Separation of powers Canada

Introduction: 

  The Succession Reference case of [1998] represented a unanimous judgement of the Supreme Court of Canada, in which they affirmed their advisory capacity. While this was not the first time the Court answered a question on reference, it was the first time they clearly defined their legal ability to do so. This paper will look at the Quebec Succession Reference opinions to the issue of reference that was raised by amicus for the province of Quebec.  Secondly, this paper will examine where the Quebec Succession reference case fits historically within the Courts evolving capacity as advisor to Parliament.  It was put to the Court that section 53 does not give the Supreme Court of Canada the right to answer a question(s) of reference (Parliament appointed amicus because Quebec refused to participate) posed to it.  This paper will provide a brief overview of the constitutionality of s. 53, the Courts power of reference in the scope of Parliamentary power in relation to how it was expressed in the Quebec Succession Reference.  A broader issue will be examined as to whether most questions posed to the Court are truly legal in nature and thus within the proper power of the judiciary to answer.  Ultimately it will become clear that most reference questions by their nature provide validity to actions taken by Parliament. This blur’s what are traditionally thought of as clear delineated lines between the roles of the three branches of government. 

Amicus for Quebec posed directly in their first question to the Court the power that they had to answer any question on reference.  Interesting enough, the Court clarified their ability or affirmed themselves the ability to answer questions of reference by the Constitution Act of 1867. According to the Court in the Quebec Succession Reference  

“Section 101 of the Constitution Act, 1867 gives Parliament the authority to grant this           Court the reference jurisdiction provided for in s. 53 of the Supreme Court Act. The               words "general court of appeal" in s. 101 denote the status of the Court within the                    national court structure and should not be taken as a restrictive definition of the                     Court's functions”. “ Further, the Court points out that “[t]he references questions are            within the scope of s. 53 of the Supreme Court Act.”[1]  

There is nothing in the constitution that says that the Court cannot formulate opinions in an advisory capacity; that would exclude the Court’s the authority to act in an advisory capacity. This means that by the Supreme Courts very right to exist, that they can provide advisory opinions, as there is nothing in Canadian Constitutional law that stops them from doing so.  This was the clearest statement made by the Court on their capacity to entertain reference questions since the enactment of the Supreme Court Act.  

In direct contrast to this concept of an advisory role is the Court’s traditional conception as having the law as its primary concern.  In the past, as it was expressed in the Quebec Succession Reference, the reference procedure can be better described as being used to ask the Court questions concerning legal issues that are political in nature.  Under this process what happens, leading to the difficulty in identifying the Court as a purely legal entity, is that different branches of government intertwine for that moment of reference. According to Kate Puddister,

“Through section 53 of the Supreme Court Act (RSC 1985, c S-26) or various provisions created by provincial legislatures, the executive branch (more specifically, the Governor in-Council or the Lieutenant Governor-in-Council) can pose questions directly in front of the Supreme Court (or provincial courts of appeal). The reference provides governments the ability to completely sidestep the normal litigation routes, resulting in a privileged access to the courts for the executive that is denied to citizens, interest groups, legislatures, or opposing political parties”[2]. 

Parliament in this manner has direct access to the Supreme Court of Canada. Simply put, the Court is being used by Parliament to aid them by providing them with legal advice.  As it will become evident later on, it’s here that the opinion becomes politicized by the Court, in placing an official stamp on the opinion.  The Court must answer even if in the rare instance if they refuse to answer they must provide a reason for declining.  It is here in these reasons of their opinion where they officially enter into the political arena. 

In this sense the legal advice becomes a political tool for Parliament.  When questions are best framed by those in need of a certain type of answer; Parliament can better draft legislation or act out their policies in accordance within the opinion of the Court.   One argument is that the Court in this capacity is providing not only a legal opinion to Parliament but an avenue by which they might better achieve their goals. According to Kate Puddister,

“The reference question procedure, allows the executive (of both the federal and provincial governments) to obtain an advisory judicial opinion from a Court of Appeal or the Supreme Court of Canada on the constitutionality of government legislation, either proposed or enacted, in the absence of a live legal dispute”[3].

The answer the Court provides is often then better described as a hypothetical answer. According to the Court in Quebec Succession Reference, “Section 53 is therefore constitutionally valid only if (1) a ‘general court of appeal’ may properly exercise an original jurisdiction; and (2) a ‘general court of appeal’ may properly undertake other legal functions, such as the rendering of advisory opinions”[4].  Unlike the Courts traditional role, requiring it to render a decision that would carry with it some penalty as part of an outcome in court, ‘an opinion seems more subtle’. The questions posed to the Court do not normally or must originate from any legal action arising from disputing parties.  In these two ways the Courts opinion is non-judgmental lacking a certain aspect of force that the judiciary is often seen as possessing.  An opinion suggests placing the decisive action or result of the opinion back in the hands of those that asked the question to act upon.  In practice, that does not mean that there are not ramifications of any Court opinion rendered in a reference. The Court has obviously entered the political arena regardless of how the role of advisory is defined or possibly despite what types of questions are posed.   

An advisory opinion of the Court is different for several reasons from what is thought of as the traditional role of Court’s rendering a judgment. According to Gerald Rubin an advisory opinion is “[a] formal opinion by judge or judges or a court of law or a law officer upon a question of law submitted by a legislative body or a governmental official, but not actually presented in a concrete case at law”[5].  If there is not legal foundation then there is no purely legal issue.  This removes the Court into the abstract as was the case in the Quebec Succession Reference because there was only a threat made and Quebec did not carry through with it.  While judicial decisions normally have their footing based on some legal fact that is present before them, questions of reference can deal with hypothetical situations. This renders the Court a lacking of material facts to potentially work with. This problem as it was in the Quebec Succession Reference in the second and third questions asked.  This leads to issues of what would happen given a new set of facts.  It leaves for an open-ended, not concrete solution where the Court is unable to foresee potential ramifications of outcomes given this limited ability  According to Edward McWhinney “the propose of the reference process in terms of the Court role is to “in its primary responsibility of providing a clear and logically reasoned judicial argument as an authoritative statement to the parties actually before the Court, and also as an educational guide to lower courts, the legal profession and the general public”[6].  Similar to stare decisis the opinion of the Court is binding and as the Highest Court in the land its purposive effect in providing any advisory opinion is to place finality on the subject in some form even if the questions may be politically charged.  The Quebec Succession Reference can be said to not only send a clear picture to Quebec but also the other provinces. Even more complex is to understand if Quebec would have or if another province is willing to succeed would they then follow any ruling of the Court. Why would they?  Between the province wanting to succeed and Parliament it is not clear how this would ultimately be achieved in practice.  Although the Courts opinion might be viewed as a helpful guide to the actual process but why would it be needed to be called upon otherwise when succession itself seems to be a purely political process?

The historical origins of the reference procedure emanated from England. This power of reference was modeled after its origins in England prior to Canada’s gain of independence from England and by extension the JCPC. What Canada has properly adopted from this mechanism is, according to Gerald Rubin, “the strongest moving force for use of the reference power is a desire by both the federal and provincial executives for a 'speedy judicial determination of legal problems arising out of the interpretation of the provisions of the British North America Act and especially the provisions allotting legislative jurisdiction”[7].  The basic idea was that primarily Parliament (and sometimes the provinces) needed to resolve issues of law as it related to jurisdictional powers between the federal and provincial governments.  The reference procedure was first used in Canada this manner. The position of this paper is that this its proper role, particularly, because of what may be considered as gray areas of law.  Canada saw this as a way to resolve issues of jurisdiction; what legislation fell under either section 91 or 92 of the BNA of 1867.[8]  These were purely legal questions which the Court is similarly often called upon today to answer.  In this capacity the only consideration the Court was to provide its opinion on were to be purely questions of law.  As an interpretive function to concrete issues the Courts adopted various principles to help alleviate stress within Canadian federalism regarding jurisdictional boundaries.  As we will see this is in stanch contrast to what types of questions were later referred to the Court beginning with the Patriation Reference case.

Early on, the Supreme Court was reluctant to provide its reasons in their advisory role.  This was possibly due to the Court seeing for itself, that they were treading on political waters (being pushed).  While it can be beneficial for the Court to stand to settle a dispute between the provinces and Parliament for the sake of federalism then it would then be important for those opinions to be rationalized. In this way Parliament may avoid replying the conflict over in the future.  

“This was one of the principal reasons behind the introduction in the House of Commons. of the Hon. Edward Blake's resolution of 1890 on references which in turn led to the amendment in 1891 of the reference provisions of -the Supreme Court Act”[9]  

In the case of jurisdictional dispute this amendment was legally and politically advantageous requiring of the Court, more than a ‘yes’ or ‘no’ answer along with structured reasoning. The advantage of having the Court’s provide an answer of more than yes or no as in the Quebec Succession Reference, is that it sends a clear picture of what Quebec might expect from a response if they chose to go it alone.  More to the point it seemed as if Parliament was calling Quebec’s bluff in having the Court providing Quebec with a way to succeed if it wanted. The Court by ultimately saying ‘yes ‘that Quebec can succeed, sent a signal to Quebec that Parliament would not get in their way.  The Court is validating a purely political action in this sense.  How the reference procedure was used in this sense was that because of the Court affirmation, the years long threats by Quebec of succession we likely to end.  This is where Parliaments entire motivation lay by leaving the Court to answer certain questions had nothing to do with succession and all to do with politics.  Quebec’s purpose behind their threat to succeed was to cloak their other desires of more leeway on other issues from the Federal government.  By threatening to succeed they thought that the Parliament would never allow it and thereby they could use this threat continuously to their advantage in the political arena (the threat of ‘if you don’t give us this then we will succeed’, ended soon after the Courts ruling). 

In 1891-1912, Parliament made amendments to the Governor in Council Reference Power in the Supreme and Exchequer Courts Act.  At this time the Supreme Court was showing reluctance to fully adopt the ways of reference in the English system.   The first reference question posed to the court was the Brothers of the Christian Schools in Canada Reference of 1876.  The Court was reluctant to provide the Legislative branch of government a reasoned answer as a reply to their question(s) on reference.  It was not only this case but through several jurisdictional cases afterwards it was clear that the Courts decisions proved “problematic for the very reason that they ruled against the federal government without providing a reason for their decision”.[10] The very nature of an advisory role is to advise and if no reasons for the decision of the Court is provided then the purpose or substance of an advisory role is lost for lack of meaning.  In this light, in 1891 the Supreme and Exchequer Courts Act was the first of series of amendments that intended “to clarify that the Supreme Court must respond to matters of reference. This role is echoed todays under section 53 of the Supreme Court act”[11].  It was clear that Parliament required decisive reasoning behind the Courts ruling.  The 1891-1912 amendments brought an established operative agreement which brought the role of the Supreme Court as assisting to matters which the Legislative body of Canada saw as important. 

The Supreme Court began to gain its independence from the shadows of the JCPC around this time.  It was not until the Act of Westminster 1931 that the Court and Canada were finally gaining severance from the politics of Britain. “That was followed in 1949 by the general repeal of that right applicable both to appeals from the Supreme Court of Canada, as well as appeals from the provincial courts”[12].  The Court was priming itself for its full independence several years before 1931 but her in 1949 they finally achieved it.  At the same time before all of this came about the Court was continuously evolving its reference powers, tested in various cases leading up to the Statute of Westminster in 1931.  In References by the Governor-General in Council 1910, 

“We must not forget that judges are officers of the Crown, and I adopt without any        reserve the opinion expressed by Dorion C J., a man of wide political and judicial                              experience, when, speaking for the full Court of the Queen’s Bench in Quebec, he   said in Bruneau et al v Massue: The Judges of the Superior Court as citizens are                   bound to perform all the duties which are imposed upon them by either the Dominion or the local Legislature”.[13]

The Court clearly began to show signs of its intention not to act within this scope of a purely legal framework.  In the Quebec Succession Reference, the Court was acknowledging the overlap but saw the impotence of answering all questions to Canada as a whole.  The purpose utilizing the reference procedure here, if it can be understood as partially legislatively influential, arguably achieved unity in Canada.   Criteria for the criticisms of the Federal government’s power of reference are based on the benefits of clear delineations of the three branches of government but benefits can define in many forms.  Again, if Quebec was to succeed how did the Court practically aid the government if not to dissuade Quebec from actually following through with it (regardless of the referendums).

Before examining some of these criticisms of the reference process, it is important to identify the legislation which provides for Parliament its power to refer questions to the Court.  This power is entrenched under section 53 of the Supreme Court Act. According to Grant Huscroft, 

“Section 53(1) specifies a requirement of important questions of law or fact that                                     concern matters of constitutionality, subsection (2) immediately renders this limitation                redundant by extending the reference power to questions of law or fact concerning any                          matter the government sees fit to submit. For greater certainty,                                subsection (2) precludes the Court from limiting any matter by means of esjudem                generis interpretation. Subsection (3) precludes the Court from using the important          question modifier to limit the reference power by deeming any question referred by               the government an important question”.[14] 

Shedding a different light on how the Court answered the first question, Huscroft outlines the amount of latitude they actually have.  In part the Court said in the Quebec Succession Reference that it will determine what is important to answer.  The importance as it sees it, means that it also has an obligation to consider the political ramifications of its opinion.  The Judicial Committee Act 1833 provided Parliament with the power to ask any question it wanted to the Court.  “Under section 53, Parliament has ‘limitless’ discretion as to what they may ask questions on reference”[15].  The key takeaway from the Quebec Succession Reference is that Parliament wanted to remove this threat by Quebec and saw that the only way to put Parliaments bargaining power back on an equal footing was to let the Court answer the questions. With this limitless power, Parliament was able to step back and the people of Quebec no longer felt rhetoric of the Anglo-Saxon pressure the Bloc was spuing.  Arguably this helped calm tensions leading to the final referendum on the subject.  How can politics be properly separated from the reference process, when by its nature Parliament can ask anything, it wants?

The Charter of Rights and Freedoms was patriated in 1982.  Along with it came the embodiment of the Supreme Court.  They began to show a new activism as if they were taking on a new role constitutional law.  As they began to expand their interpretive power under these now Charter rights, they changed the formation of how the Courts viewed themselves in acting in a reference capacity.  According to Carissima Mathen procedurally the Court was setting boundaries for themselves:

“By 1981 the advisory opinion was firmly entrenched in Canada and occupied a significant portion of the Court’s docket. Early changes to the Supreme Court Act ensured that references would take the same form as cases. Certain parties enjoyed statutory rights of participation, and others could be granted standing, evidence could be                received, pleadings prepared, amici appointed, and reasons would always be forthcoming”.[16]   

The role reference has played in politics has been developed by the Courts over time but significantly at a faster pace since the advent of the Charter.  The Court has developed this power through careful evaluation of its past and future roles it will play as advisor to Parliament (we are avoiding discussions of provincial powers of reference).  Prior to the advent of the Charter, reference cases did not share some of the common legal procedures[17].  It was only post-Charter that reference questions now had similar standing as stare decisis.  This transformation of the Court can be viewed as for the better, as it is now become more informed as to its role and can offer answers to these questions free from its own potential internal backlash.  Justices in theory can feel free to provide their opinions no longer worried about how their decisions may impact the decisions of Parliament.  In practice the result is that Parliament washes their hands of any Political backlash from its voters blaming the Courts. The alternative is that the unelected body of the Court can wash their hands of backlash because they are only doing their job as advisor.  

This new evolution of the Charter prompted the Court to begin to map out its parameters under its reference powers.  They defined the types of questions it would and would not consider; deviating far from the old role in its reluctance to provide more than a ‘yes’ or ‘no’ answer.  In the Quebec Succession Reference case [1998], were the Court held that:

“Since reference questions may clearly be interpreted as directed to legal issues, the         Court is in a position to answer them. The Court cannot exercise its discretion to                    refuse to answer questions on a pragmatic basis. These questions raise issues of                           fundamental public importance, and they are not too imprecise or ambiguous to                             permit a proper legal answer.  Nor has the Court been provided with insufficient                      information regarding the present context in which the questions arise. Finally, the        Court may deal on a reference issue that might otherwise be considered not yet ripe              for decision”. [18] 

Where there is discussion about how legal questions are in fact considered to be legal; by this the Court is acknowledging that the questions are not purely legal.  It is difficult if not impossible to delineate from what types of questions the Court will or will not answer.  This is clearly evident in the Same –sex Marriage Reference (2004), where the Court refused to answer a fourth question posed to it “asking if the Quebec Charter was consistent with common law and if so to what extent”[19].  Here it is hard to differentiate the nature of the broadness in questions posed here in relation to the second and third questions posed in the Quebec Succession Reference. The Court has said that it restricted its powers of reference to be more limited to issues that are legal.  In stark contrast to what we have already seen since the Patriation Reference case that the Court rarely refused to answer a question posed on reference.  The Court was correct in its wording; conscious of its the potential misuse by those who may have their own political agenda in mind.  Problematically, in this sense the Court rarely has refused an opportunity to dip their finger into the political pool.  It clearly in the Quebec Succession case acknowledging the potential for legalized politics on the one hand but in practice has rarely ever refused an accommodation by Parliament.

The reference procedure power steams from its persuasive ability.  If the formality of a Courts opinion is of such importance, then its decision must carry with it some weight. But this procedure is unique in that there is no penalty attached to the judgment, so there must be something said about this lack of enforcement.  But, ‘at the same time, Parliament can no more refuse to follow the Courts ruling than the Court can refuse to answer it’[20].  According to Huscroft,

“The rejection of the Courts opinion in reference cases would be futile even if it were a             somehow a viable political option: inevitable, action taken contrary to the Court’s                      opinion would lead to litigation and, barring a meaningful change in circumstances,          the Court could be reaffirmed the opinion it provided in the reference case. As a                           practical matter, it would be under enormous pressure to do so, for its credibility and           institutional authority would be at stake”.[21].

As a binding force Parliament cannot just choose to ignore the decision of the Courts nor why would it want to.  The federal government must follow the Courts ruling to legitimize to their actions, it is not as if they can just ignore the Courts position.[22]  In the Quebec Succession Reference case, the Court spoke of ‘judicial independence as a foundational unwritten principle of the Constitution’,[23] that seems to conflict with a notion of political activism. A better question to ask at this point is how an unwritten principle like judicial independence, that ought to represent autonomy, coincides with aiding in the ‘development of structural doctrine’ (as stated by the Court later in Toronto (City) v Attorney General [2021]) as it relates to the reference procedure itself[24]. Although the Court made no specific reference to judicial independence in the Quebec Succession reference the question remains as to why in answering the first question they may have left it out on purpose.  

The term legalized politics may have been coined for the first time in characterization of the Patriation Reference case of 1981.  Here, the Courts were asked were asked by Trudeau’s government questions pertaining to Parliament’s ability to patriate the Constitution Act of 1982; specifically, what constituted a majority of provincial support.  This non-legal question of convention was raised; if Trudeau’s government was able patriate the Constitution Act of 1982 without majority of the provinces support.  Interestingly enough was that the Suprem Court’s most recent appointees owed their jobs to Trudeau government. According to Peter Russell, 

“Since there was no written constitutional text on the requirements for a Canadian request to the U.K. Parliament to amend Canada’s Constitution, if the Court agreed to answer the questions posed in the reference, it could not avoid dealing with arguments based on unwritten constitutional convention”.[25]  In this case the Court not only recognized the convention, but they answered the question posed to it on convention (in disagreement with Professor Peter Hogg’s views on the subject, this paper argues that the Court by answering the question did enforce a convention).  It seems as if the Courts here expanded their powers establishing that they could answer questions that had in fact no legal foundation. Is this what advisory was meant to be? A legal question, as we have seen, can be framed purposefully to gain a political advantage but a convention is clearly a custom not a law.  The power of refusal should be used when questions of this nature, legally charged, are placed before them to answer.  Neither Quebec, Alberta or New Brunswick could do anything to stop Trudeau in any event.  By employing the Court, Trudeau’s clear intension was political validation as seen similarly in the Quebec Succession Reference.

Most of the controversial surrounding the reference procedure involves the concept of separation of powers.  At the foundation of the animosity among legal scholars is a re-occurring theme that the Courts ‘ought’ not to be used for political gain. Not to be used at the expense of politics because its defining feature of an interpretation of the separation of powers doctrine is that its role strict but by historical example this is not always the case.  To answer a question of convention, a non-legal procedure, seems to beg the question; if the Courts are playing politics. According to Peter Hogg,  

“Governments have infrequently sought references as a way of defusing political or        legal crises; viz. the Manitoba language rights reference, the Patriation reference and   the Succession references. In each case the Court produced a solution that                      arguably exceeded the normal limits of judicial power, but the solution was a clever     one that defused the crisis. Other cases might qualify for this crisis management                   category such as the controversial Provincial Judges Reference”.[26] 

As Professor Hogg has pointed out, these most recent reference cases “carried with it controversial political issues that for one reason or another were unable to be resolved at the political level”[27]. The words ‘unable to be resolved’ seem to be quite harsh because is this not what politics is about, resolving political issues? How then through the reference mechanism are the Court’s better placed to resolve these issues and what motivates Parliament?  The Court found in Quebec Succession Reference that all three questions, which were on their face all politically charged; yet they answered all three.  A convention is not legal issues nor in this papers opinion could they have legal ramifications and to be accurate, a question on reference regarding conventions was answered twice by the Court, not only in the Patriation Reference but also in Quebec Veto Reference (1982). The Courts are influencing politics and are engaged in political activism contrary to its role of advisor on legal issues on live legal issues. The Court said that in the Quebec Succession Reference that “all three questions are clearly "important questions of law or fact concerning any matter"[28] so that they must come within s. 53(2), their advisory role.  If they are to be allowed to construe every question brought before it as having a legal aspect, then there are no bounds to where the Court may travel. 

In Conclusion 

The Quebec Succession Reference illustrates the Courts continued role in actively playing politics by their own affirmation of its role in the reference procedure as advisory to Parliament’s whims.  There should be clear boundaries implemented ensuring that the Supreme Courts declines to answer all questions posed to it on reference, that are clearly politically motivated.  In precluding this the Court is more if not in its proper role as a judicial body that provides rulings on live issues that come before it. The Courts role in providing advisory opinion on reference has changed historically from its adoption to post Charter.  This case affirmed four unwritten principles of the constitution (as it did in B.C. v Imperial Tobacco Canada LTD [2005]): federalism, democracy, constitutionalism and the rule of law. It seems that its fundamental role as judiciary sees too much overlap in a legislative role mudding the meaning of these principles.  The reference procedure has always thrown the Court into a political role that is at odds with its image as a purely legal institution. Most of the questions posed to the court historically in Canada are politically charged and not live rendering the Court helpless in any answer that they may provide.  The idea of a democratically elected government being influenced by an unelected row of nine judges is how the mechanism of reference leaves a bad taste in the mouths of conational analysists.  As this paper has pointed out the role of the Court in reference cases is to offer its opinion. In offering their opinion Parliament is seeking more than just guidance on political issues; they need justification in the eyes of the voters on particularly sensitive issues. 

End Notes

1.     Peter Hogg, “Constitutional law of Canada”, 3rd edition (1992)

2.     Russell, Peter., The Patriation and Quebec Veto References: The Supreme Court Wrestles with the Political Part of the Constitution https://digitalcommons.osgoode.yorku.ca/sclr/vol54/iss1/3/

3.     Carissima Mathen Dialogue Theory, Judicial Review, and Judicial Supremacy: A Comment on "Charter Dialogue Revised" http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1258&context=ohlj

4.     Huscroft, Grant, Politics and the Reference Power http://www.cpsa-acsp.ca/papers-2010/Huscroft.pdf

5.     Dodek, Adam., Courting Constitutional Danger: Constitutional Conventions and the Legacy of the Patriation Reference, Suprem Court Law Review (2011), 54 S.C.L.R. (2d)

6.     Rubin, Gerald, The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law. https://lawjournal.mcgill.ca/wp-content/uploads/pdf/7455946-rubin.pdf

7.     Puddister, Kate., Unravelling Reference Questions: Theoretical and Political Implications in a Canadian Context.  http://www.cpsa-acsp.ca/papers-2013/Puddister.pdf

8.     Kevin Mitanidis, “The Oracle of Delphi” Unpublished work, Paper submitted to York University. Several of the quotes (1-6 above) utilized in this paper were taken from past research in this earlier work of mine. While the quotes were structured and utilized differently, they were imperative for pointing to a similar conclusion that the Courts, as they were in the Quebec succession reference, are involved in legalized politics.

[1] The Succession Reference case of [1998] para 1

[2] Puddister, Kate., Unravelling Reference Questions: Theoretical and Political Implications in a Canadian Context, p 1

[3] Ibid, p 1

[4] Quebec Succession reference [1989], para 8

[5]. Rubin, Gerald, The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law p 1

[6] Dodek, Adam., Courting Constitutional Danger: Constitutional Conventions and the Legacy of the Patriation Reference, Suprem Court Law Review (2011), 54 S.C.L.R. (2d). p 119

[7] Rubin, Gerald, The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law p 170

[8] Ibid p 170

[9]  Rubin, Gerald, The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law p 171

[10] Carissima Mathen Dialogue Theory, Judicial Review, and Judicial Supremacy: A Comment on "Charter Dialogue Revised" p 4

[11] Ibid p 4

[12] Ibid, p 1

[13] References by the Governor-General in Council 1910 page 551

[14] Huscroft, Grant, Politics and the Reference Power. p 4

[15] Ibid p 4

[16] Carissima Mathen Dialogue Theory, Judicial Review, and Judicial Supremacy: A Comment on "Charter Dialogue Revised" p 151

[17] See, ‘persons’ case 1929, when the Court was asked to define what the term persons meant before the case headed to the JCPC.

[18] Quebec Succession Reference case [1998]

[19] Same-sex Marriage reference [2004]

[20] Kevin Mitanidis “The oracle of Delphi”

[21] Huscroft, Grant, Politics and the Reference Power p 2

[22] Ibid p 16

[23] Quebec Succession Reference case [1998] para 53

[24] See, City of Toronto v A.G. [2021

[25] Russell, Peter., The Patriation and Quebec Veto References: The Supreme Court Wrestles with the Political Part of the Constitution p 70

[26]  Dodek, Adam., Courting Constitutional Danger: Constitutional Conventions and the Legacy of the Patriation Reference, Suprem Court Law Review (2011), 54 S.C.L.R. (2d ).p 121

[27] Peter Hogg “Constitutional Law of Canada” p 19

[28] Quebec Succession Reference [1998]