Department of Justice

GOVERNMENT OF CANADA'S FILING OF WRITTEN ARGUMENTS IN REFERENCE TO THE SUPREME COURT OF CANADA

GENERAL

A reference is a procedure by which the Government of Canada refers legal or factual questions it considers important to the Supreme Court of Canada for the Court to hear and to consider. The Court answers the questions and gives reasons for its opinion.

There have been 75 federal references since 1892. The most recent of these include: 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).

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

THE REFERENCE ON WHETHER THE GOVERNMENT OF QUEBEC HAS A RIGHT TO EFFECT THE UNILATERAL SECESSION OF QUEBEC FROM CANADA

The Issues

The Government of Canada believes that there is no legal basis for the Government of Quebec's continued assertion that it can unilaterally declare the independence of Quebec. Rather than leave the issue unresolved and risk future political instability and legal uncertainty, the federal government has asked the Supreme Court of Canada to look at the question.

The federal government is asking the Court whether there is anything in Canada's Constitution or in international law that would give the National Assembly, legislature or government of Quebec the right to declare Quebec's independence unilaterally.

In the event of a conflict between Canada's Constitution and international law on these issues, the federal government is also asking that the Court give its opinion as to which would take precedence.

The Process

Progress To-date

The Attorney General of Canada has carriage of the Reference. This means that he has the responsibility of taking the first steps in putting the Reference formally before the Court and asking the Court how to proceed. Yves Fortier and Pierre Bienvenu, Montreal lawyers, as well as Jean-Marc Aubry and Warren Newman of the Department of Justice Canada, are presenting the federal government's views to the Court.

Filing of Questions : On September 30, 1996, the Attorney General of Canada filed the questions with the Supreme Court.

Oral Hearing: On November 8, 1996, there was an oral hearing before the Supreme Court of Canada. The federal government asked The Right Honourable Chief Justice, Antonio Lamer, to decide on a number of procedural matters, including setting of various dates for the Reference process.

Given the exceptional nature of the Reference, the Chief Justice ruled that it would be premature to set the date for the hearing until all those who wanted to participate in the Reference were known. Under Supreme Court rules potential participants, or interveners, had until November 29 to file applications to intervene with the Court.

Filing of documents by the Attorney General of Canada: In compliance with the rules of the Court, the federal government filed documents germane to the Reference on December 27, 1996, with the Court. They include documents that provide the Court with relevant background information.

Interveners: At a second oral hearing on January 17, 1997, the Court granted intervener status to all but one of the applicants.

The interveners are: the Attorney General of Manitoba, the Attorney General of Saskatchewan, the Ministers of Justice of the Yukon, and the Northwest Territories, the Grand Council of the Cree, Roopnarine Singh et al, Guy Bertrand, Kitigan Zibi Anishinabeg, Mi'gmaq Nation, the Minority Advocacy Rights Council, Yves Michaud, the Ad Hoc Committee of Canadian Women on the Constitution, and Vincent Pouliot.

On February 26, 1997, the Court also granted leave to intervene to Makivik Corporation, representing the Quebec Inuit and to the Chiefs of Ontario. The federal government is entitled to submit its views on whether the Court should turn down applications to intervene. However, it did not do so because the federal government believes that it is important that many points of view be presented to the Court on this important issue. Of course, this does not necessarily mean that the government agrees with the position of all the interveners.

The federal government requested the Court's permission to file a longer factum or argument than the rules allow (Forty pages is the norm.) The federal government asked, and received the Court's permission, to file a factum of up to 80 pages. The Court also consented to the federal government's request for an extension in filing the factum with the Court. The Court set a filing date of February 28, 1997.

Next Steps

Filing of the Attorney General of Canada's Factum: The Attorney General's factum (the written statement of facts and legal argument) on the Reference was filed with the Court on February 28, 1997. A media backgrounder outlining the federal government's position is available.

Filing of Factums by Interveners: Interveners will provide their factums to the Court after the federal government has filed its factum. This gives interveners an opportunity to present their views on the questions and on the government's position.

Amicus Curiae: «A friend of the Court» may be appointed by the Court to present a viewpoint that is not otherwise represented. Any lawyer appointed by the Court to present this viewpoint would file a factum.

The Reference Hearing: The hearing of the Reference will take place only after all the procedural matters have been handled. The date is entirely at the discretion of the Court. The hearing itself may take less than a week. The Court will likely reserve its decision and make its opinion known after appropriate consideration.

The Attorney General of Canada will not be in a position to comment on the substantive legal issues raised by the Reference because the matter will be before the Court.

Departmental spokespersons:   

           Mary Dawson (613) 957-4898; 
           Warren Newman (613) 952-8091;
           Jean-Marc Aubry (613) 957-4663.
                              

Department of Justice Canada
Communications and Executive Services Branch
February 28, 1997