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

By Feldman, Charlie | Canadian Parliamentary Review, Summer 2017 | Go to article overview

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


Feldman, Charlie, Canadian Parliamentary Review


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.

**********

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.