commons shall take into account (a) the size of the majority of valid votes cast in favour of the secessionist option; (b) the percentage of eligible voters voting in the referendum; and (c) any other matters or circumstances it considers to be relevant.”⁴⁴ Section 2(4) stipulates that the “Government of Canada shall not enter into negotiations… unless the House of Commons determines… that there has been a clear expression of a will by a clear majority of the population of that province that the province cease to be part of Canada.”⁴⁵ These features of the statute effectively amount to enabling the federal government to set the democratic terms of what would constitute a legitimate call for secession from Canada. They can define a ‘clear majority’ as one that does not consider a simple majority (50% + 1 vote) to be sufficient to warrant the commencement of negotiations for secession, although it is possible for them to find a simple majority to be sufficient.

In the aftermath of the opinions delivered in the Quebec Secession Reference, the sovereigntist Premier Lucien Bouchard agreed with the Court in a preliminary statement partly reading: “What happened was the reverse: the Court demonstrated that Ottawa’s arguments do not stand up to analysis, and it struck at the very heart of the traditional federalist discourse.”⁴⁶ Yet Premier Bouchard harshly condemned the Clarity Act for “[inventing] a new way to calculate votes and with the elegance of an elephant proceeded to change the fundamental rules of majority: It created a floating majority.”⁴⁷ Bouchard’s Parti-Quebecois government would pass Bill 99 that rejected the Clarity Act outright.⁴⁸ At first glance, it seems odd that the Bouchard government would approve of the answers from the Quebec Secession Reference, but then castigate the Clarity Act when the statute was informed by the same answers delivered from the same reference case. A closer examination reveals that the Chrétien Liberals in 2000 had creatively interpreted the Court’s answers in the reference case to legitimize the passage of the Clarity Act.

A defence of this claim that the Chrétien Liberals’ manipulated and misrepresented the Court’s advice from the Quebec Secession Reference will now follow. It was mentioned above that James Schudlo had inaccurately stated that in the Quebec Secession Reference, “the Court unanimously held that only a ‘clear majority’ – not the simple majority advocated by the NDP – would warrant opening up secession talks.” ⁴⁹ Nowhere in the reference case does the Court unambiguously preclude a simple majority as being sufficient to commence negotiations, which is presumably what Schudlo means when he refers to “talks.” It was also previously mentioned that the Court explicitly said that they would leave the definition of a ‘clear majority’ up to the political actors to determine. Moreover, if the Court truly did explicitly reject a simple majority as being sufficient to commence negotiations, or had granted Parliament the ability to determine what constituted a ‘clear majority’ without the input of the provinces (viz. Quebec), Premier Bouchard would have immediately made this finding in his statement. It would also stand as a flagrant contradiction to the doctrine of the ‘duty to negotiate’ that the Court advocated for on the multiple principles it established. Yet Premier Bouchard was quite clear on what the Court meant on the matter of a ‘clear majority’ in the following fragment:

Concerning the majority, the Court judges, as do we, that it must be clear. But it describes this clarity using the word “qualitative,” rather than the word “quantitative.” I quote the Court, when it writes “we refer to a ‘clear’ majority as a qualitative evaluation.” Thus it does not call into question the quantity [ sic ] of votes required to declare a victory for the Yes side. The judges are familiar with the precedents in Canadian history, particularly that of Newfoundland, which entered Canada with a 52% majority. Any juridical or political statement to the effect that a result of 50% + 1 was not sufficient would call into question the validity of the Newfoundland vote.⁵⁰

In light this of evidence, it cannot be claimed that the Court ever suggested that a simple majority from a referendum would be insufficient to commence negotiations. The Clarity Act managed to justify itself on the advice of the Supreme Court in the Quebec Secession Reference when its provisions did not accurately correspond to the advice of the Court. While the Court did not preclude a simple majority as not being able to constitute a ‘clear majority’, it did not specify which “political actors” would make the determination on what constitutes a ‘clear majority’. This may be why the Clarity Act states the following:

Whereas, in light of the finding by the Supreme Court of Canada that it would be for elected representatives to determine what constitutes a clear question and what constitutes a clear majority in a referendum held in a province on secession, the House of Commons, as the only political institution elected to represent all Canadians, has an important role in identifying what constitutes a clear question and a clear majority sufficient for the Government of Canada to enter into negotiations in relation to the secession of a province from Canada.⁵¹

It must be emphasized that the Court never suggested in the Quebec Secession Reference that the federal House of Commons is in the best position to determine what constitutes a ‘clear majority’ to warrant the commencement of talks between Quebec and the rest of Canada, or any specific subset of political actors for that matter. The Court may have been careful in not setting the democratic terms of secession for Quebec beyond insisting that there be a principled duty to negotiate, yet their advice was used in ways they may not have expected or intended. The Chrétien Liberals had interpreted the advice provided in that reference case to legitimize the legislation of the Clarity Act that was denounced by the separatist Bouchard government in 2000. It also reinforces the potential of the courts’ advice to further inflame tensions among governments rather than to deescalate them or fully resolve those intergovernmental conflicts.

As with virtually any federation, maintaining harmony amongst its jurisdictions is a constant challenge, and Canada is no exception. Friction will always remain a common feature of intergovernmental affairs between the provinces and the federal government. The foregoing analysis has demonstrated that to have the judicial arm of Canada be called to provide opinions on distinctly political issues involving intergovernmental relations is a perilous exercise. Reference cases dealing with these matters carry a set of risks that entail a high potential for causing serious political fallout should they be mishandled. Those risks pertain to the flawed methodology the courts may adopt in order to provide the answers to the questions it is presented with. In the Patriation Reference, the Supreme Court of Canada used a precedent-based methodology, criticized for being inadequate by academics, and had inconsistently applied it between this case and the subsequently related Quebec Veto Reference. It is the result of that inconsistent application that aggravated the rift between Quebec and the rest of Canada, along with damaging the Supreme Court’s credibility among Quebeckers. Finally, the advice the Court delivers in reference cases for intergovernmental relations and conflict resolution may be subject to manipulation by government actors and have effects that the Court may not have expected or intended. Nowhere is this more evident than in the Clarity Act, a statute that the Chrétien government legislated in 2000 that justified itself using the advice delivered in the Quebec Secession Reference when that same advice did not accurately correspond to the aims and provisions in the statute. These opinions delivered by the courts may be generally well-reasoned and agreeable to observers, but as Adam Dodek writes, their opinions risk “opening Pandora’s Box.”⁵² As of April 2018, another reference case bearing many parallels to the past three reference cases previously examined in this essay is looming on the horizon. The government of British Columbia has launched a reference case to the province’s Court of Appeal to “test the constitutional limits of the province’s authority to restrict the flow of oil crossing its borders – a high-stakes play for control in the battle over the Trans Mountain pipeline expansion.”⁵³ The nascent reference case is a product of a most acrimonious dispute between British Columbia and Alberta, the federal government directly intervening in favour of the latter province. Whatever the outcome, it appears the Supreme Court of Canada will be dragged into another volatile intergovernmental conflict with its own set of disconcerting implications. ⁵⁴ The lid of Pandora’s Box is bound to shift with this case, let us hope that it ultimately remains closed if not sealed.

Bibliography

An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference. S.C. 2000, c. 26. [ “Clarity Act” ].

Dodek, Adam. “Courting Constitutional Danger: Constitutional Conventions and the Legacy of the Patriation Reference.” The Supreme Court Law Review, 2011. LexisNexis Canada.

Gaudreault-Desbiens, Jean-Francois. “The Quebec Secession Reference and the Judicial Arbitration of Conflicting Narratives about Law, Democracy and Identity.” Vermont Law Review 23 (1999). HeinOnline.

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Heard, Andrew. Canadian Constitutional Conventions: The Marriage of Law and Politics.

Toronto: Oxford University Press, 1991.

Hunter, Justine. “Long List of Intervenors Approved in B.C. Reference Case on Oil Pipelines.” The Globe and Mail, June 18, 2018. https://www.theglobeandmail.com/canada/british- columbia/article-long-list-of-intervenors-approved-in-bc-reference-case-on-oil/.

Québec. Secrétariat Aux Relations Canadiennes. Preliminary Statement by Lucien Bouchard, Prime Minister of Québec, the Day following the Opinion of the Supreme Court of Canada on the Federal Government’s Reference concerning Québec’s Accession to Sovereignty, Québec, August 21, 1998. By Lucien Bouchard. https://www.sqrc.gouv.qc.ca/documents/positions-historiques/positions-du- qc/part2/LucienBouchard1998_en.pdf.

Re: Objection by Quebec to a Resolution to Amend the Constitution. [1982] 2 SCR 793. [“Quebec V e t o Reference” ].

Re: Resolution to Amend the Constitution. [1981] 1 S.C.R 753. [“Patriation Reference” ]. Reference re Secession of Quebec. [1998] 2 SCR 217. [“Quebec Secession Reference” ].

Russell, Peter. “The Patriation and Quebec Veto References: The Supreme Court Wrestles with the Political Part of the Constitution.” The Supreme Court Law Review, 2011. LexisNexis Canada.

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Séguin, Rhéal. “Quebec Replies to Clarity Act.” The Globe and Mail, December 8, 2000. https://www.theglobeandmail.com/news/national/quebec-replies-to-clarity- act/article4169597/.

Sossin, Lorne. Boundaries of Judicial Review: The Law of Justiciability in Canada. Toronto: Carswell, 2012.

Supreme Court Act. R.S.C. 1985, c. S-26.

[...]

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¹ Lorne Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada. (Toronto: Carswell, 2012), 277.

² Supreme Court Act, R.S.C. 1985, c. S-26.

³ Sossin, at 278.

⁴ Radhakrishnan Persaud, “Resort to the Supreme Court Through the Reference Procedure: Use of the Judicial Advisory Mechanism in Canadian Political Law,” Journal of Parliamentary and Political Law, 2011, 267, WestlawNext Canada.

⁵ Re: Resolution to Amend the Constitution, [1981] 1 S.C.R 753, p. 796 [hereinafter “Patriation Reference”].

⁶ Idem, at 759.

⁷ Idem, at 910.

⁸ The definition of constitutional conventions is not entirely settled and it is well beyond the scope of this paper to delve into the debate on what convention is. For the sake of clarity, conventions are to be understood in this work as uncodified, non-binding rules that bear an influence on political behaviour in Canadian governance.

⁹ Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics (Toronto: Oxford University Press, 1991), 4-5.

¹⁰ Idem, at 6.

¹¹ Idem, at 13.

¹² Ibid.

¹³ Heard (1991), at 14.

¹⁴ Ibid.

¹⁵ Ibid.

¹⁶ Andrew Heard, “Constitutional Conventions: The Heart of the Living Constitution,” Journal of Parliamentary and Political Law, August 2012, 2, WestlawNext Canada.

¹⁷ Idem, at 4.

¹⁸ Ibid.

¹⁹ Ibid.

²⁰ Ibid.

²¹ Heard (2012), at 5.

²² Re: Objection by Quebec to a Resolution to Amend the Constitution, [1982] 2 SCR 793, p. 805 and 813, [hereinafter “Quebec Veto Reference”].

²³ Idem, at p. 814.

²⁴ Idem, at p. 815.

²⁵ Jean-Francois Gaudreault-Desbiens, “The Quebec Secession Reference and the Judicial Arbitration of Conflicting Narratives about Law, Democracy and Identity,” Vermont Law Review 23 (1999): 5, HeinOnline.

²⁶ Ibid.

²⁷ Patriation Reference, p. 900.

²⁸ Ibid.

²⁹ Ibid.

³⁰ Gaudreault-DesBiens, at 5.

³¹ Ibid.

³² Ibid.

³³ Peter H. Russell, The Judiciary in Canada: The Third Branch of Government (Toronto: McGraw-Hill Ryerson, 1987), 91.

³⁴ Persaud, at 267-268.

³⁵ John Schudlo, “Respectfully Submit: Deference to the Supreme Court in Canada,” Journal of Parliamentary and Political Law, 2017, 1, WestlawNext Canada.

³⁶ Ibid.

³⁷ Ibid.

³⁸ Ibid.

³⁹ Ibid.

⁴⁰ Reference re Secession of Quebec, [1982] 2 SCR 217, para. 153, [hereinafter “Quebec Secession Reference”].

⁴¹ Schudlo, at 1.

⁴² Persaud, at 267.

⁴³ Russell (1987), at 92.

⁴⁴ An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference, S.C. 2000, c. 26. [hereinafter “Clarity Act” ].

⁴⁵ Ibid.

⁴⁶ Québec. Secrétariat Aux Relations Canadiennes, Preliminary Statement by Lucien Bouchard, Prime Minister of Québec, the Day following the Opinion of the Supreme Court of Canada on the Federal Government’s Reference concerning Québec’s Accession to Sovereignty, Québec, August 21, 1998, by Lucien Bouchard, 190.

⁴⁷ Rhéal Séguin, “Quebec Replies to Clarity Act.” The Globe and Mail, December 8, 2000.

⁴⁸ Ibid.

⁴⁹ Schudlo, see note 35.

⁵⁰ Bouchard, at 193.

⁵¹ Clarity Act.

⁵² Adam Dodek, “Courting Constitutional Danger: Constitutional Conventions and the Legacy of the Patriation

Reference,” The Supreme Court Law Review, 2011, 4, LexisNexis Canada.

⁵³ Justine Hunter, “Long List of Intervenors Approved in B.C. Reference Case on Oil Pipelines,” The Globe and Mail, June 18, 2018.

⁵⁴ Ibid.