THE NATURE, USE AND EFFECT OF REFERENCE CASES
IN CANADIAN CONSTITUTIONAL LAW
Gerald Rubin*
THE NATURE OF REFERENCE CASES
An analysis of the nature of “reference cases” requires a working definition
of that term and a term which is synonymous with it; “advisory opinions.”
An “advisory opinion” has been defined as follows.’
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.
It is the concluding words of this definition which point most clearly to the
outstanding, characteristics of a reference case. A “concrete case at lawy”
is
characterized by at least two features: rival litigants, and a specific actual
fact situation out of which their dispute arose. It is the peculiar mark of the
reference case that it has neither of these features.
The absence of the first feature is one of the key factors distinguishing the
the
the reference
reference or advisory, opinion
absence of the second feature is the basic distinction between
and the stated case.
from the declaratory
judgment, while
It has been stressed that, the advisory opinion differs “fundamentally” from
the declaratory judgment and that the function of rendering advisory opinions
belongs properly -to the law officers or the attorney-general. The power has
been exercised by the courts simply because there has been no constitutional
bar and the courts have -been unable to decline.
The advisory opinion binds no one, not even the judges, is not rendered between
parties, is given to the asking official or department and is often rendered without
hearing argument. In all these respects it differs from the declaratory judgment.
Even if argument is heard by parties with opposing interests . . . it lacks one
of the essential elements of a judgment in that it is rendered not on demand of
and
to an
administrative body. 2
to an aggrieved or complaining party, but on demand of and
*This article is a condensation of a thesis that tied for the Public Law Prize in third
year at McGill University. Mr. Rubin is presently a fourth year student of notarial
law at the University of Montreal.
‘Black’s Law Dictionary, 4th ed. (1951), p. 75. The definition continues: “Merely
opinion of judges or court which adjudicates nothing and is binding on no one, in
exercise of wholly non or extra-judicial function. The -expression ordinarily connotes
the practice which existed
times of extra-judicial
consultation of the judges by the Crown and the House of Lords.”
from very early
in England
2 Borchard, E. M., Declaratory Judgments, 1st ed.,
(1934), pp. 51-52, cited by
J. F. Davison in “The Constitutionality and Utility of Advisory Opinions”,
(1937-38),
2 University of Toronto L.J. 259, n. 24. See also the second edition of Borchard’s
work, 1941, at pp. 71-73. Osborn’s Concise Law Dictionary, 4th ed. (1954), defines
a declaratory judgment as follows: “A judgment which conclusively declares
the
No. 3]
REFERENCE CASES
The distinction between the stated case and the reference must also be
borne in mind. “It is absolutely settled law,” writes an Australian judge,3
“in both England and Australia that the expression ‘state a case’ involves
stating facts, that is, the ultimate facts, requiring only the certainty of some
point of law applied to those facts to determine either the whole case or some
particular stage of it.” It is just this factual basis which is lacking in the
reference case.4
The distinctions we have attempted to make are not matters of purely
academic interest. In Re Board of Commerce5 the Supreme Court of Canada
rebuffed an attempt to submit to it what was in reality a reference under
the guise of a stated case. S. 32 of The Board of Commerce Act of 1919
empowered the Board of Commerce to state a case in writing for the opinion
of the Supreme Court upon any question which, in the opinion of the Board,
was a question of law or jurisdiction. Acting, or claiming to act, under this
section, the Board of Commerce drew up a list of six questions.
Three of the questions were concerned with the constitutional validity of
certain provisions of the Combines and Fair Prices Act of 1919, the others
with the construction of certain sections of the same statute. When the matter
came to be considered by the Court, it found that the questions presented
did not constitute a “stated case” within the meaning of the Board of Com-
into the
merce Act. The Board then inserted a typewritten memorandum
record stating that the questions had arisen as a result of certain matters
actually pending before the Board, but this too was rejected because, in the,
words of Anglin J., “it did not contain any statement out of which the
questions formulated arose.” The Court based itself upon an English decision,
Re Cardigan County Council,6 where it was held that in stating a case for
the High Court under s. 29 of The Local Government Act of 1888, “the facts
which have actually arisen” and the decision thereon, must be set forth, and
that the High Court would not answer questions as to the construction of
judgment
legislation
litigants without the appendage of any coercive decree.
pre-existing rights of the
(1938), p. 307; Black’s Law Dictionary,
See also Wharton’s Law Lexicon, 14th ed.,
4th ed., p. 497. The Judicature Act, R.S.O.. 1950, c. 190, s. 20. For cases under
see Attorney-General for Canada v.
declaratory
Attorney-General for Ontario, (1891-92), 19 O.A.R. 51, Attorney-General for Ontario
v. Attorney-General for Canada, [1931] 2 D.L.R. 297; Motor Car Supply Co. v.
Attorney-General for Alberta, [1939] 3 D.L.R. 660.
in Canada
3Australian Commonwealth Shipping Board v. Federated Seamen’s Union of
Australasia, (1925), 36 C.L.R. 442, per Isaacs J., at p. 450, cited in Words and
Phrases Judicially Defined, (1945), Vol. V, p. 152.
4See Borchard, op. cit., 2nd ed. pp. 221-23 for a discussion of the special case –
“an agreed statement of facts for the determination of a disputed issue of law” –
“used by certain special courts and
and its variation in the special case stated –
administrative tribunals to test the validity of their orders.” At p. 223, n. 65, Borchard
cautions against confusing the special case stated with the advisory opinion.
6(1920), 60 S.C.R. 456.
6(1890), 54 J.P. 792.
McGILL LAW JOURNAL
[Vol. 6
the statute “unless arising out of acts which have actually occurred.” The
justices of the Supreme Court looked upon the questions submitted by the
Board, again in the words of Anglin J., as an unintentional assumption, under
the guise of a stated case, of the power conferred on the Governor-General
in Council by the Supreme Court Act for hearing and considering the
constitutionality of any federal or provincial legislation. 7
For purposes of this paper, reference cases may be defined as matters
referred to the courts under the provisions of the Supreme Court Act, R.S.C.,
1952, c. 259, ss. 55,56,37 and corresponding provincial legislation.8
Thus, the term “reference case”, as we intend to use it, is at once -wider
and narrower than the definition we cited at the beginning of this paper. It
is wider in the sense that matters of law and fact can be submitted under the
federal or provincial reference legislation, narrower in that references to the
law officers of the Crown are not included in it.
THE USE OF REFERENCE CASES
i. Constitutional references –
general.
Generally speaking, 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. The question as to which legislative authority
has the power to implement treaty obligations, one involving ss. 91, 92, and
132, is an excellent example. The answer to this question has been, almost
in its entirety, furnished by the Supreme Court and the Judicial Committee
in answer to references submitted to them.9
In terms of the actual content of the British North America Act references,
there is no very significant difference between the use of the federal reference
power and
terms of
motivation, beyond the common federal and provincial interest in obtaining
information as to the working of that Act, there are special factors peculiar
to the use of the federal reference power which will now ‘be considered.
the use of the provincial reference power. But in
7The difficulty was finally overcome when the Board made a third submission to
the Court containing the required statement of facts. For the account of the Boards
difficulties in obtaining a hearing, see the remarks of Anglin J., (1920), 60 S.C.R.
456 at pp. 457-59 and those of Idington J. at pp. 475-80.
SR.S.N.S., 1954, c. 50; R.S.P.E.I., 1951, c. 79; R.S.N.B., c. 120, s. 24A; Statutes
of Newfoundland, 1953, No. 3; R.S.Q., 1941, c. 8; R.S. Man., 1954, c. 44; R.S. Sask.,
1953, c. 18; RtS. Alta., 1955, c. 55; R.S.B.C., 1948, c. 66.
gReference re Employment of Aliens, (1922), 63 S.C.R. 293; Reference re Waters
and Water Powers, [1929] S.C.R. 200; Reference re Hours of Labour, [19251 S.C.R.
505; Reference re Regulation and Control of Aeronautics, [1930] S.C.R. 663; Reference
re Regulation of Radio Communication, [1931] S.C.R. 541. The Labour Conventions
Reference, [1936] S.C.R. 461.
No. 31
REFERENCE CASES
ii. Constitutional references –
disallowance.
Reference has long been considered as a useful aid to the federal executive
in the exercise of its disallowance, power. This was one of the principle 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. In supporting his
resolution in the Commons, Blake outlined his view of the relationship between
the reference power he desired and disallowance. 10
Now, Sir, in the exercise of this power of disallowance by the Government, political
questions may . .
. arise. Questions of policy may present themselves, that is,
questions of expediency, of convenience, of the public interest, of the spirit of
the constitution or of the form of legislation. All these are clearly, exclusively
for the executive and legislative, that is, for the political departments of the
Government. But it is equally clear that when, in order to determine your course
you must find whether a particular act is ultra or intra znres, you are discharging
a legal’ and judicial function . . . Now, I aver that in the decision of all legal
questions, it is important that the political executive should not, more than can
in the discharge
be avoided, arrogate
legal questions, it ought
of its political duties, it is called upon to deal with
to have the power, in cases of solemnity and importance where it may be thought
expedient so to do, to call in aid the judicial department in order to arrive at a
correct solution.
to itself judicial powers; and that when
incidents peculiar
the federal executive were
The decision that an act was ultra vires, he continued, and its consequent
disallowance by
to Canada.
involved grave ulterior
It was a most delicate function and its exercise
consequences. The question whether the act disallowed was or was not valid
was removed from judicial cognizance forever. Thus, by repeated exercises
of the power of disallowance, in respect to repeated provincial legislation,
a province might practically be deprived of that which might be a right
justly claimed. One of two limited governments might practically decide
the extent of the limits of what was, in a sense, its rival government. A decision
under such circumstances would necessarily be suspect. It would, in a sense, be
the decision of a party in its own cause. The concurrence of a neutral and
respected court was necessary to strengthen the decision of the executive.
in opposition
to the continued view of a
My own opinion is that whenever,
Provincial Executive and Legislature, it is contemplated by the Dominion Execu-
tive to disallow a provincial Act because it is ultra vires, there ought to be a
in certain cases where
reference; and also that there ought to be a reference
the condition of public opinion renders expedient a solution of legal problems,
dissociated from those elements of passion and expediency which are rightly or
wrongly too often attributed to the action of political bodies.,
The relationship between references and disallowance was also discussed
by the Federal Minister of Justice, Sir John Thompson. during the debate on
the amendment of 1891. The disallowance power, explained Sir John, was
exercised in two classes of cases: first, where an act of a provincial legislature
10 For the speeches on the resolution by Blake and Sir John Macdonald see Debates,
House of Commons, Canada, 1890, Vol. II, 4084-94.
Ibd.
McGILL LAW JOURNAL
[Vol. 6
was in conflict with Dominion policy, Dominion rights, or Dominion property;
and secondly, where it was felt by the Dominion executive that the legislature,
in passing the act in question, had exceeded its powers. It was with regard to
the second class of cases that Sir John felt the reference power, as provided
for in the amendment, would be of assistance. As matters presently stood, he
said, when it was felt that the operation of an unconstitutional act would create
public inconvenience, its disallowance was recommended, but the basis for
this was merely the opinion of the Minister of Justice. Henceforth, he declared,
he took it for granted that in nearly every case of that kind, reference would
be had with a view to understanding what were the constitutional rights of the
legislature. If the Court held the act to be intra vires, since the opinions
would be only advisory, the bare power of disallowance for constitutional
reasons would remain. However, he acknowledged’ 2
.
. it would be more absurd and practically impossible for
.
the Minister of
Justice to advise that it should be disallowed, after the highest tribunal had decided
that the Act was within the powers of the Provincial Legislature.
It will be at once perceived that Blake and Thompson had advanced definite
criteria which were to guide the federal executive in using the reference in
disallowance cases. ‘Constitutional” cases involving questions of ultra sires
were to be referred to the Court, while cases involving “policy” were, as
Blake said, “clearly, exclusively for the executive and legislative, that is for
the political departments of the Government.” However, there is often no
clear cut line between “constitutional” cases and “policy” cases. “Constitu-
tional” cases often involve strong elements of “policy” and vice versa. There
is thus a danger that the federal executive, where a case involves both the
constitutional issue and highly controversial questions of policy will shirk its
disallowance responsibility and pass political “hot potatoes” to the Supreme
Court under the guise of following the rule that cases involving the constitu-
tionality of a statute should not be decided by the executive but by the courts.
It has been suggestsed that this was indeed the policy of the Federal Cabinet
during the great storm that arose in the thirties over Alberta
legislation.
When the first group of Alberta statutes was enacted, the first move of Prime
Minister King was to suggest a reference. It was only when this tactic, and
others, had failed that the Federal Cabinet, “smoked out”, as it were, resorted
to disallowance. 3
‘ 2Debates, House of Commons, Canada, 1891, Vol. I, 3586-87.
13 Mallory, J. R., Disallowance and the National Interest, 1948, Canadian Journal
of Economics and Political Science, p. 357. Eugene Forsey writes: “Authentic copies
(of the Alberta Acts) reached the Governor General August 10th
(1937). On the
same day the Minister of Justice wrote a long and elaborate report recommending
disallowance. On August 11th the Prime Minister telegraphed Mr. Aberhart, Premier
of Alberta, that the Minister of Justice
‘is considering’ disallowance and offered to
refer the Acts to the Supreme Court if Mr. Aberhart would suspend their operation.
No. 3 ]
REFERENCE CASES
Sir John Macdonald was aware that a danger existed but felt that the
terms of Blake’s resolution, the substantial basis for s. 55 of the Supreme Court
Act as it is enacted today, would enable it to be avoided. He told the Commons,
in accepting Blake’s resolution, that it had at first seemed to him to be a step
toward the American system which transferred the responsibility of the Ministry
of the day to a judicial tribunal, but he saw now that Blake had been careful
not -to propose in his resolution that the opinions would bind the executive.
It was, he noted, explicitly declared that the decision was only for the informa-
tion of the government. The executive was not released from all responsibility
by the Court’s reply. It was possible that the government would not approve
of this decision, and it would be its duty not to approve if it did not accept the
conclusion of the Court.14
While it is to be hoped that federal cabinets will show the fortitude expected
of them by Sir John Macdonald, the danger of abuse of the reference power
remains.
iii. Constitutional references –
education.
Similar problems arise with regard to the appellate jurisdiction of the
federal executive in educational matters under s. 93 of the British North
America Act, for, in view of the impending storm in Manitoba, it was also
Blake’s aim in submitting his resolution of 1890 to have the reference power
employed in such matters. The arguments he employed were similar to those
he used in discussing disallowance. What was the procedure to be followed,
he asked, when an educational appeal came before the federal executive?
First, it was necessary to determine whether any class of persons had, in
virtue of the law or practice at the Union, any right or privilege pertaining
to denominational schools, and if so, what was the right. Secondly, it was
necessary to determine if a right or privilege had been affected and how
by the provincial legislation complained of, and, finally, to determine what
to repair any harm done. The first two
legislative action was necessary
questions, Blake stressed, were legal and not political. 15
The objection to the executive alone deciding the questions that arose in
the case of disallowance was also applicable here. The following passage
certainly applied to both:
Mr. Aberhart refused. Six days later, August 17th, the Acts were formally disallowed.”
“Canada and Alberta: The Revival of Dominion Control over the Provinces,” p. 104.
Reprinted from Politica, June, 1939, Vol. IV, No. 16.
14 Debates, House of Commons, Canada, 1890, Vol. II, 4093-94.
‘ 5While Blake considered these questions “legal” as opposed to “political” he saw
that these legal questions were actually mixed questions of law and fact. It was for
this reason that the words “or fact” were inserted into the resolution. Blake discussed
the educational aspect in the speech in which he considered the disallowance question.
Debates, House of Commons, Canada, 1890, Vol. II. 4084-93.
McGILL LAW JOURNAL
[ Vol. 6
the
Ours is a popular government; and when burning questions arise, inflaming
public mind, when agitation is rife as to the political action of the Executive or
the Legislature – when action is to be based on legal questions, obviously beyond
the grasp of the people at large; when the people are on such questions divided by
cries of creed and race; then I maintain that a great public good is attainable
by the submission of such legal questions to legal tribunals with all the customary
securities for a sound judgment; and whose decisions –
passionless and dignified,
accepted by each of us as binding in our own affairs involving fortune, freedom,
honour, life itself — are more likely to be accepted by us all in questions of
public concern.
/
The reference power was employed by the Federal Cabinet in the Manitoba
Educaiion Reference, in 1894,1″ but Blake’s hopes that this would significantly
reduce controversy were not realized.11
iv. Other references.
Other special motives for the use of the federal reference power are to, be
found in the desire of the federal executive for information regarding treaties
and other questions touching Canada’s relations with foreign powers
too
important to wait until they come up” in a concrete case,18 and also in the
great need for swift judicial clarification of issues at the highest level in the
midst of a war emergency. 19
References have also been used by both the federal and provincial executives
simply for assistance in the administration of the federal or provincial laws.
This practice is found more often in provincial references, 20 but there is no
apparent reason why this should be so. Perhaps it is because provincial boards
and agencies are not often empowered to “state a case” for the courts in
the manner of the Federal Board of Transport Commissioners. Federal
references are also used to aid in settling disputes arising from Dominion-
Provincial agreements and arrangements. 21
16(1894), 22 S.C.R. 577.
17For cases
in which the disallowance power was
involved see: Reference re
(1922), 63 S.C.R. 2993; Reference re The Manitoba Act,
Employment of Aliens,
[1924] S.C.R. 317; Reference re Disallowance, [1938] S.C.R. 71; Reference re Alberta
Securities, [1938] S.C.R. 100; Reference rc Alberta Railw’ay Act, (1913), 48 S.C.R. 9.
‘sSupra, footnote 9. Also, Reference re U.S. Forces, [1943] S.C.R. 483.
‘ 9 Rcference re Validity of the Chemical Regulations, [19431 S.C.R. 1.
20 ‘provincial references: Reference re Ontario Medical Act,
(1907),
13 O.L.R.
23 O.L.R. 238; Reference re Liquor
501; Reference re Bread Sales Act, (1911),
Licence Act, (1913-14), 29 O.L.R. 475; Reference re Sessional Allowances, [19451
2 D.L.R. 631 (Ont.) ; Reference re Power .f 31runicipal
‘,,uncil, (1957), 7 D.L.R.
(2nd) 222 (Ont.) ; Re Trades Union Act, [1945] 2 D.L.R. 163 (N.S.) ; Re Labour Act,
[19481 2 D.L.R. 428 (Alta.) ; Reference re Jury Act, [19461 3 D.L.R. 457 (lta.) ; Refer-
ence re Relief Liability Act, [1938] 4 D.L.R. 646 (Alta.) ; Ref erence re Charter of City
of Vancouver, 11946] 1 D.L.R. 638; Federal references: Reference re Validity and
Applicability of Industrial Relations and Disputes Investigation Act (Can),
[1955]
S.C.R. 529; Reference re Adoplion Act (Ont.) et al; [1938] S.C.R. 398; Reference re
Jurisdiction of Tariff Board of Canada, [1934] S.C.R. 538.
2 1Reference re Saskatchewan Natural Resources, [19311 S.C.R. 263; Reference re
Troops in Cape Breton, [1930] S.C.R. 554.
No. 3]
REFERENCE CASES
THE EFFECT OF REFERENCES
i. Binding?
Do opinions given on a refrence bind the judges rendering them, the
executive asking them, or anyone else? The proper legal answer must be that
they do not. But what happens in practice is, as we shall see, quite a different
matter.
The original federal reference provision, s. 52 of the, Supreme Court Act,
1875, did not expressly state that the opinions rendered were to be advisory
only, but the Federal Minister of Justice, in introducing the Act to the
Commons in 1875 stated that the decision rendered by the Court would not
have the character of a judgment but would merely have its moral weight
in assisting the government to arrive at a determination. 22 This was entirely
in accord with English precedent.
Over a decade later, in 1889, another Minister of Justice, Sir John Thompson,
wrote:
Indeed, there seems much reason to doubt . .
. that the decision of the Supreme
Court on a reference would be binding on any parties or on any interests involved.
It would simply advise (the Governor in CounGil) as to the opinions entertained
by the members of the Court. The precedents in Canada are like those in Great
Britain.m
The 1891 amendment to the Supreme Court Act expressly declared that the
opinions were to be “advisory only” and this view was reiterated by Sir John
Thompson in the Commons.2 4
The matter was first taken up judicially in the Manitoba Education Refer-
ence2 5 when Taschereau J. declared emphatically that
. .
. our answers to the questions submitted will bind no one, not even those
who put them, nay, not even those who give them, no court of justice, not even
this court. We give no judgment, we determine nothing, we end no controversy,
and whatever our answers may be, should it be deemed expedient at any time
by [an interested party] to impugn the constitutionality of any measure that might
hereinafter be taken by the federal authorities .
. whether such measure is in
accordance with or in opposition to, the answers to this consultation, the recourse in
the usual way, to the courts of the country remains open to them.2 5
.
2 2 Debates, House of Commons, Canada, 1875, Vol. I, 286.
23(1889), 12 L.N. 284. Of course this was the strict legal view. Sir John was aware
of other possibilities.
24 Debates, House of Commons, Canada,
(1891), 3587. The words “advisory only”
remained in the reference provisions of the Supreme Court Act until 1956 when the
subsection containing them was repealed by 4-5 Eliz. II c. 48, s. 7. The repeal has
no effect upon the character of the opinions rendered. The words “advisory only”
were inserted in the first place, as a precaution only, to underline that although the
opinions were to be regarded as a final judgment for purposes of appeal to the Privy
Council, they were only advisory for purposes of not binding the executive or the
Supreme Court in future cases. As far as the words “advisory only” were concerned,
s. 55 ss. 6 was simply declaratory. The original s. 52- did not contain the words
“advisory only” yet the opinions rendered under it were, as we have seen, so regarded.
25(1894), 22 S.C.RL 577 at p. 678.
McGILL LAW JOURNAL
[Vol. 6
Provincial references were regarded in the same manner. The words “although
advisory only” were not to be found in the Ontario reference statute, observed
Moss C.J.O. in Re Ontario Medical Act,2 6 but their insertion was scarcely
necessary as all the other provisions of the statute went to show that the opinion
given was only for the information of the Lieutenant Governor in Council.27
These views contiiued to be emphasized up to 1912. In Re Criminal Code,28
nearly every judge stressed the non-binding, advisory nature of the opinions.
As Girouard J. put it:
. our advice has no legal effect, does not affect the rights of parties nor
the provincial decisions, and is not even binding upon us.29
Shortly afterwards, in Re References by the Governor in Council,3″ Fitz-
patrick C.J. expressed his-adherence to the “advisory only” view and the other
justices reiterated their views. Anglin J. was especially’emphatic. The words
“advisory only” in the Supreme Court Act, he declared, denuded a reference
opinion of all the marks of a judgment of the Court leaving the Court itself
and every other court throughout Canada –
free to disregard it.
inferior as well as superior –
This period also saw the approval of the “advisory only” doctrine by the
Judicial Committee of the Privy Council in Attorney-General for Ontario v.
Attorney-General for Canadal and. one of the very rare applications of this
doctrine in practice in Kerley v. London and Lake Erie Transportation Co.”12
In the former, Lord Loreburn agreed that the answers given by the Supreme
Court were “only advisory” and would have “no more effect than the opiniins
of law officers.” 33 In the latter, an Ontario “concrete case”, the judge referred
to one of the answers given by the Supreme Court in the 1905 Sunday Labour
Reference which seemed to be relevant to the point before him. “With all
proper deference to the Judges of the Supreme Court,” lie said, “I cannot
regard the opinion expressed on this head as a judgment binding on me, nor
can I accept it as the law.”13 4
26(1907), 13 O.L.R. 501 at p. 507. The words were subsequently
17A few years earlier, Osler J. A. reserved the right to arrive at a different opinion
upon all or any of the questions he hao answered. Reference re Lords Day Act of
Ontario, (1902), 1 O.W.R. 312 at p. 31F.
inserted.
2s(1910), 43 S.C.R. 434.
2Mbid., at p. 436. See also Davies J. at p. 437- Duff J. at pp. 451. 453: Anglini
at .p 454. Indington J. did not mention the matter btit certainly shared their view.
‘o(1910), 43 S.C.R. 536 at p. 592. See a1so Refcrcnce re Provincial Fisheries. (1896-9,-.,
-.
26 S.C.R. 444 at p. 539.
31[1912] A.C. 571.
32(1912), 6 D.L.R. 189, (Ont.).
33[1912] A.C. 571 at p. 589.
34(1912), 6 D.L.R. 189 at p. 197. The Sunday Labour Reference is at (1905), 35
S.C.R. 581. See also Reference re Bread Sales Act, (1911), 23 O.L.R. 238 at p. 241.
No. 3]
REFERENCE CASES
After 1912 virtually nothing more is heard of the “advisory only” approach85
and in practice the opinions rendered were regarded as binding. Even before
1912 there were phrases uttered judicially and action taken judicially which
indicated that judicial practice was going to be quite different than that sugges-
ted by the words “advisory only.”
In The King v. Brinkley,”8 Maclaren J.A. was confronted with the argument
that the opinions of the judges of the Supreme Court in an earlier federal
reference 7 touching substantially the same question as was now before him
was not binding upon him. Maclaren J.A. proceeded to cite the remarks of
Taschereau J. in the Manitoba Education 37a and Provincial Fisheries3 Mb
references to which we have earlier referred. He noted that -the opinions and
answers in the Fisheries Reference were subsequently cited as authorities in an
opinion, concurred in by a majority of the judges in a subsequent reference3 8
Moreover, -he continued,
in Attorney-General for Manitoba v. Manitoba
License Holders’ Association, 9 Lord MacNaghten, delivering the judgment
of the Board, referred several times to the opinion of the Board in the Local
Prohibition Reference4 as a “decision” and as “the judgment of this Board”,
and as having settled and removed objections that were raised to the legisla-
tion in the case in question. In the Representation in the House of Commons
Reference,41 the opinions of the Supreme Court were also referred to as
“decisions” in the Privy Council’s opinion.
The question of the binding effect of references was never raised by counsel
during their arguments on constitutional questions during
the nineteen-
twenties and it was natural for the courts to sink deeper into the habit, pointed
out in The King v. Brinkley, of regarding opinions earlier rendered as binding.
An illustration of this habit is found in the Aeronautics Reference45 wlien
it came before the Privy Council. Delivering the judgment of the Board, Lord
Sankey recognized that there had grown up around the British North America
Act “a body of precedents of high authority and value as guides to its inter-
pretation and application.” He pointed to four cases where the “essential task
of taking stock of this body of authority and reviewing it in relation to its
original text” had been performed. Three of the four cases to which Lord
BiSee, however, Reference re Bills of Sale Act et al., [1927] 2 D.L.R. 50 at p. 56.
36(1907), 14 O.L.R. 434.
37Reference re Criminal Code Sections Relating to Bigamy, (1897), 27 S.C.R. 461.
3TaSupra, footnote 16.
WTbSupra, footnote 30.
8SReference re International and Interprozincial Ferries, (1905), 36 S.C.R. 206 at
pp. 217-18.
89[1902] A.C. 73.
40[1896] A.C. 348.
41[1905] A.C. 37, at p. 43.
4211932] A.C. 54.
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Sankey attached such importance were references.43 Finally, his Lordship
pointed to still another reference, Attorney-General for Canada v. Attorney-
General for British ColuMbia44 as having “laid down” four propositions relative
to the legislative competence of Canada and
the provinces respectively as
“established” by the “decisions” of the Judicial Committee. Two of the four
cases cited by the Board in establishing the propositions are references.45
Further illustratiofis are to be found in the Natural Products Marketing
Act Reference,4 6 where Duff C.J. cited a group of cases including a reference
as “binding” upon the Supreme Court, and the Labour Conventions Reference,47
where Rinfret J. referred to the Hours of Labour Referenre#a of 1925 and
declared that “the opinion then given may be regarded as binding upon this
Court.”
How far the habit of regarding opinions rendered on references as true
judgments had gone by 1942 is strikingly illustrated by the Legal Proceedings
Suspension Act Reference,48 an Alberta reference. The circumstances surround-
ing the reference are worth going into in some detail. The Alberta Debt Ad-
justment Act of 1937 enacted, generally speaking, that no action should be
commenced or continued in -the Province of Alberta in respect of any debt
or liquidated demand unless a permit to do so had first been procured from
the Debt Adjustment Board. The Supreme Court of Canada, on a reference
by the Governor in Council, declared the Debt Adjustment Act ultra vires,
whereupon the Alberta Legislature enacted the Legal Proceedings Suspension
Act of 1942, providing that all actions then or thereafter commenced which
involved the applicability of the Debt Adjustment Act (excepting those in
which no permit was required under the Debt Adjustment Act, or in which a
permit was granted) should be stayed until sbity days after the determination
of an application for leave to appeal to the Privy Council from -the opinion of
the Supreme Court of Canada, or, if leave was granted, from the determination
of the appeal 9 The Legal Proceedings Suspension Act was then referred by
4 3Attorney-General for Ontario v. Attorney-General for Canada, [1896] A.C. 348;
Attorney-General for Canada v. Attorneys-General for Ontario, Quebec and Nova
Scotia, [1898] A.C. 700; Attarney-General for Ontario v. Attorney-General for
Canada, 11912] A.C. 571.
44[1930] A.C. 111 at p. 118.
45Attorney-General for Ontario v. Attorney-General for Canada, [1894] A.C. 189;
Attorney-General for Ontario v. Attorney General for Canada, [1896] A.C. 348.
46The reference was Attorney-General for Canada v. Attorney-General for Alberta,
[1916] 1 A.C. 588. See [1936] S.C.R. 398 at pp. 404-05.
47[1936] S.C.R. 461 at p. 507.
47aSupra, footnote 9.
48[1942] 3 D.L.R. 318.
49This statement of the background is taken virtually verbatim from
the report
on the Legal Proceedings Suspension Act Reference [1942] 3 D.L.R. 318. For the
report of the Supreme Court decision declaring the Debt Adjustment Act ultra vires
see [1942] S.C.R. 31.
No. 31
REFERENCE CASES
the Lieutenant Governor in Council of Alberta to the Alberta Supreme Court
where it was held to be ultra vires.
Harvey CJ.A. observed that the stay granted by the Act and the barring
of actions for debts, was not for a definite but for an indefinite period which,
if there were no attempt to appeal to the Privy Council, would never end. He
continued:
For the period of the stay this is a complete setting at nought of the judgment
is not without significance that the
of the Supreme Court of Canada and it
period of the stay is not limited to the time involved in obtaining the decision
of the Judicial Committee, but is for a further period of sixty day .
.50
.
The whole affair shows how seriously a reference “opinion” was regarded.
The Alberta Legislature seemed to take it for granted that the opinion of the
Supreme Court of Canada was much more than “advisory only” and that
unless it was overruled by the Privy Council, the Debt Adjustment Act and
the debtors’ protection under it were at an end. Thus, new legislation was
necessary to assist debtors. The Alberta Supreme Court took the “opinion”e
with equal seriousness. Like the Legislature, it assumed that the pre-Debt
Adjustment Act situation between creditors and debtors had been
re-
established by the Canadian Supreme Court opinion and felt it necessary to
strike down the Legal Proceedings Suspension Act to protect the post-opinion
position of the creditors.
It was no longer possible to speak of “unconscious habit” after the bold
pronouncement of Rinfret J. in 1945 in Attorney-General of Canada v. Higie
et at. and the Attorney-General for British Columbia. a One of the points at
issue was the interpretation to be given to the opinion of Newcombe J. in the
earlier Saskatchewan Natural Resources Reference.5 ‘
Rinfret J. had no doubts:
.
.52
It is needless to mention here that, although this was not a judgment in the true
sense of the word, but merely what is sometimes referred to as an opinion made
in Reference to this Court by the Governor General in Council as provided for
by section 55 of the Supreme Court Act and the special jurisdiction therein given
to this Court, we should regard an opinion of that kind as binding upon this
Court .
All the more startling, then, after these words, was the course taken by
the Supreme Court in 1957 in C.P.R. v. Town of Estevan et al.52 a Here the
Court was faced, among other problems, with the question of what effect to
give to opinions rendered by it and the Judicial Committee upon an earlier
reference under the Saskatchewan Constitutional Questions Actm which had
50[1942] 3 D.L.R. 318 at p. 320. Author’s italics.
0a[1945] S.C.R. 385.
u1[1931] S.C.R. 263.
52[1945] S.C.R. 385 at p. 403.
52a[1957] S.C.R. 365.
53R.S.S. 1953, c. 78.
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come before -them on appeal. 54 Locke J., speaking for the other judges on this
point, held that the Supreme Court and Judicial Committee were not binding
as between the parties to this present case, insofar as a particular point was
concerned. The matter, he declared,
. . . was not rendered res judicata as between the parties to this litigation by
the decision of this Court upon the [earlier] reference, or by the judgment of the
. . upon .. .questions involved in that reference. In so far
Judicial Committee..
as the defendant municipalities are concerned, they were not parties to and were
not heard upon the reference and, in so far as the present appellant is concerned,
even though it was represented [at all stagesj … I think it is not bound either by
the opinions expressed by the Judicial Committee or by this Court. In this respect,
matters referred to the Court of Appeal for Saskatchewan under The Constitutional
. . do not differ from references to this Court
Questions Act of that Province
under what is now s. 55 of the Supreme Court Act, R.S.C. 1952, c. 259. 55
What is one to make of all this? Theoretically, in law, reference opinions are
“advisory only” –
no doubt about that. But in practice they are treated with
the respect due to judgments. One is reminded of the words of Lord Simon
in Attorney-General for Ontario v. Canada Temperance FederatiorO8 where,
speaking in a somewhat different connection, he said:
Their Lordships do not doubt that in tendering humble advice to His Majesty
they are not absolutely bound by previous decisions of the Board. . . . But on
constitutional questions it must be seldom
indeed that the Board would depart
from a previous decision which it may be assumed will have been acted on by
governments and subjects. 56
This seems to sum up the position of the courts on the binding effect of refer-
ence. The forceful pronouncements of earlier days that references were only
advisory and the holding in C.P.R. v. Town of Estevan et al. must be taken
together with the facts that the pronouncements were all made in cases where
there was no need or opportunity to put them into actual effect and that there
is not one recorded instance since 1891, with the exception of the Kerley case,”a
where opinions rendered on either federal or provincial references were repud-
iated in a subsequent reference or concrete case. It is interesting that even in
C.P.R. v. Town of Estevan et al. Locke J., having uttered the words quoted
above, went on, nevertheless,
to declare his agreement with the opinions
rendered on the earlier reference, and so the necessity for actual repudiation
did not arise.
i. Useful?
The usefulness of reference cases has long been in issue in the courts. We
have seen in the remarks of Maule J. in M’Naghten’s caseu6b the difficulties
54Reference re Taxation of C.P.R. [1949] 2 D.L.R. 240; C.P.R. v. Attorney-General
for Saskatchewan, [1951] S.C.R. 190; Attorney-General for Saskatchewan v. CP.R.,
[1953] A.C. 594.
55[1957] S.C.R. 365 at pp. 368-69; Duff J’s remarks in Reference re Criminal Code,
(1910), 43 S.C.R. 434 at p. 451 and in Re References by the Governor General in
Council, (1910), 43 S.C.R. 536 at p. 588 were cited for support.
56[1946] A.C. 193 at p. 206.
SNaSupra, footnote 32.
56blO Cl. & F. 200.
No. 3]
REFERENCE CASES
experienced by English judges in preparing a satisfactory reply. The remarks
of Lord Chief Justice Tindal in the same case, put the point with even greater
effect. The judges, he declared, had
involved in the answers given by them
. foreborne entering into any particular discussion upon these questions from
the extreme and almost insuperable difficulty of applying those answers to cases in
which the facts are not brought judicially before them. The facts of each particular
case must of necessity present themselves with endless variety, and with every
shade of difference in each case; and as it is their duty to declare the law upon
each particular case, on facts proved before them, and after hearing argument
of counsel thereon: they deem it at once impractical and at the same time dangerous
to the administration of justice, if it. were practicable, to attempt to make minute
to your
applications of the principles
Lordships’ questions.57
Similar sentiments have frequently been voiced in Canadian courts and in
the Privy Council with regard to Canadian references.57a In the Local Pro-
hibition Reference, Lord Watson criticized the six general questions as
“academic” rather than “judicial” and as “better fitted for the consideration
of the officers of the Crown than of a court of law.” The replies to them must
necessarily, he said, depend upon the circumstances in which they might arise
for decision and the circumstances were, in this case, left to speculation. 58 A
much harsher criticism of questions submitted was voiced by the Board in
Attorney-General for Ontario v. Hamilton Street Railway, 59 again directed
against the general questions in a mixed submission. They were questions,
the Board declared, proper to be considered in concrete cases only and opinions
expressed upon them would be worthless “as being speculative opinions on
hypothetical questions.” Similar remarks had earlier been made in the Ontario
Court of Appeal when the same questions were being considered there, 60
while in 1905 the Supreme Court of Canada declined to answer a question
dealing with specific pieces of legislation on the grounds that useful or satis-
factory answers could only be given to them when they arose in concrete
cases. 6′
5l7bid., at p. 208.
V7aAtto-rsey-General for British Columbia v. Attorney-General for Canada, [1914]
A.C. 153 at p. 162; Reference re Alberta Railway Act, (1914), 48 S.C.R. 9 at p. 25;
Attorney-General for Ontario v. Attorney-General for Canada, [1916] 1 A.C.
598; Hirsch v. Protestant Board of School Commissioners, [1928] A.C. 200
at p. 215; Re Waters and Water Powers, [1929] S.C.R. 200 at pp. 226, 227; Re Bills
of Sale Act et at, [1927] 2 D.L.R. 50 at p. 52; Reference re Alberta Debt Adjustment
Act, [1942] S.C.R. 31 at p. 52; Aeronautics Reference, [1932] A.C. 54 at p. 66;
Companies Reference, (1914), 48 S.C.R. 331 at p. 359.
58[1896] A.C. 348 at p. 370.
59[1903] A.C. 524 at p. 529.
60[1902] O.W.R. 312 at pp. 314, 315, 316.
68 Reference re Legislation Respecting Abstention from Labour on Sunday, (1905),
35 S.C.R. 581 at p. 591. See also Reference re Ontario Medical Act, (1907), 13 O.L.R.
501 at pp. 507-9 and Reference re Bread Saler Act, (1911), 23 O.L.R. 238 at p. 240.
McGILL LAW JOURNAL
[Vol. 6
the Supreme Court
In John Deere Plow Co. Ltd. v. WhartoX6sa Lord Haldane referred to the
attempts made by
the Companies Reference,
them by the submission. In Lord
to carry out the task imposed upon
Haldane’s view, the task had been an impossible one, owing, he said, to the
abstract character of the questions put. Earlier in the judgment he delivered a
caution on the use of reference cases in constitutional matters:
in
The structure of ss. 91 and 92, and the degree to which the connotation of the
expressions used overlaps, render it, in their Lordships’ opinion, unwise… to attempt
exhaustive definitions of the meaning and scope of these expressions . . . It is in
many cases only by confining decisions to concrete questions which have actually
arisen in circumstances the whole of which are before the tribunal that injustice
to future suitors can be avoided ….
it is the wise course to’ decide each case which
arises without entering more largely upon an interpretation of the statute than
is necessary for the decision of the particular question in hand.
.. It must be borne
in mind in construing the two sections that matters which in a special aspect and
for a particular purpose may fall within one of them, may in a different aspect and
for a different purpose fall within the other. In such cases, the nature and scope of
the legislative attempt of the Dominion or the Province, as the case may be,
have to be examined with reference to the actual facts if it is to be possible to
determine under which set of powers it falls in substance and in reality.:
These words, taken together with the fact that the reference power has
been very frequently employed by federal and provincial executives to de-
termine the division of legislative jurisdiction, raise the further question as to
what effect this use of references has had on the interpretation of those sections.
In particular, have references contributed noticeably to the marked judicial
diminution of the scope of federal legislative jurisdiction from that envisaged
by the Fathers of Confederation and the text of the British North America
Act?
Some writers maintain that they have. Jennings” hints at such a connection.
Others are -more explicit. Clokie” states, “Judicial nullification of Dominion
legislation began in the field of advisory opinions” and sees significance in the
fact that they were favoured by Blake, “a ‘provincial rights’ man.” Mac-
donald 5 considers it “not without point” to observe that the Privy Council’s
contribution to the elucidation of the Canadian Constitution has been made
in reference cases where the realities of Canadian life and problems were not
presented in the way that they might have been in concrete cases. Other
sa[1915] A.C. 330.
62Ibid., at pp. 338-39.
63Jennings, W. Ivor, Constitutional
(1937), 51 Harvard L. R. 1, at p. 12.
64Clokie, H. McD., Judicial Review, Federalism and the Canadian Constitution,
(1942), 8 Canadian Journal of Economics and Political Science 537, at p. 543. Paren-
in the matter of
thetically, it seems grossly unfair to speak of “judicial pretensions”
advisory opinions, as Clokie does, considering the long history of judicial resistance to
the use of the reference power on grounds that references were of limited value, unethical
and unconstitutional.
Interpretation: The Experience of Canada,
65Macdonald, Vincent C., The Privy Council and the Canadian Constitution, (1951),
29 Can. Bar Rev. 1021, at p. 1028.
No. 3 ]
REFERENCE CASES
writers 66 have, in effect, come to the same conclusion. Echoing many of the
judicial objections to references, they stress the absence of a factual, “real-
life” background in the questions submitted and the consequent unreality of
many of the opinions rendered.”
Davison,6 7 examining the Bennett New Deal references finds the factual
background “necessarily meagre.” In economic terms he notes the Employment
and Social Insurance Act Reference where counsel for Canada presented
statistics relating to unemployment and unemployment expenditures for the
period 1930-35 which were analyzed in the arguments of provincial counsel
before the Judicial Committee, but not, be it noted, in the opinion itself.68
He is especially critical of the key Natural Products Marketing Act Reference
where neither the arguments nor opinion scrutinize factual material.6 9 The
upholding of virtually the entire Dominion Trade and Industry Commission
Act7″ he regards as miraculous.
LaBriel t stresses that many important considerations relevant -to a deter-
mination of pith and substance can only be determined from the form of the
legislation considered along with the circumstances which surround its enact-
ment and operation and that even where fully drafted legislation is referred
to a court, it would be difficult to prove the implications that might arise
from its enactment. Labrie is also critical of confining the courts to facts set
out in the order of reference. But the examples he cites, while interesting, are
inconclusive in terms of our present discussion, namely, the federal-provincial
conflict over legislative jurisdictionTh
The critics are surely right in suggesting that there is some relationship
between the use of references and the trend of judicial interpretation, but the
extent of that relationship is not easy to determine. The very lack of concrete
cases with which the references might be compared makes the task of measur-
ing their influence itself rather abstract and hypothetical. Those concrete cases
66Freund, Paul A., A Supreme Court in a Federation: Some Lessons from Legal
History, (1953), 53 Columbia L. R. 597, at p. 613.
67Davison, J. F., The Constitutionality and Utility of Advisory Opinions, (1937-38),
2 University of Toronto L. J. 254, at pp. 275-76.
68[1937] A.C. 355 at p. 359 for the statistics. See [1936] S.C.R. 427 at p. 451 where
the “emergency” question is touched on. The arguments of counsel before the Supreme
Court were not reported.
09[1936] S.C.R. 398; [1937] A.C. 377.
70[19361 S.C.R. 379;
[1937] A.C. 405.
T 1LaBrie, F. E., Constitutional Interpretation and Legislative Review,
8 University of Toronto L. J. 298, at p. 347.
r3 The Alberta Statutes Reference
[1939] A.C. 117; went against
the province.
The Margarine Reference [1951] A.C. 179; went against the Dominion. The Canada
Temperance Act Reference, [1939] O.R. 570, and the Leasehold Regulations Reference,
[1950] S.C.R. 124 saw the confinement to the terms of reference work in favour of
the Dominion with regard to the continuance of an emergency. But it is easy to
conceive of situations where the reverse could be true.
(1950),
McGILL LAW JOURNAL
[Vol. 6
that did arise seem inconclusive. There is a Russell’s case” but there is a
Snider’s case.7 5 The companies cases78 may be significant, but afford no firm
basis for conclusions. A statement which purported to reduce “The Regulation
of Trade and Commerce” to the same degree of weakness as the federal resid-
uary power 7 was made in a concrete case.78 The “emergency” doctrine was
expounded in still another concrete case.”9 Conversely, a number of important
references have gone in favour of the Dominion.80
The Aeronautics Reference and the Canada Temperance Act Reference
suggest that what may be equally important is the approach of the judges. If
they are prepared, as Lord Sankey urged, to treat the British North America
Act as a “living tree, capable of growth”,81 to eschew narrow canons of
interpretation8 2 and slavish adherence to stare decisis,s 3 the form in which the
case comes -before them will not be an insuperable obstacle to a decision based
upon the text of the Act and the realities of Canadian life.
74(1882), 7 A.C. 829.
75[1925] A.C. 396.
7″8 ohn Deere Plow Co. v. Wharton, [1915] A.C. 330; Great West Saddlery Co. v.
The King, [1921] 2 A.C. 91. Lord Haldane was driven in these cases to “peace, order
and good government” for the incorporation of companies with Dominion objects.
“”Attorney-General for Ontario v. Attorney-General for Canada, [1896] A.C. 348.
7SCity of Montreal v’. Montreal Street Railway, [1912] A.C. 333 at p. 344.
“9Fort Frances Pulp and Paper Co. v. Manitoba Free Press Co., [1923] A.C. 695.
SOThe Aeronautics Reference, [1932] A.C. 54; the Radio Reference, [19321 A.C. 304;
the Alberta Statutes Reference, [1939] A.C. 117, the Canada Temperance Act Reference,
[1946] A.C. 193. See also Reference re Prohibitory Liquor Laws (1895), 24 S.C.R.
170, where the Supreme Court held in favour of the Dominion, the same result, be it
noted, that it reached with a somewhat differently composed court in the concrete
case of Huson v. Township of South Norwich (1895), 24 S.C.R. 145. The Supreme
Court was overruled in Attorney-General for Ontario v. Attorney-General for Canada,
[1896] A.C. 348.
81The “living tree” metaphor was employed
in Edwards v. Attorney-General for
Canada, [1930] A.C. 124, a reference, but one not involving the question of legislative
jurisdiction. It is possible to discern much of the same approach
in Lord Sankey’s
opinion in the Aeronautics Reference, particularly in his “sixty colours” analogy and
his statement that aeronautics had attained such dimensions as to affect the body
politic of the Dominion. This is not, of course, to ignore the note played by s. 132
in the case.
82Three canons that proved particularly disastrous to the scope of federal jurisdiction
were, first, that the Act was to be interpreted like an ordinary statute, Bank of Toronto
v. Lambe, (1887), 12 A.C. 575 (a concrete case), that the specific inclusion of Banking
in s. 91 excluded other particular trades, Citizen’s Insurance Co. v. Parsons, (1881),
7 A.C. 96 (a concrete case) and that regulation did not include prohibition, Attorney-
General for Ontario v. Attorney-General for Canada, [1896] A.C. 348 (a reference).
Also with regard to the attitude of the judges, see E. R. Richard, Peace, Order
(1940), 18 Can. Bar Rev. 243 at pp. 256-58 where evidence
and Good Government,
is offered that the Act was deliberately twisted in favour of the provinces by Lord
Watson for reasons of policy.
mSee Jennings, op. cit., pp. 37-38.
No. 3]
REFERENCE CASES
There are, of course, other factors to be weighed in considering the
usefulness of reference cases besides those we have touched upon. In partic-
ular, references have been forwarded as a technique for determining important
legal questions speedily and without expense to private litigants. Blake, during
the discussion of his resolution of 189084 cited Bryce’s exposition of the dis-
advantages which resulted from the absence of reference provisions in the
United States. An immediate and final decision, wrote Bryce, of a contested
point of constitutional law would often be of benefit both to the citizen indivi-
dually and to the various organs of government. As things actually stood, no
one knew with certainty when, if ever, a point of this type would be decided.
No one liked incurring the cost and effort necessary to bring it before the
courts and the case might be ended by a settlement or dropped entirely. If it
did happen that, after many years, it came before the Supreme Court and was
decided, it might be that the decision would differ from that which lawyers in
general had foreseen, that it would modify what was thought to have been’ the
law and that it would ruin private interests based on opinions that this deci-
sion now declared to be unfounded.8 5
To these arguments might be added the special necessity for speedy de-
termination of questions relating to war emergencies and Canada’s relations
with foreign powers.”6 On the other hand, as we have seen with regard to
disallowance, there is the possibility that reference will be abused by the ex-
ecutive. This leads us to our next major area, the ethics of references.
iii. Ethical?
The judges have objected to the submission of references from an ethical
viewpoint because, they argued, references affect private rights without af-
fording parties affected an opportunity to be heard and because, though theor-
etically merely advisory, opinions rendered are bound to embarrass the ad-
ministration of justice when the subject of an earlier reference is brought
before the courts on a later occasion by genuine litigants.
In 1898, the Privy Council, in an important constitutional reference, made
its position known on this question in a pronouncement that has often been
judicially cited. Delivering the opinion of the Board, Lord Herschell declared:
Their Lordships must decline to answer the last question submitted as to the
rights of riparian proprietors. These proprietors are not parties to this litigation
or represented before their Lordships, and accordingly
their Lordships do not
think it proper when determining the respective rights and jurisdictions of the
Dominion and Provincial Legislatures to express an opinion upon the extent of
the rights possessed by riparian proprietors. 8 7
8 4Debates, House of Commons, Canada, (1890), Vol. 2, 4084-93.
8 5 These views have been echoed but rarely in the courts, where there has been
much hostility to the use of references. But see Re References, (1910), 43 S.C.R. 536
at p. 587 and Reference Re Local Option Act, (1890-91), 18 O.A.R. 572 at pp. 584-85.
86Reference re Chemical Regulations, [1943] S.C.R. 1.
8 7Attorney-General for Canada v. Attorneys-General for Ontario, Quebec and Nova
Scotia, [1898] A.C. 700 at p. 717.
McGILL LAW JOURNAL
[ Vol. 6
In Re References”8 Idington J. considered
the question from its second
aspect; embarrassment of the administration of justice. What would be the
thought of a judge, he asked, who had expressed to a private litigant an opinion
more or less deliberate upon luestions the answers to which determin ed that
litigant’s rights and who had afterwards sat in that litigant’s case and judged
it? Was there not involved in the very essence of what was attempted the
taking away of men’s rights and liberties without due process of law?
But it was in the Marriage Laws Reference”9
that the private rights
question received the fullest discussion. There, counsel for Quebec, citing the
to the Supreme Court
views of Lord Herschell as quoted above objected
answering one of the questions on grounds that it was a question which affected
private rights and private interests which were not represented before the
Court. The question was whether the law of Quebec rendered null and void,
unless contracted before a Roman Catholic priest, marriages between persons
of certain religious faiths. In the view of counsel for Quebec a question could
hardly be submitted which involved more private rights than this one. It
involved a declaration which would not only cause disturbance, but would
put the ban of absolute nullity upon scores of marriages of persons who were
not represented before the Court. It was well and good to say that the opinion
rendered would be only advisory, yet if the opinion favoured nullity, it would
affect the name and fame and standing of every person married under the
conditions set forth in the question as well as that of the children,
Counsel for Canada took up this argument in reply and pointed out that
the same was true of every case that was heard in the Court. Interests which
were not represented and could not be represented were affected and determined
as much in ordinary cases as in any reference. Moreover, there was a public
interest in having the answers which outweighed the private interest.90
Fitzpatrick C.J., Idington and Anglin JJ. agreed with counsel for Quebec
that the question was improper.9′ Idington J. was very bitter:
As to the objections strongly pressed by counsel for Quebec that we should not
. in a recent reference I assumed that private rights
answer the second question .
. . The Judicial
might be touched and urged all I could in the same direction .
Committee’s judgment indicates such objections were hardly worthy of notice …
I admit this case involves .
of interrogating judge.
of trial by the process of law.92
imperils private rights in a way that seems to deprive those concerned
It …
.
.
. what I had conceived to be the vicious principle
88(1910), 43 S.C.R. 536 at pp. 573, 583. It seems clear here that what Idington J.
means by due process is simply an ordinary trial not the technical meaning of the
American term.
89[1912] 46 S.C.R. 132 at p. 289.
9Olbid., at pp. 308-09.
91Ibid., at pp. 336, 421-22.
$21bid., at p. 395.
No. 3]
REFERENCE CASES
A very recent echo of the private rights controversy wag heard in Attorney-
General of Canada v. C.P.R. and C.N.R.93 where Rand J., delivering the
judgment of Kerwin C.J. and Taschereau, Cartwright and Fauteux JJ.,
objected to answering three of the questions on grounds that
the application of which
we would be expressing an opinion that might seriously affect private rights
in the absence of those claiming them, a step which would be contrary to the
fundamental conception of due process,
to opinions
of this nature has long been recognized. 94
These remarks show that the private rights question is by no means closed.
They also, when taken together with the other cases considered, suggest a
criterion used in evaluating a “private rights” complaint, namely, that where
the questions, although part of a larger constitutional reference directly touch
private interests, as in Attorney-General for Canada v. Attorneys-General for
Ontario, Quebec and Nova Scotia9 5 and Attorney-General for Canada v.
C.P.R. and C.N.R., the courts will decline to answer,98 but where, as Angin
J. put it in the Aeronautics Reference, the interests are affected only obliquely
because the questions are directed to the problem of legislative jurisdiction the
courts will proceed.
iv. Constitutional ?
Are references constitutional? It has been decided on the highest authority
that they are. The arguments advanced in favour of the contrary view are such
as may involve us in some slight repetition of points covered earlier in this
paper, for, as Lord Loreburn observed in 1912 :97
What in substance their Lordships are asked to do is to say that the Canadian
Parliament ought not to pass laws like this because it may be embarrassing and
onerous to a Court, and to declare this law invalid, because it ought not to have
been passed.
Protests from the bench that the federal reference
legislation was un-
constitutional were heard as far back as 1892 and 1894, shortly after the pas-
sage of the amendment to the Supreme Court Act in 1891. In 1894, in the
Manitoba Education Reference, 8 Taschereau J. expressed his doubts as to
whether the amendment was intra vires the Dominion. What section of the
British North America Act, he asked, empowered Parliament to confer on the
93[1958] S.C.R. 285.
941bid., at p. 294.
95Supra, footnote 87.
96The Marriage Laws Reference is somewhat unique. Since Question 2 directly
affected private rights, Fitzpatrick C. J., Idington and Anglin JJ. protested it, yet it
was answered by all the judges except Fitzpatrick C. J.
9TAttorney-General for Ontario v. Attorney-General for Canada, [1912] A.C. 571
at p. 589.
18(1894), 22 S.C.R. 577 at p. 677. Taschereau J. had also expressed his doubts on
this score in Reference re County Courts of British Colunibia, (1892), 21 S.C.R. 446
at pp. 454-55.
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[Vol. 6
Supreme Court, a statutory court, any other jurisdiction than that of a court
of appeal under s.101 of that Act. In his view, the reference legislation had
made the court a court of first instance, or rather an advisory board to the
executive, performing neither the usual functions of a court of appeal or of any
court of justice whatever.
It was only in 1910 however, that the consiitutional issue was put squarely
before the Court.9 9 In that year -the Governor-in-Council submitted a number
of questions for the consideration of the Court dealing with a mixture of
topics, including the limitations placed by the British North America Act,
1867, upon the provincial power to incorporate companies, the competency of
British Columbia to grant certain fishing rights in certain waters, and the
validity of some sections of the Insurdnce Act (Can.) of 1910. British
Columbia consented to the reference on the fishing question and Quebec to the
reference on both the fishing and insurance questions. However, all the other
provinces, with the exception of Saskatchewan, moved that the Court should
not consider the questions “as not being matters which can properly be con-
sidered by the court as a court or by the individual members thereof in the
proper execution of their judicial duties.” The motion of the provinces was
dismissed by the Supreme Court, four to two.
On appeal,99a counsel for the appellant provinces noted that the point in-
volved in references might afterwards arise in the course of legal proceedings
between private suitors or between the province and the Dominion. The, con-
tribution of counsel for Canada, on the other hand, is noteworthy too for
pointing out that reference legislation had been enacted by most of the provinces.
His remarks, together with those of provincial counsel, raised for the first
time the constitutionality of provincial reference legislation. The Supreme
Court had confined its attention entirely to references by the Governor-in-
Council.
Earl Loreburn, delivering the judgment of the Board, proceeded to define
the basic issues generally thus:
that the Dominion Act authorizing questions to be asked of
It is argued . . .
the Supreme Court is an invasion of provincial rights, but not because the power
of asking such questions belongs exclusively to the provinces. The real ground
is .far wider. It is no less than this –
that no Legislature in Canada has the
right to pass an Act for asking such questions at all:100
and with regard to the Supreme Court in particular, as follows:
The provinces . . . say that when a Court of Appeal fr6m all the provincial Courts
is authorized to be set up,, that carries with it an implied condition that the Court
of Appeal shall be in truth a judicial body according to the conception of judicial
character obtaining in civilized countries and especially obtaining in Great Britain,
to whose Constitution the Constitution of Canada is intended to be similar .
.
And they say that to place the. duty of answering questions, such as the Canadian
Act under consideration does require the Court to answer, is incompatible with the
.
99References by the Governor-General in Council, (1910), 43 S.C.R. 536 at p. 537.
9 9aSupra, footnote 97.
lOOIbid., at p. 581.
No. 3]
REFERENCE CASES
maintenance of such judicial character or of public confidence in it, or with the
free access to an unbiased tribunal of appeal to which litigants in the provincial
Courts are of right entitled. This argument in truth arraigns the lawfulness of
so treating a Court upon the ground that a Court liable to be so treated ceases to be
such a judiciary as the Constitution provides for . . . If, notwithstanding the
liability to answer questions the Supreme Court is still a judiciary within the
meaning of the British North America Act, then there is no ground for saying
that the impugned Canadian Act is ultra vires.10 ‘
His Lordship went-on to reject the provincial contentions in general because
to assume that any point of internal self-government had been withheld from
Canada would be “subversive of the entire scheme and policy” of the British
North America Act, 0 2 and in particular, on three grounds: United Kingdom
practice, the fact that reference had been answered before, 1910 by the Supreme
Court and Privy Council, and the fact that nearly all the provinces had enacted
legislation similar to the federal legislation now being considered. Of these
three, Earl Loreburn attached the greater weight to the last two, since, as he
put it, “Canada must judge of Canadian requirements.”‘
His Lordship noted that reference
legislation had been on the federal
statute books in one form or another since 1875 and that the Supreme Court
had frequently answered questions submitted under it. More important, the
Judicial Committee had heard several appeals from such answers without
ever having questioned the validity of such proceedings. It was quite true, he
admitted, that no interested party had ever raised the issue before 1910 and
these bodies would be reluctant to raise it on their own, but surely this would
not be the case where the practice involved the very foundations of justice.
The only inference which could be drawn from the past silence of the Board
in Canadian references was that it did not consider such submissions pre-
judicial to the independence and character of courts of justice. 0 4 Moreover,
there was the provincial reference legislation to consider. The proposition that
this legislation could be valid while similar federal legislation was invalid
was dismissed by his Lordship as “very strange.” There only remained, then,
the conclusion that the provincial legislation was also invalid “upon the general
ground… that a court of justice ceased in effect to be a court of justice when
such a duty is laid upon it.” But this was unacceptable.
Certainly it is remarkable that for thirty-five years this point of view has apparently
escaped notice in Canada, and a contrary view, now said to menace the very essence
of justice has been tranquilly acted upon without question by the Legislatures of
the Dominion and provinces, by
the Judicial
the British North America Act established the present
Committee ever since
Constitution of Canada. 0 5
His Lordship then expressed his agreement with the proposition that federal
references could not affect the administration of justice because they were
in Canada, and by
the Courts
IOlIbid., at pp. 584-85.
lO2 Ibid., at p. 581.
lOSIbid., at p. 587.
lO4 Ibid., at pp. 587-88.
lOsIbid., at p. 588.
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[ Vol. 6
only advisory, issued a reminder that the Board was not concerned with
whether references were good policy, and dismissed the appeal.
The judgment, by implication,- upheld the provincial reference
legislation
as well as that of the Dominion. The holding declares that “it was intra vires
of the respective Legislatures” to impose this duty upon the courts, Left more
obscure is the question of basis in the sections of the British North America
Act. Presumably, it is s.92 (14) for the provinces, but the source of federal
jurisdiction is more uncertain. In Re References Davies and Fitzpatrick JJ.
felt that s.101 would be adequate for this purpose, but that the necessary
clause of s.91 would do equally well. Duff J. considered s.101 only, while
Anglin J. did likewise with s.91. Perhaps since Anglin J. forcefully rejected
s.101 while Duff J. did not consider s.91, the edge should go to the latter
section. Macdonald 0 6 lists references among the few matters with which the
Dominion may deal in normal times in virtue of the opening words of s.91.
Since we have it on the authority of both the Supreme Court and the Privy
Council that federal references involve no interference with any of the classes
of subject assigned to the province in s.92, such a solution would be entirely
proper.
06Macdonald, op. cit.
