Advisory Role of the Supreme Court of Canada - Essay Example

Advisory role of the Supreme Court of Canada - Patriation reference and Quebec Veto Reference The use of the advisory mechanism of the Supreme Court of Canada, as provided under Section 53 of the Supreme Court Act, has been a controversial subject over the history. The major controversy arises from the fact that, while section 53 provides for the federal or the provincial government to submit a reference question to the Supreme Court, the Constitution Act, 1867 has on the other hand provided that all questions of national legal importance should be determined by the court of appeal1. In this respect, the question of the appropriateness of the use of reference question under Section 53 of the Supreme Court Act was addressed under the ‘Reference re Secession of Quebec’, where the Supreme Court held the legality of the reference questions referred to the Supreme Court for an advisory opinion2. Thus, in consideration of both the Patriation reference and Quebec Veto Reference, this discussion seeks to argue for the application of the advisory mechanism of the Supreme Court of Canada, in the determination of important legal questions of national importance. While arguing for the application of the advisory mechanism of the Supreme Court, the discussion will first seek to demystify the assumption that there exists a correct and certain answer to any reference question that is raised through this mechanism. In doing so, the discussion will therefore find the application of the advisory mechanism of the Supreme Court of Canada, as provided under Section 53 as essential. Discussion The provisions of Section 53 of the Supreme Court Act allows for the government to seek an advisory opinion regarding questions deemed important for the nation, and which may have an important legal bearing on the country3. The ruling given by the Supreme Court during the answer to the reference question also takes the form of a judicial ruling. However, the most important aspect of the application of the mechanism of the advisory opinion as a means of determining a legal question is that, the decision offered is simply in form of an advice, as opposed to a legally binding decision of the court4. In this respect, the parties interested in the reference question can therefore take further legal courses of action, to determine the fate of the legal issue, since the parties are at liberty to agree or to disagree with the advisory opinion granted in the ruling5. Thus, considering that no party is bound by the decision issued during an advisory opinion ruling, it is therefore important that the advisory mechanism of the Supreme Court of Canada is applied towards determining important legal issues that can affect the country in one way or the other. This is because, the advice will simply serve to create deeper insights into a legal issue from the legal perspective, without causing any harm to either of the parties interested in the reference question, considering that they are not barred from taking the necessary legal action, where they find the advisory opinion does not suit their interests6. For example, the Quebec Veto Reference is one of the major legal questions that the Supreme Court of Canada had to deal with, in the wake of a heightened political question between the Canadian national government and the Quebec province, which was seeking secession, to form a sovereign and independent sate from Canada. Therefore, the Supreme Court had to take the responsibility of demystifying and clarifying important legal issues, which would have resulted to a much strained relations between Canada and Quebec, had the Supreme Court not intervened through advising the parties accordingly7. Thus, the Quebec Veto Reference serves as an important reference that indicates the importance of the application of the advisory mechanism by the Supreme Court of Canada. This is because; the Supreme Court clarified all the legal questions that the parties to the reference question had raised, in a manner that left both parties satisfied with the ruling8. Thus, the major question that emanates from this example is; what would have happened, should Quebec have opted to take a course of action that did not entail seeking the advisory opinion of the Supreme Court?9. The answer to this question obviously points to the possibility of a huge negative political ramification, which would have resulted to a serious political conflict between Quebec and Canada. This is because, if Quebec province had opted to implement the secession from Canada unilaterally, the formation of the new Quebec State would have resulted to a conflict that could still be felt to present day10. In this sense, the use of the advisory mechanism of the Supreme Court of Canada, as provided under Section 53 of the Supreme Court Act, was instrumental in averting a looming political crisis, and therefore is essential. Further, the use of the advisory mechanism of the Supreme Court of Canada, as provided under Section 53 of the Supreme Court Act is a fundamental basis of pinning purely political questions into the legal framework. Thus, it is an essential process of securing an acceptable legal basis for viable political community establishment11. This is because, without the application of the advisory mechanism, the political process would take precedence, and the consequence would be the establishment of a community that is not keen on applying the law. Therefore, the application of the advisory mechanism is one of the important aspects that enable the federal and the provincial government in Canada to gain judicial power in the implementation of the subsequent decisions12. This mechanism a far better legal option than the constitutional legal procedure provided under the Constitution Act, 1867, which provides for such important legal questions to be raised with the court of appeal. The major benefit associated with this mechanism is that; in the process of seeking for an advisory opinion regarding a legal issue, there are no direct litigants in the case, but rather purely interested parties. This definition of the participants in the process is essential, because it effectively removes the winner and loser consequence of the legal court process, which renders one party as the overall aggrieved party. However, through the application of the advisory mechanism to determine important political and legal questions, the end result is a mere advice on the parties, which does not entail the creation of a disparity between who won and who lost in the process13. This is necessary, considering that the judges, even though bound by the legal integrity requirement to render impartial decisions in all legal matters, they are natural human beings, who also have different political interests, or who are influenced by the political interests14. Therefore, the application of the legal court process provided under the Constitution Act, 1867 would have far-reaching negative implications on questions that are of a higher political magnitude than legal importance, since the presentation of such questions to the court of appeal would result in rendering a decision that would be binding on the parties, yet influenced by the political interests of the judges15. However, this is different when the advisory mechanism is applied, since despite the fact that the judges may be influenced by the political influences and interest in making the decisions, their decisions would simply serve s an advisory opinion as opposed to being a binding court order, thus offering further avenues for parties involved to seek reprieve16. Additionally the use of the advisory mechanism of the Supreme Court of Canada, as provided under Section 53 of the Supreme Court Act is a major step towards avoiding the federal and the intergovernmental paralysis17. The application of the advisory mechanism has been the major milestone towards ensuring that a long lasting solution to the political problems facing the federal and the intergovernmental relationship between the government and the provincial government is sustained, in a manner that does not cause major breakups. This is because, through the application of the advisory mechanism, both the federal government and the provincial governments have been forced to return to a round table and negotiate political matters of great national important18. The Patriation reference serves as one of the examples of an application of advisory mechanism by the Supreme Court of Canada, which enabled the federal and the provincial governments to return to the negotiation mechanism which they had departed earlier, in favor of a legal process, which did not prove to create any solution by itself. This is because, the advisory opinion that was issued by the Supreme Court during the Patriation reference was even confusing for the parties, than it was before parties sought such an opinion 19. First, the decisions affirmed the need for Canada to observe the common laws of patriation of the constitution, yet they are not written laws. Secondly, the advisory opinion issued by the Supreme Court in relation to the Patriation reference was so much divisive, such that the federal government and the provincial governments were left without any other option, other than to apply negotiation as the best means through which they could achieve a resolution. However, despite the fact that the Supreme Court decision regarding the Patriation reference was a very divisive issue, it can generally be termed as having been a positive decision, which enabled the Canadian federal government to repatriate its constitution in a manner that was generally acceptable to the federal government and its nine provinces20. In this respect, it is the advisory mechanism that made it possible to dispel the fears that were previously held by the provincial governments, especially the Quebec provincial government, which held that the unilateral repatriation of the Canadian constitution by the federal government would have given it an undue advantage over the provincial government21. Thus through the advisory mechanism, a federal-provincial political accommodation was forged, which then ended the heightened political tensions that had threatened the sovereignty of Canada as a nation. The Patriation reference was important as a mechanism of avoiding the damage of the Canadian federal-provincial intergovernmental relationship. First, the Patriation Reference ruling by the Supreme Court of Canada gave a green light to the Canadian federal government, to proceed with a unilateral repatriation of the country’ constitution22. This way, the advisory mechanism helped to ease the tension that was breeding between the federal government and the nine provinces, by clarifying on the mandate of the different entities regarding the issue of constitutional making responsibility. However, the same advisory opinion warned the federal government that; despite the fact that a unilateral repatriation of the Canadian constitution could be applied, the Supreme Court advisory also warned that taking such an action unilaterally would bring some form of political illegitimacy. This is because; the provincial governments would feel that the constitutional changes that would result from such a constitutional repatriation would not rightly affect them23. Thus, despite the fact that the federal government could take the unilateral action, the future implementation of the repatriated constitution would breed more political difficulties, if such changes would affect even the provinces. Secondly, the Patriation reference ruling by the Supreme Court of Canada provided that the provincial governments, though not liable for the repatriation of the Canadian constitution, were supposed to be consulted24. The ruling provided that the participation of the nine provincial governments was fundamental in the implementation of any constitutional changes, including the patriation of the Canadian constitution. However, the same ruling also warned the provincial governments that their participation in the process was subject to consultation with the federal government, failure to which, the federal government could go ahead and implement the patriation unilaterally25. This way, the provincial governments would be left without future legitimate claims to the process, and the courts could not intervene to enforce the provinces’ right to participation, where they had not drafted an agreement with the federal government regarding the same. The consequence of these two provisions of the Supreme Court of Canada ruling on the Patriation Reference was that; both the federal government and the provincial governments were left without any other option but to collaborate in establishing an acceptable formula for patriation of the Canadian constitution26. This way, the possible paralysis of the federal-provincial government relationship was averted, and instead a legal ground for the collaboration of the two governments reinforced. Therefore, the significance of the use of the advisory mechanism of the Supreme Court of Canada, as provided under Section 53 of the Supreme Court Act, in relation to the creation of a harmonious working relationship between the federal and the provincial governments, cannot be overemphasized. There is one major aspect that makes the use of the advisory mechanism of the Supreme Court of Canada, as provided under Section 53 of the Supreme Court Act, an essential mechanism in resolving the major political, legal and constitutional issues in Canada. The fact that most of the major reference questions, which include both the Patriation reference and Quebec Veto Reference are issues pitching the Anglophone and the Francophone relationship in Canada, implies that the issues do not have a better way of resolution, other than through the advisory mechanism27. This is because, such issues do not only entail political and legal issues, but also social-cultural dimensions that have a great bearing on the Anglophone and Francophone relationship in Canada. Thus such issues cannot be effectively addressed through a legal court process that would end-up creating a winner and loser scenario out of a decision, thus hurting this relationship even further28. Thus, the advisory mechanism is the most applicable tool for responding to such questions, due to its technical balancing outcome that lacks actual legal binding consequences, although such advisories have often been interpreted as legally binding decisions. Bibliography 1. Rubin, Gerald. ‘The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law’(6 M.L.J, 1989) 168-190. 2. Russell, Peter, et al. ‘The court and the constitution: comments on the Supreme Court reference on constitutional amendment’ (Canada: Queens University, 1982) 1-7. 3. Russell, Peter. ‘The Patriation and Quebec Veto References: The Supreme Court Wrestles with the Political Part of the Constitution’ (54 S.C.L.R., 2011) 70-76. 4. Dodek, Adam M. ‘Courting Constitutional Danger: Constitutional Conventions and the Legacy of the Patriation Reference’ (54 S.C.L.R., 2011) 118-142. 5. Mathen, Carissima. ‘The question calls for an answer, and I propose to answer it”: The Patriation Reference as Constitutional Method (54 S.C.L.R., 2011) 143-166. 6. Hogg, Peter W. Constitutional Law of Canada (Ontario: Thomson Canada Limited, 2003) 55. 7. Parsaud, Rad. ‘The Role of Judicial Advisory Opinions in Canadian Constitutionalism and Federalism: The Senate, Patriation & Quebec Veto Reference Cases Considered’ (Queen’s University, 1998). 1-47. 8. Parsaud, Rad. ‘Resort to Supreme Court through the reference procedure: Use of the Judicial Advisory mechanism in Canadain Law’ (5 J.P.P.L, 1998). 260-286. 9. Gaudreault-DesBiens, Jean-François. ‘The “Principle of Federalism” and the Legacy of the Patriation and Quebec Veto References’ (54 S.C.L.R., 2011) 79-115. Read More