We expect politicians to use colourful language and imagery: even though parliamentary rules forbid the use of certain words, Hansard is full of deliberate exaggerations and mischaracterizations. We expect our judges, however, to speak and write in more measured tones and to choose their words carefully. These different expectations are entirely justified. After all, legislators and judges have different responsibilities and use their words for different purposes. Legislators use theirs to justify their political positions and to score points against opposition parties. A judge’s sole responsibility is to make decisions, based on the law, as between the parties before them; their reasons should be confined to justifying the decision.
Such careful choice of language helps preserve the traditional separation of powers in which the judicial, executive and legislative branches of government play different roles in upholding democracy and the rule of law. The debate about Danielle Smith’s proposed Alberta Sovereignty Act should remind us of the importance of the separation of powers. Provincial legislators make laws. They don’t rule on the validity of those laws or the laws adopted by the federal parliament. That is the role of the courts.
It is therefore troubling when we see instances of judges speaking like politicians—as happened with a reference case at Alberta’s Court of Appeal in May of last year.
A typical court case in Canada involves a concrete dispute between two or more parties. Federal and provincial governments, however, reserve the right to submit more-abstract questions to a court for its opinion. These are known as reference cases. In Canada, provincial governments pose reference questions to their own courts of appeal (with an automatic right of appeal to the Supreme Court of Canada); the federal government can pose reference questions directly to the Supreme Court. The latter happened, for example, with the Quebec Secession Reference (1998) and the Same-Sex Marriage Reference (2004). In some instances, several provinces pose the same or similar questions to their courts of appeal, with any differences being resolved by the Supreme Court. Such was the case recently with references by Saskatchewan, Ontario and Alberta relating to the validity of the federal carbon tax.
The reasons for resorting to a reference vary. Sometimes questions about a law that’s been passed by a legislature are best resolved before the law is brought into force. The Horgan government in BC, for example, sought the opinion of its Court of Appeal (and ultimately of the Supreme Court) on changes to BC’s environmental legislation that targeted the transport of incremental volumes of oil sands production through the province. The Court of Appeal concluded (as did the Supreme Court) that the proposed legislation was unconstitutional. The courts’ decisions helped defuse a war of words between Alberta and BC and avert potentially more serious economic embargoes.
While a reference opinion isn’t binding in the same way that a conventional judicial decision is, a Supreme Court reference opinion provides an authoritative statement that lower courts will invariably follow.
Reference opinions in Canada typically encounter two objections. First, civil disputes between parties come before the courts in the context of a detailed factual matrix—that is, all of the relevant information and circumstances. This way, a court can tailor its response to a particular dispute, fully aware of a ruling’s implications. References, however, generally lack that detailed factual matrix. Some legal experts argue it’s simply better to wait for a real dispute to emerge, because it’s easier to assess the implications of a ruling in that context, and because a ruling might be premature without all of the relevant information and circumstances.
The second objection is that reference questions are always posed by the executive branch of government and thus frequently engage politically sensitive issues. A court then risks being dragged into the political fray, which can raise questions about judicial independence. While a court can decline to answer questions that seem political rather than legal, there’s always some risk to the traditional separation of powers.
That risk exists when the government uses its reference power in an overtly political manner; it’s compounded if the court itself adopts the language and imagery of politics in providing its opinion. And this—what I call the politicization risk—is exemplified by Alberta’s Court of Appeal reference opinion from last year.
The Alberta Court of Appeal provided that opinion in response to questions posed by Jason Kenney’s government about the validity of the federal Impact Assessment Act (IAA, also known as Bill C-69). The IAA is just the most recent rewrite of federal environmental laws that have been around in one form or another since the 1970s. Alberta’s UCP government—and indeed the Notley government before it—has consistently taken the view that this new iteration of impact assessment legislation represents considerable federal overreach. This is particularly so for what Alberta’s government views as projects entirely within the province’s boundaries, such as in situ oil sands. It was therefore hardly surprising that, shortly after the IAA was proclaimed in 2019, Kenney brought a reference to the Alberta Court of Appeal seeking to test what he termed “legislation that will have devastating impacts on Canadians.” He added that the IAA constituted “a flagrant violation of the exclusive constitutional jurisdiction of provinces and territories to control the development of their natural resources.”
The majority (4–1) of the Alberta Court of Appeal’s panel of judges ultimately sided with the premier. The court advised that the IAA was beyond the power of Parliament, on the basis that it would allow the federal government to make decisions on grounds that weren’t sufficiently connected to their law-making powers. The principal difference between the majority and the lone dissenting opinion of Justice Sheila Greckol is that the latter was prepared to assume that the broad discretionary powers of the IAA would be exercised by the federal cabinet in conformity with the division of powers prescribed by the constitution and the principles of federalism. The majority, however, seemed to assume the worst.
This difference will be resolved by the Supreme Court of Canada, just as that court ultimately resolved differences as to the validity of the federal carbon tax. In that instance Alberta’s Court of Appeal had found the legislation unconstitutional, following which the Supreme Court concluded (confirming the majority opinions of both the Ontario and the Saskatchewan courts of appeal) that the tax was in fact a valid exercise of Parliament’s power.
My unease, however, isn’t about the constitutional merits of the Impact Assessment Act. Rather, I’m concerned about how the IAA reference—in particular the majority’s response—exemplifies the politicization risk.
It’s hardly surprising that Premier Kenney and his ministers adopted highly charged terms in describing the IAA and the reference case. The UCP cabinet referred to Bill C-69 as the “No More Pipelines Law” and its passage as “a dark day for Alberta and Canada as a whole.” Furthermore, Bill C-69 was predicted to “scare away billions of dollars in capital investment and tens of thousands of jobs.” The “no more pipelines” epithet is particularly revealing, since it misleadingly dresses up Alberta’s economic grievances about allegedly limited pipeline capacity as a constitutional grievance. In fact, all parties involved in the IAA reference conceded that Bill C-69 would be completely valid as applied to interprovincial pipelines, since such pipelines clearly fall under federal jurisdiction. Any rightful objection to the IAA could therefore only be an objection to the merits of the legislation, not to its constitutionality.
But even if we might expect politicians to use charged language in describing Bill C-69, it was extraordinarily disappointing to see our Court of Appeal, led by then-Chief Justice Catherine A. Fraser, double down on the political rhetoric.
In the court’s majority opinion the IAA poses an “existential threat … to the division of powers guaranteed by our Constitution and thus to Canada itself.” The court suggested that the IAA placed “provincial governments in an economic chokehold controlled by the federal government.” The majority also found it necessary to remind the federal government that it doesn’t have “the constitutional right to appropriate the birthright and economic future of the citizens of a province.”
This is hardly the measured, sober and proportionate language that we expect of a court charged with providing an opinion on the constitutional validity of legislation. And none of this commentary was necessary to decide the case. In adopting the language of “existential threat,” the majority explicitly suggested that the IAA poses a hazard similar in magnitude to that of global climate change. It’s hard to imagine a more disproportionate analogy. As for the language of “chokehold,” this conjures up the spectre of (terminal) physical violence. And the mention of a province’s “birthright” suggests wholesale federal appropriation of provincial resources.
The subject of this reference, however, is not a federal resource tax or federal expropriation, but rather legislation designed to provide for a science-based assessment of the environmental, social, economic and health considerations of new projects. Yes, the information-collection and assessment procedures of the IAA support the federal government’s decision-making process with respect to such projects. But the majority on Alberta’s Court of Appeal panel could have provided their reasons and conclusions without using inflammatory language.
The Alberta Court of Appeal gave its opinion last May. The federal government shortly thereafter announced it would appeal the matter to the Supreme Court. In the meantime the government of Alberta welcomed other provinces’ interventions in the appeal. A press release from Kenney referred approvingly to the Court of Appeal’s “chokehold” and “birthright” language. I trust that at least some members of the bench cringe a little when they see how the Court of Appeal wittingly provided language to fuel a political—not judicial—discourse.
References can serve the useful purpose of clarifying the law. It was appropriate to refer the constitutionality of the federal carbon tax to the courts. After all, that case involved the novel application of Parliament’s power to make laws for the peace, order and good government of Canada. And while the validity of the IAA may have been better considered in the context of an actual case with a concrete set of facts, I don’t think it was inappropriate for the government of Alberta to seek a reference.
Politicians and judges alike, however, must exercise care in using this power. It’s probably too much to ask that politicians avoid political language when invoking a reference, but it would be far more appropriate if all communications about references were handled not by the Premier’s Office but by Alberta’s Justice Minister or Solicitor General, since they ought to be sensitive to the need to maintain the separation of powers. More importantly, judges must distance themselves from politicians’ inflammatory characterizations. In this case, the majority of Alberta’s Court of Appeal simply failed to do so.
References should be used to obtain legal opinions on questions of law; they shouldn’t be used to continue a political dialogue through the courts. The risk of doing so is the perception that the courts are being asked to take sides—or, worse still, that the court may actually be taking sides and joining in the political fray. This calls into question the independence of the judiciary and its separate function in our constitutional democracy.
One has only to look at developments south of the border to appreciate the risk. There, the appointment of Supreme Court judges is highly politicized, and the decisions of that court look more and more like the continuation of politics in a different forum. Hence the need in Alberta for renewed vigilance and prudence in maintaining both the perception and the reality of judicial independence.
Nigel Bankes is a professor emeritus of law at the University of Calgary.
