Department of Justice

BACKGROUNDER ON REFERENCES TO THE SUPREME COURT OF CANADA

The Government of Canada has announced that it will institute a reference to the Supreme Court of Canada on issues relating to the secession of Quebec from Canada. This backgrounder answers some of the commonly-asked questions about the scope of the reference power and the nature of the process.

What is a reference?

A reference is a procedure by which the federal government refers legal or factual questions it considers important to the Supreme Court of Canada for the Court to hear and to consider. Section 53 of the Supreme Court Act gives the power to the Governor in Council (that is, the Government of Canada) to refer questions to the Court, notably concerning:

- the interpretation of the Constitution Acts;

-the constitutionality or interpretation of any federal or provincial legislation;

-the powers of the Parliament of Canada, or of the legislatures of the provinces, or of the federal or provincial governments.

Where a reference is made to the Court, the Court hears and considers the questions referred, answers the questions, and gives its opinion and its reasons for the answers.

Is a reference unusual?

It is a special procedure that is used sparingly. There have been 74 references by the federal government to the Supreme Court since the first one in 1892. The most recent have been the Anti-Inflation Act Reference (1976) the Senate Reference (1980), the Newfoundland Continental Shelf Reference (1984), the Manitoba Language Rights Reference (1984), the Ng Extradition Reference (1991), the David Milgaard Conviction Reference (1991), and the Quebec Sales Tax Reference (1994).

Can anyone else make a reference?

The provinces have each enacted legislation enabling the provincial governments to refer questions to their respective provincial Courts of Appeal, in much the same manner as the federal government refers matters to the Supreme Court of Canada. (An opinion rendered by a provincial Court of Appeal can be appealed to the Supreme Court of Canada.)

Does the Court hear witnesses?

The Court does not, as a general rule, hear witnesses and take oral testimony, although it has done so in certain exceptional circumstances (as in the Milgaard Reference). A reference, like an appeal, normally proceeds on the basis of written and oral argument by counsel. Along with caselaw and the writings of legal scholars, factual written material such as parliamentary debates, reports, historical and socio-economic data are often filed in support of the argument.

Does the Supreme Court render a judgment? Is it binding?

The Court issues an advisory opinion in the form of a judgment. As a legal pronouncement from the highest court in the land, it has always been treated as binding.

How soon may a reference be heard?

This is, of course, a matter for the Court's discretion. Depending on the Court's scheduling and availability, the reference in this matter might be heard in mid-winter.

How long will it take before the Court renders its opinion?

Again, this is entirely within the discretion of the Court.

Do Quebec and the provinces have a right to intervene in the reference?

We fully expect that as a matter of practice the Supreme Court would require notice to be given to the Attorney General of Quebec and probably all provincial Attorneys General. Under the Rules of Practice of the Supreme Court, where a question on the constitutionality of a law of the legislature of a province is raised in a case on appeal, the constitutional question is stated by the Court and is served on the Attorneys General of all the provinces, who may then intervene in the case simply by filing a notice of intervention. In the case of a reference, subsection 53(5) of the Supreme Court Act provides that where the question relates to the constitutional validity of any Act passed by a provincial legislature, or in case, for any reason, the government of any province has any special interest in any such question, the Attorney General of the province shall be notified of the hearing in order that the Attorney General may be heard if he thinks fit. Furthermore, under subsection 53(6) of the Supreme Court Act, the Court has the express power to direct that any person or class of persons be notified of the hearing of a reference, and those persons are entitled to be heard.

Does anyone other than provincial governments have a right to intervene in the reference? What rights do interveners have?

As indicated above, the Court may direct that a person or class of persons be notified of the reference, and those persons are entitled to be heard. In addition, the Supreme Court Rules provide that any person interested in an appeal or a reference may, with leave of a judge of the Court, intervene therein upon such terms and conditions and with such rights and privileges as the judge may determine. An intervener has the right to file a written argument (a factum). Interveners do not have a right to make oral argument or to file a factum exceeding twenty pages unless the judge allowing the intervention so orders. (These limitations do not apply to Attorneys General who file a notice of intervention under the other provisions of the Rules.)

What happens if the Quebec government does not participate and make arguments before the Court?

We would hope that Quebec will choose to participate. In any event, under subsection 53(7) of the Supreme Court Act the Court could appoint a lawyer to argue the case with respect to any interest that is affected but is not represented by counsel. (This is sometimes referred to as an amicus curiae or "friend of the court" provision.) Again, this is a matter within the Court's discretion.

How many judges from Quebec sit on the Supreme Court?

Three of the nine judges are from Quebec, as required by the Supreme Court Act.

Does the reference to the Supreme Court suspend the proceedings in the cases related to Quebec secession that are currently before the Superior Court of Quebec, i.e., the Bertrand and Singh cases?

Not automatically, but it would not be unusual for the Superior Court to adjourn the hearing of those cases sine die until the Supreme Court renders its opinion.

September 26, 1996