Thursday Thinkpiece: Seeking the Court’s Advice–The Politics of the Canadian Reference Power

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Seeking the Court’s Advice: The Politics of the Canadian Reference Power

Author: Kate Puddister

ISBN: 9780774861113
Publisher: UBC Press
Page Count: 290
Publication Date: November 15, 2019
Regular Price: $32.95 (paperback)

Excerpt: from the Introduction
[Footnotes omitted. They can be found in the original here]

The Canadian Case

The Canadian practice of seeking advisory opinions through the reference power is quite distinctive when compared to many common law countries. Although the Parliament of Canada adopted a reference power to mirror a similar practice in the United Kingdom, advisory opinions on there have essentially fallen into disuse (see Jay 1997). In comparison to most former British colonies, Canada is unique. Advisory opinions and abstract review are prohibited in all American federal courts, New Zealand, and Australia. It is useful to briefly consider why each of these countries has eschewed advisory opinions – as these considerations can have important lessons for Canada.

In the American context, the United States Supreme Court also inherited the United Kingdom’s practice of advisory opinions and initially provided advice to Congress (“Advisory Opinions” 2011). However, in 1793 the Supreme Court, led by Chief Justice John Jay, refused to issue an advisory opinion in response to twenty-nine questions submitted by the Cabinet of George Washington. The Washington government sought advice about American obligations to international law and treaties in the context of an ongoing war between the British and the French. The Jay Court responded by explaining that answering such questions would require the court to participate in an extrajudicial activity that would be improper in light of the separation of powers between the judicial, legislative, and executive branches (Jay 1997).

As a consequence, the United States Supreme Court has refused to provide advisory opinions since 1793. There are several reasons for this refusal. First, the ban on advisory opinions has been defended by interpreting the clause on cases and controversies in Article 3 of the American Constitution. For example, in Ashwander v Tennessee Valley Authority, the Supreme Court explained that Article 3 prevents the court from considering “the constitutionality of legislation in a friendly, non-adversary proceeding,” as with abstract review. In short, if t here is no controversy, there is no case. Second, the court has explained that, in the spirit of judicial independence and the separation of powers, the judiciary must operate as a coequal branch of government and, as such, that it cannot be compelled to advise the executive or legislature (“Advisory Opinions” 2011). Third, the court has objected to the abstract nature of the advisory process, finding that hypothetical questions can prevent the dynamic representation of all sides of an argument and thereby undermine the adversarial nature of courts (“Advisory Opinions” 2011).

Although advisory opinions have been prohibited in American federal courts since the late eighteenth century, several state supreme courts do accept requests for advisory opinions from state legislatures and/or the governor. The state Constitutions of Colorado, Florida, Maine, Massachusetts, Michigan, New Hampshire, Rhode Island, and South Dakota authorize advisory opinions, whereas Alabama and Delaware provide the advisory power through statutes. Finally, North Carolina allows for advisory opinions based on judicial initiative (see Rogers and Vanberg 2002).

Like the United States Supreme Court, the High Court of Australia refuses to provide advisory opinions. During the Australian Constitutional Convention of 1897–98, delegates reviewed and considered the process provided in the United Kingdom’s Judicial Committee Act of 1833 and in the Canadian practice of reference opinions. Many convention participants found that the determination of abstract questions was not within the proper scope of the judiciary and thus rejected the practice of the United Kingdom and Canada, ultimately preferring to follow the American model (Zines 2010). The restriction on Australian advisory opinions was confirmed by the High Court in Re Judiciary and Navigation Act, where it found that Parliament does not have the ability to “confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of any body or person being involved.” Although the formal practice of advisory opinions is prohibited in Australia, Zines (2010) notes that the High Court has, on occasion, provided advice to governments through obiter dicta.

When New Zealand engaged in institutional reform in the early 2000s, it too considered the practice of reference opinions. In creating the New Zealand Supreme Court in 2004, the government explicitly rejected a proposal to create a reference jurisdiction, citing the Canadian model (Office of the Attorney General 2002). The New Zealand Advisory Group for the Office of the Attorney General reviewed the Canadian reference power and found that “it has been a common complaint that some of the opinions rendered in references have propounded doctrine that was too general and abstract to provide a satisfactory rule” (48). After its brief review of the Canadian experience with a reference power, the Advisory Group recommended against adopting such a power for the New Zealand Supreme Court, shutting the door to a New Zealand reference-like power.

The United States, Australia, and New Zealand either explicitly rejected the creation of an advisory power for their high appellate courts or, if one had been provided in the past, abandoned it before the turn of the nineteenth century. New Zealand’s rejection of the advisory function was a reaction to the Canadian experience with the reference power. Australia found that providing the judiciary the power to issue advisory opinions would require the courts to engage in a process that was ostensibly unjudicial. The American rejection of an advisory function for the Supreme Court was born out of concerns over judicial independence and the limited institutional capacity of the court to consider abstract and hypothetical questions. The American unease with advisory review is not unwarranted, and the present study demonstrates that many of the American concerns have a risen with the Canadian reference power. The implications of these concerns animate the critical analysis that follows.

When juxtaposed with its more common comparators, the Canadian reference power is unique. However, if the scope is expanded beyond the routine comparative cases, we find that abstract review, similar in principle to the Canadian reference power, is a routine feature in the constitutional courts of several European civil law countries. As discussed in Chapters 1 and 6, the high courts of many European civil law jurisdictions regularly engage in abstract review and issue advisory opinions to governments. The process of some European countries, such as Germany, France, and Italy, is considered in greater detail in the chapters that follow.

It is important to note here that institutional features, such as the executive-centred nature of the Canadian political system and reference process, distinguish the Canadian case from many of the constitutional courts of Europe. For example, abstract review in European constitutional courts is more accessible and often available to the legislature and groups outside the governing party. In Canada the power to initiate abstract review is the sole prerogative of Cabinet through the governor in council (or lieutenant governor in council). Moreover, there are few restrictions on the timing and nature of questions that a government can ask in a reference case, which creates a concentration of power not found in civil law countries, like France and Germany. Yet, even with a different institutional arrangement and a decentralization of the power to request abstract review, many European constitutional courts often find themselves at the centre of political and normative disputes, which has been well documented by scholars (see Stone 1992; Kommers 1994; Shapiro and Stone 1994; and Stone Sweet 2000). Comparatively little is known about the Canadian case and its parallels with European constitutional courts, despite some of the similarities.

This brief discussion of the comparative context of advisory opinions helps to establish that the Canadian reference power is a compelling case for analysis. Reference cases combine the abstract judicial review typically found in civil law jurisdictions with the executive-centred Westminster parliamentary system. This combination creates institutional and actor variables that provide interesting and unique circumstances for analysis, as well as fruitful opportunities for comparison with the constitutional courts of Europe. It is the intention of this study to encourage scholars of comparative law and judicial politics to take up this task, which requires eschewing the barriers imposed by the differences between common law and civil law legal systems.

Puzzle and Central Argument in Brief

The Canadian reference power raises several questions. Why would political actors effectively cede a portion of their decision-making power to the courts in reference cases? How does the reference power encourage or permit political tactics and strategic litigation? Why would governments request, and choose to be bound by, an advisory opinion from the courts that could run counter to their policy or political goals? Why would elected officials value a definitive judicial decision over a flexible approach that could be conducted via interinstitutional or intergovernmental bargaining? Finally, what are the implications of the Canadian reference power for the relationship between courts and elected political actors? Each of these questions is considered in this book.

This study is driven by two central inquiries. First, how have Canadian governments used the reference power? Understanding how the reference power has been used over time and the nature of reference cases provides the necessary foundation for addressing the second question. Specifically, what are some of the reasons why a government would use the reference power? These questions raise several theoretical concerns regarding the relationship between the reference power and democratic governance. Chief among these considerations is the effect of the reference power on judicial independence and the separation of the judiciary from the partisan branches of government, with a particular focus on the executive.

I argue that Canadian governments ask reference questions to benefit strategically from the unique characteristics of the reference power and to draw on some of the advantages inherent in judicial review. There are five explanations that help to establish why governments rely on the reference power. Before reviewing some of the reasons, it is essential to note that these explanations should not be understood as mutually exclusive. Instead, my analysis makes it clear that a single reference case can be the product of several different strategic considerations on behalf of a government and that a reference case can satisfy multiple goals. Although governments may rely on the reference power more often to satisfy one strategy over another, it is unfortunately not possible to definitively state which type of strategy has been employed in each and every case. This finding highlights a key implication of this research: the Canadian reference power uniquely provides governments with many strategic opportunities that may not be achieved through routine ligation or the regular political process.

A government’s decision to use the reference power can be the product of several considerations. First, governments will ask reference questions for strategic reasons and to avoid political controversy. Instead of dealing with a highly salient issue, governments will avoid their decision-making responsibilities by asking the courts to decide for them. Second, references help governments to understand the limits of constitutional jurisdiction and other matters related to federalism, such as negotiating with other governments, and to clarify their own constitutional or legal powers. In a related sense, throughout Canadian history, governments have used the reference power to protect constitutional jurisdiction from the intrusions of other governments. Third, a reference case can allow a government to benefit from the institutional authority and protection of the courts. A reference can protect government policy from future legal challenges or, at the very least, make it difficult to mount a challenge similar to that addressed in a reference. Fourth, because the reference process is relatively quick compared to routine review, governments can rely on the reference power to address pressing issues in a timely manner. Finally, governments will use the reference power to benefit from the structural advantages made possible through abstract review. Rather than waiting for routine litigation to materialize, governments have used reference cases because they allow for an amount of control, and even manipulation, in the framing of questions and issues considered by a court that is not possible in routine litigation.

In addressing these reasons for using the reference power, this book makes several important contributions. First, it provides a comprehensive political analysis of Canadian reference cases and the reference power since its creation in 1875. This book examines all reference cases adjudicated by provincial appellate courts and the Supreme Court of Canada from 1875 to 2017, a total of 209 cases. Second, this project analyzes litigation strategy in reference cases and assesses why delegating decision making to a court can be a viable political option for a government, providing insight into this most common, yet generally understudied, litigant.

This study provides an examination of the central features of all Canadian reference cases, documenting important descriptive characteristics and trends over time. Addressing the use of references since 1875 shows that the use of the reference power has mirrored periods of great political and social contestation. This book also makes important contributions to understanding how reference cases compare to routine litigation across several dimensions, such as type of review (abstract or concrete), intervener participation, unanimity rates, authorship styles, and case disposition. This analysis engages with important theoretical questions that concern the ability of courts to refuse to answer reference questions and the implications of question refusal for the separation of powers and judicial independence.

Finally, building on the analytical description of reference cases, this study examines why reference cases are a viable political strategy. It addresses the benefits and potential pitfalls for governments that flow from the unique nature of the reference power. This dimension of the research is evaluated through in-depth interviews with individuals involved in past reference cases, such as former attorneys general, constitutional experts, government counsel, and a former first minister. These interview data are grounded in secondary scholarship and analysis of historical and archival documents. While demonstrating the benefits of the reference power, this study also analyzes potential drawbacks to references through an analysis of two cases in which governments considered a reference but ultimately abandoned this option. This analysis is conducted through the lens of delegation theory – a perspective that seeks to explain why principal decision makers will empower independent agents, such as the courts, by allowing them to control and manage some issues (Graber 1993; Salzberger 1993; Ginsburg 2003; Hirschl 2004; Finkel 2008; Hilbink 2009). Employing delegation theory helps to link the Canadian case to a larger literature that has been underexplored in previous Canadian scholarship. In pursuing this delegation-based explanation, the study applies this theoretical framework in a novel manner to understand the relationship between courts and the executive as it relates to the reference power. This study demonstrates that the actual outcome of a reference case – win or lose – is almost secondary to the political benefits that can be attained from simply involving the courts through the reference power.

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