Thursday, July 10, 2014

Reference Cases Are Not The Problem

Over at iPolitics, James Matkin and Clive Cocking are busy moaning about how the Supreme Court "kills innovative legislation" in the form of "reference cases".

The basic thesis of their argument is that we need to take away from the Supreme Court of Canada the ability to hear "reference cases".  A reference case is fundamentally a hypothetical case - a "what if we wrote legislation like this" test.  For most Canadians, the most recent "Reference Case" was Harper's "Senate Reform" gambit, which got smacked around for violating various aspects of the division of powers in the Constitution.

Matkin and Cocking complain that these reference cases effectively drag the Supreme Court into the political discourse where it has no business being.

I respectfully disagree with their analysis of the situation.  The problem is not reference cases at all, but rather the manner in which the current government has approached the matter.
Since 1875 the federal government has dumped an astounding 75 reference cases into the lap of the court. Many of them have involved the thorniest of political issues, such as Quebec secession or Senate reform.
Quite frankly, if in 139 years, we have put 75 cases before the Supreme Court of Canada, that's not exactly a huge amount.  Thats one every couple of years, roughly, and for the most part, those have been legitimate cases of the government's lawmakers asking very real questions about the legitimacy of a given legislative approach to a problem under this country's Constitution.

On the whole, it has been quite useful when one examines it as a tool to help lawmakers (who are seldom experienced members of the judiciary) to consider the implications of legislation they are considering, or for that matter the more subtle aspects of constitutional law (as the 1998 Quebec Secession reference addressed).  Given the speed with which the court system moves as a whole, there is much to be said in favour of a reference case being heard - not the least of which is to serve as a baseline for guidance as to how a court would look upon a particular issue in the future.  While these are definitely theoretical moments, it takes years (and millions of dollars) to litigate an issue to the Supreme Court to have it overturned on charter or constitutional grounds.   When it is something which could have been avoided by simply asking the obvious questions up front, it saves all involved an enormous amount of grief (and money).

Citing Harper's Senate reference as an example, Matkin and Cocking seem to believe that Harper should have just legislated as he wished and then have the whole mess before the Supreme Court.  One doesn't have to be a Constitutional scholar to realize that Harper's entire approach to the Senate violated multiple articles of Canada's Constitution.  Since Harper has shown repeatedly that he has no interest in writing laws which respect Canada's constitution, one could arguably say that the reference case saved Canada millions in litigating the matter.

Harper has tried to use this to claim that Senate reform is "impossible".  Of course, what Harper is really saying is that he is unwilling to engage with the provinces to make the amendments needed to achieve his vision of a reformed Senate in Canada.  Since 2006, Harper has not once met with all the provincial Premiers.
Justice Frankfurter of the U.S. Supreme Court rightly described such advisory opinions as “ghosts that slay”, particularly innovative legislation. Our Parliament has repeatedly used this legal device to dodge its duty to act on tough issues. One of the most craven examples was the federal government’s 2011 decision to let legislation creating a national securities regulator die stillborn in the face of a negative Supreme Court reference opinion – when three sections of the constitution give Parliament adequate trade and commerce powers to enact such legislation.
Oh ... it kills "innovative legislation"?  No more than writing that legislation and having it struck down as a result of subsequent litigation.  Again, the example that the authors cite is another case where Harper and his government would have to engage with the provinces directly in order to develop an acceptable model.  Harper refuses to engage with anyone outside his inner circle in the PMO, and he is incapable of developing any kind of meaningful compromise.

The problem is not reference cases, nor is it the politicization of the Supreme Court that they argue arises from such cases.  The problem is a government which has no respect for the Constitution of Canada and a Prime Minister who is unwilling to actually engage with the provinces.  Harper is the problem, not the reference cases.

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