Over the past several years, there have been a number of very significant reference decisions that have and will affect Canada’s legal landscape. A reference case is different than a regular civil or criminal case that involves litigating parties. In a reference, the federal or provincial government submits questions to the courts asking for an advisory opinion on major legal issue(s). Often, the question involves the constitutionality of existing or proposed legislation. The federal government submits questions to the Supreme Court of Canada (SCC) under the Supreme Court Act. Over the past 15 years, there have been a number of very significant federal and provincial reference questions. For example, in 1998, the SCC was asked by the federal government to opine on whether it was legal, under either Canadian or international law, for Québec to unilaterally secede from Canada Interested parties can apply to the Court to make submissions as interveners. While the opinion given by the Supreme Court of Canada is not considered to be of the same precedential value as the decisions involving regular litigants, governments do not usually ignore the Court’s opinion.
Provincial governments are able to submit questions to the provincial Superior Court or Court of Appeal. The process is similar to that of a federal government reference question, except that the government has the right to appeal the provincial court’s decision to the SCC.
Over the past 15 years, there have been a number of very significant federal and provincial reference questions. For example, in 1998, the SCC was asked by the federal government to opine on whether it was legal, under either Canadian or international law, for Québec to unilaterally secede from Canada (Reference re Secession of Québec,  2 SCR 217). Fifteen governments and interest groups intervened. Québec refused to take part, so the court appointed an amicus curiae (friend of the court) to argue for the sovereigntist side of the case. The Supreme Court of Canada (SCC) wrote an extensive judgment, addressing federalism, the rule of law, democracy, constitutionalism and the protection of minorities as interrelated and equally important principles as to whether Québec could unilaterally secede (separate from Canada). While the SCC concluded that unilateral secession was not possible, it also held that should a referendum decide in favour of independence, the rest of Canada would have to negotiate the terms under which Québec would gain independence. The SCC also opined that the international law on secession did not apply to Québec’s situation because international law does not address the situation where component parts of sovereign states want to legally secede unilaterally from the “parent” state. Both the Canadian government and the Québec government were pleased with the SCC’s decision. [1 and 2] Noting that the meaning of marriage is not fixed to what it meant in 1867, the SCC held that it must evolve in Canada’s pluralistic society. The first impact of this decision occurred when the federal government drafted the Clarity Act, SC 2000 c 26, which gave the House of Commons the power to decide whether the proposed referendum question was clear, and whether a clear majority had expressed itself following the referendum vote, among other requirements. Thus, the Québec Reference directly influenced the federal government to ensure that the referendum questions were clearly expressed before such an important negotiation to separate would take place.
In 2004, the SCC addressed the issue of same-sex marriage (Reference re Same-Sex Marriage,  3 SCR 698). Before the reference case was heard, several provincial appeal courts had held that same-sex marriage was constitutionally valid. The federal government submitted four questions regarding the validity of proposed same-sex marriage legislation:
1. Is the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes within the exclusive legislative authority of the Parliament of Canada? If not, in what particular or particulars, and to what extent?
2. If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry to persons of the same sex, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars, and to what extent?
3. Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?
4. Is the opposite‑sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in section 5 of the Federal Law–Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?
The SCC held that the federal government had absolute jurisdiction over capacity to marry under the Constitution Act, 1867, section 91(26) . Noting that the meaning of marriage is not fixed to what it meant in 1867, the SCC held that it must evolve in Canada’s pluralistic society. The Court clearly said that the proposed legislation addressed only civil marriage as a legal institution, and had no effect on religious marriage. The overall effect of finding most sections of the proposed Civil Marriage Act SC 2005, c 33 to be constitutional meant that there would likely be no court challenge after the Act was passed. Further, Canada became the fourth country (currently there are 16 countries) to legalize same-sex marriage.
In 2010, Québec initiated a reference to its Court of Appeal regarding the constitutionality of the Assisted Human Reproduction Act, SC 2004, c 2. The federal and Québec governments appealed the Québec Court of Appeal’s decision to the SCC (Reference re Assisted Human Reproduction Act, 2010 SCC 61). The result of the case was that several significant provisions were repealed. The Assisted Human Reproduction Agency was dissolved, and section 12 of the Act was amended to remove the requirement for a licence to reimburse expenditures. At issue was whether the federal legislation was a valid exercise of the criminal law power under Constitution Act, 1867, s 91(27), or whether some sections were actually attempts to regulate medical practice and research, and thus outside of the legislative jurisdiction of the federal government.
The result of the case was that several significant provisions were repealed. The Assisted Human Reproduction Agency was dissolved, and section 12 of the Act was amended to remove the requirement for a licence to reimburse expenditures. All responsibilities under the amended Act were assigned to the Minister of Health. The decision allows provincial and territorial governments to re-examine their laws and regulations that govern fertility issues. The federal government continues to determine what expenses are allowed to be paid for surrogacy, organ and sperm donation.
Another provincial reference was made in 2011 to the British Columbia Supreme Court on the issue of polygamy. This was the Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588. Looking at the list of interveners (11 of them) and the length of the judgment itself, it seems that the Court dealt with the issues in a comprehensive manner. The BCSC’s judgment is over 1300 paragraphs long. The reference was before the trial court, and there were many witnesses and a great deal of evidence for Chief Justice Bauman to consider. Because both the federal Attorney General and the British Columbia Attorney General argued that the polygamy prohibition was constitutional, the Court appointed an amicus curiae to argue that the polygamy provision (Criminal Code section 293) was unconstitutional.
According to section 293 of the Criminal Code of Canada, it is illegal for people to practice polygamy, which is a type of matrimonial or conjugal union involving multiple spouses. Under s 293, not only is any form of polygamy illegal, but any type of polygamous union that purports to result from a rite of polygamy (e.g., a “celestial marriage ceremony”) is illegal. However, there is a community of polygamists in Bountiful, British Columbia, which, to date, the authorities in British Columbia have refrained from prosecuting. The apparent rationale for this non-prosecution has been a belief that s 293 would not withstand a challenge under the freedom of religion provision, section 2(a), of the Canadian Charter of Rights and Freedoms.
After hearing all of the evidence, Chief Justice Bauman concluded that there was compelling evidence of harm in polygamy. He also found that polygamy is harmful to society as it engenders higher rates of poverty and institutionalizes gender inequality.
Chief Justice Bauman held that s 293 offends Charter s 2(a) freedom of religion but is saved by Charter s. 1, as it is demonstrably justified in a free and democratic society. Chief Justice Bauman also concluded that s 293 violates the Charter s 7 liberty interests of children between 12 and 17 who are married into polygamy, and that Charter s. 1 does not save this violation. He ordered that s 293 be read down not to apply to prosecution of these children. Chief Justice Bauman concluded that Criminal Code s 293 does not offend Charter s 2(b) freedom of expression, nor s 2(d) freedom of association. Further, Charter s 15 is not offended as there is no religious or marital status discrimination.
To date in 2014, there have been two reference cases, which have had quite a bit of public attention. In Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, the SCC was asked to address the naming of Federal Court of Appeal Judge Marc Nadon to the Supreme Court of Canada. The Constitution Act, 1982 requires changes to the Supreme Court and its composition to be subject to the constitutional amending procedures—requiring the unanimous consent of Parliament and the provincial legislatures. Eligibility requirements for appointment to the SCC include that three judges are to be appointed from among judges of the Québec Court of Appeal or the Superior Court of Québec, or from current advocates with at least 10 years standing at the Barreau du Québec. Honourable Marc Nadon was formerly a member of the Québec Bar and was at the time of nomination a supernumerary judge from the Federal Court of Appeal.
First, the SCC held that the Supreme Court Act, RSC 1985, c S-26, s 6 could not be read so as to allow the appointment of someone who was at any time an advocate in the Quebec Bar for 10 years. Next, the SCC held that Parliament could not enact legislation to make such a person eligible for one of the three Québec seats. The Constitution Act, 1982 requires changes to the Supreme Court and its composition to be subject to the constitutional amending procedures—requiring the unanimous consent of Parliament and the provincial legislatures.
Most recently, in the Reference Re Senate Reform 2014 SCC 32, the SCC was asked to deal with six constitutional questions. …abolition of the Senate requires the unanimous consent of the Senate, the House of Commons, and the legislative assemblies of all Canadian provinces. The SCC held that the Parliament of Canada did not have the authority to:
- make amendments to section 29 of the Constitution Act, 1867, to provide for fixed terms for Senators, renewable terms for Senators, term limits or retrospective term limits;
- enact legislation that provides a means of consulting the population of each province and territory as to its preferences for potential nominees for appointment to the Senate;
- establish a framework setting out a basis for provincial and territorial legislatures to enact legislation to consult their population as to their preferences for potential nominees for appointment to the Senate; or
- make an amendment to the Constitution to abolish the Senate by using the general amending procedure set out in section 38 of the Constitution Act, 1982.
The SCC held also that Parliament does have the authority under the Constitution Act, 1982, section 44 to repeal section 23(4) of the Constitution Act, 1867, regarding property qualifications for Senators (seven provinces and 50 percent of the population). On the other hand, a full repeal of section 23(3) would require a resolution of the legislative assembly of Québec. Finally, the abolition of the Senate requires the unanimous consent of the Senate, the House of Commons, and the legislative assemblies of all Canadian provinces. Thus, while at least some Canadians want Senate reform, the SCC did not approve the unilateral approach to reform adopted by the current federal government.
These are but a few of the reference decisions that will have a significant impact on Canada’s legal landscape. The advisory opinions that are issued can provide guidance to the federal and provincial governments as to important constitutional questions of the day.
1. Lucien Bouchard’s position as published by Le Secrétariat aux affaires intergouvernementales canadiennes
2. Lois Harder, ed. The Chrétien Legacy: Politics and Public Policy in Canada (McGill – Queen’s Press 2006) p. 47.