Academic journal article Canadian Parliamentary Review

Parliamentary Timing and Federal Legislation Referred to Courts: Reconsidering C-14

Academic journal article Canadian Parliamentary Review

Parliamentary Timing and Federal Legislation Referred to Courts: Reconsidering C-14

Article excerpt

Parliamentarians frequently express a desire to obtain a Supreme Court of Canada opinion on the constitutionality of proposed legislation. For example, recent legislation regarding medical assistance in dying, Bill C-14, met with calls for such an opinion. In this article, the author explores six reference contexts that exist with respect to federal legislation through the lens of a hypothetical Bill C-14 reference: referral prior to introduction, referral concurrent to introduction, referral after introduction, referral after enactment, enactment conditional on referral, and provincial references. He concludes by noting that although legislators may desire judicial pronouncements regarding the constitutionality of legislation, difficulties arise because the executive primarily controls the current suite of reference powers. As such, parliamentarians resort to other means to inform their legislative choices with respect to constitutional compliance.

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It is easy to understand the oft-expressed desire of parliamentarians to obtain a Supreme Court of Canada opinion on the constitutionality of proposed legislation. Certainly, judicial decisions regarding the constitutionality of a proposed enactment may assist legislators in making their legislative choices and may help to further their understanding of the Constitution. (1) There may also be a strategic perspective as well--sending a proposal to the Court may allow for a matter to be delayed in Parliament while under judicial consideration. (2)

Recent legislation regarding medical assistance in dying, Bill C-14, (3) was met with suggestions in Parliament that it be referred to the Supreme Court. (4) While Bill C-14 was never referred--and is now the subject of a legal challenge (5)--Parliament's experience with this bill highlights the potential interplay between Parliament and the courts in reference cases.

The Supreme Court Act allows the Governor in Council to refer questions to the Supreme Court. (6) These questions may concern federal legislation, whether proposed or enacted. Analogous provincial legislation allows provincial cabinets to refer matters to particular provincial courts and may also be used to question federal legislation. (7)

What follows is a discussion of the six reference contexts that exist with respect to federal legislation; referral prior to introduction, referral concurrent to introduction, referral after introduction, referral after enactment, enactment conditional on referral, and provincial references. Each is examined through the lens of a hypothetical Bill C-14 reference.

Though the Supreme Court Act additionally permits the Senate or House of Commons to refer private bills to the Court directly, (8) private bills are now the least common legislative vehicle and this reference power has not been used since 1882. (9) Parliament could not have referred bill C-14 directly to the Supreme Court because it was not a private bill.

Referral Prior to Introduction

The Governor in Council may submit a draft enactment along with questions for the Supreme Court's consideration. Once the Court's decision is rendered, the government may introduce that draft as a bill in Parliament, modify it prior to introduction to reflect the Court's findings, or refrain from introducing it altogether.

For example, in the Securities Reference, the government drafted securities legislation that was sent to the Court for review, but it was not introduced in Parliament after the Court found that the matter was within provincial jurisdiction. (10) In Reference Re Same-Sex Marriage, the Court ruled on a draft enactment that was later introduced in Parliament with changes reflecting the Court's opinion. (11)

Though Bill C-14 could have been referred as a proposal that was not yet introduced in Parliament, the timing might have been problematic. The bill was responding to a Supreme Court decision that struck down several statutory provisions but suspended the declaration of invalidity; (12) that suspension was subsequently further extended. …

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