Notice of Application

 

Notes: “opinions issued in the purported exercise of a non-judicial advisory function”
“no legal consequences can flow from such opinions.”
CGPT = so tell me, how would this be rephrased in that light:
Taken together, your four remedies say — in institutional terms:

“This application seeks to invalidate the constitutional basis of the Supreme Court of Canada’s advisory jurisdiction, nullify its advisory jurisprudence ab initio, strip Parliament of legislative authority founded on that jurisprudence, and affirm that the territorial unity of Canada is constitutionally immutable.”

“This challenge encompasses most notably s. 53 of the Supreme Court Act, but also all other provisions purporting to confer advisory or reference jurisdiction on the Supreme Court of Canada, including s. 54, which permits the Senate or the House of Commons to refer private bills or petitions for private bills to the Supreme Court for opinion.”

“A declaration that all purported statutory or purported advisory or reference jurisdiction conferred on the Supreme Court of Canada — most notably under s. 53 of the Supreme Court Act, but also under s. 54 and any other federal statute — is unconstitutional, void ab initio, and incapable of being exercised now or in the future.”

“A declaration that all advisory or reference jurisdiction claimed to be conferred on the Supreme Court of Canada — including, most notably, under s. 53 of the Supreme Court Act, as well as under s. 54 and any other federal statute — is unconstitutional, void ab initio, and incapable of being exercised now or in the future.”

WHERE IS PROHIBITION ?????

* * * * * * * *
DRAFT — NOTICE OF APPLICATION (JUDICIAL REVIEW)
 

NOTICE OF APPLICATION FOR JUDICIAL REVIEW

(pursuant to Rule 300 of the Federal Courts Rules)

 

Seeking declarations, certiorari, and prohibition
in respect of the purported exercise of advisory jurisdiction
under ss. 53, 54 and 36 of the Supreme Court Act

 

 

NOTICE OF APPLICATION

 

TAKE NOTICE that the Applicant applies to this Honourable Court under ss. 18 and 18.1 of the Federal Courts Act for judicial review and constitutional declarations respecting the validity of ss. 36 and 53 of the Supreme Court Act, R.S.C. 1985, c. S-26.
 

RELIEF SOUGHT

 
The Applicant seeks the following relief:

  1. A declaration that s. 53 of the Supreme Court Act is ultra vires Parliament under s. 101 of the Constitution of 1867, to the extent that it purports to confer advisory, non-judicial jurisdiction on the Supreme Court of Canada.

  2. A declaration that s. 54 of the Supreme Court Act is ultra vires Parliament under s. 101 of the Constitution of 1867, to the extent that it purports to confer advisory, non-judicial jurisdiction on the Supreme Court of Canada.

  3. A declaration that s. 36 of the Supreme Court Act is ultra vires Parliament under s. 101 of the Constitution of 1867, to the extent that it purports to authorize “appeals” from provincial advisory opinions.

  4. A declaration that the Supreme Court of Canada’s advisory/reference jurisdiction was never constitutionally authorized under s. 101 of the Constitution of 1867 and is therefore void ab initio, together with a declaration that all advisory or reference opinions issued in the purported exercise of that jurisdiction — including the alleged legal principles articulated therein — are without constitutional force or effect and cannot constitute binding Canadian constitutional law, including (without limitation) the following references:

    1. Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 (the “Patriation Reference”);
    2. Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (the “Secession Reference”; and
    3. Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21 (the “Nadon Reference”).
  1. A declaration that all advisory or reference jurisdiction claimed to be conferred on the Supreme Court of Canada — including, most notably, under s. 53 of the Supreme Court Act, as well as under s. 54 and any other federal statute — is unconstitutional, void ab initio, and incapable of being exercised now or in the future.1

  2. A declaration that all statutory or purported advisory or reference jurisdiction conferred on the Supreme Court of Canada — most notably under s. 53 of the Supreme Court Act, but also other provisions purporting to confer advisory or reference jurisdiction on the Supreme Court of Canada, including s. 54 which permits the Senate or House of Commons to refer private bills or petitions for private bills to the Supreme Court for opinion; and under any other federal statute — is unconstitutional, void ab initio, and incapable of being exercised now or in the future.

  3. A declaration that the Clarity Act (S.C. 2000, c. 26) is void ab initio, as it is a constitutionally illegitimate enactment founded not on any power granted by the Constitution of Canada, but on the Supreme Court of Canada’s non-judicial advisory opinion in Reference re Secession of Quebec — an opinion that unlawfully and implicitly arrogates constituent authority to the non-judicial board constituted under s. 53 of the Supreme Court Act, has no force or effect in law, and advances a program for the dismantling of Canada through the invention and application of purported “unwritten principles” unknown to and unsupported by Canadian constitutional law or precedent.

  4. A declaration that no referendum, parliamentary resolution, motion, or political declaration—whether provincial or federal—can lawfully alter, qualify, symbolically redefine, or condition the existential unity of Canada, nor be used to generate or approximate criteria for the international recognition of any part of Canada as a state.

  5. A declaration that the constitutional unity of Canada is a non-derogable, non-optional, and non-negotiable existential condition of the state, such that no duty to negotiate can arise in respect of it, there being no constitutionally lawful mechanism by which that unity may purport to be authorized, initiated, submitted to negotiation, or altered.

  6. A declaration that no duty to negotiate can arise in respect of the unity of Canada, there being no constitutionally lawful mechanism by which that unity may be submitted to negotiation or alteration.

  7. A declaration that, in light of the foregoing and the inseparable hybridization of advisory and judicial functions since 1875, the Supreme Court Act in its present form is constitutionally invalid and void ab initio, and that any future legislation enacted by Parliament under s. 101 establishing a general court of appeal must be confined to genuine appellate adjudication.

  8. An interim and interlocutory stay of the operation of ss. 36, 53 and 54 of the Supreme Court Act, and of any proceedings or references taken or proposed under those provisions, pending final determination of this Application, with particular attention to any matters affecting Quebec and Alberta.

  9. An interim and interlocutory stay of the operation of provincial and territorial referendums organized in light of the Reference re Secession of Quebec or the Clarity Act, pending final determination of this Application, with particular attention to any matters affecting Quebec and Alberta.

  10. An interim and interlocutory stay of the operation of any provincial or territorial referendums organized or contemplated in reliance upon the constitutionally infirm Reference re Secession of Quebec or the Clarity Act, pending the final determination of this Application, with particular regard to any such measures affecting Quebec or Alberta.

  11. An order of prohibition restraining the Supreme Court of Canada, its judges, and any panel constituted under the Supreme Court Act from exercising or purporting to exercise advisory or reference jurisdiction under ss. 53 and 65 of that Act, or from hearing or determining any appeal under s. 36 of that Act arising from a provincial advisory or reference opinion.

  12. A declaration that the classification of advisory opinions as ‘Supreme Court Judgments’ on the Supreme Court of Canada’s website and in its official materials is misleading in law, because it implies that such opinions have binding, precedential, or declaratory effect.

  13. Such further and other relief as this Honourable Court deems just.

    14.  

    GROUNDS OF APPLICATION

     

  14. This challenge encompasses most notably s. 53 of the Supreme Court Act, as well as all other provisions purporting to confer advisory or reference jurisdiction on the Supreme Court of Canada, including s. 54, which permits the Senate or the House of Commons to refer private bills or petitions for private bills to the Supreme Court for opinion.

    15. A.  Constitutional Framework (s. 101)

  15. s. 101 of the British North America Act, 1867, 30 & 31 Vict., c. 3 (U.K.), later re-designated in 1982 as the Constitution Act, 1867 by the Canada Act 1982 (U.K.), authorizes Parliament to “provide for the constitution, maintenance, and organization of a General Court of Appeal for Canada.”

  16. On its plain meaning in 1867, a “court of appeal” referred to a judicial body resolving live disputes arising from judgments in actions or prosecutions, not a body issuing advisory opinions.

  17. The Constitution of 1867 contained no machinery for resolving constitutional questions by advisory reference, nor by any mechanism operating outside the provincial superior courts, confirming that the framers did not contemplate an advisory constitutional tribunal.

  18. This understanding is consistent with the 1865 Confederation Debates, in which members of the Legislature of the Province of Canada expressly discussed — and declined to create — a specialized constitutional court to resolve division-of-powers controversies.

  19. (Sir John A. Macdonald, in correspondence in the late 1880s, warned that overuse of the advisory/reference function then in operation could tend to “oust” the jurisdiction of provincial superior courts, demonstrating his view that Parliament’s power under s. 101 of the British North America Act, 1867 is not unbounded.)

    20. “I have made a note on the margin on the 10th page, merely for the purpose of calling your attention to the grave danger of the practice of summary application for advice to the Supreme Court being resorted to. It would quickly grow, and a Dominion ministry, careless or ignorant of constitutional prbinciples, might on every question of public interest, for popularity or some sinister purpose, freely use the power of reference. A Mercier government would leave every question to the Supreme Court, if it thought the courts below were adverse to its wishes. And it would be an inducement to pack the Supreme Court with its partisans, imitating in that respect the government of the United States. The courts below would gradually be ousted of their jurisdiction, and a new Star Chamber formed. I don’t think this at all an imaginary danger.”  pp. 452-453, From Sir John Macdonald to Sir John Thompson. Les Rochers, St. Patrick, Riviere du Loup. Private. July 24th, 1889. Sir Joseph Pope, Correspondence of Sir John Macdonald (Toronto: Doubleday, Page & Company, 1921).

    B. Original Constitutional Defect (1875)

  20. Notwithstanding the foregoing, when Parliament enacted the original Supreme Court Act in 1875, it included an advisory reference function.

  21. The contemporaneous Hansard record shows that Justice Minister Télesphore Fournier explicitly acknowledged that advisory jurisdiction was unconstitutional without a constitutional amendment; but nonetheless retained the advisory provision in the first Supreme Court Act, subject to procedural workarounds requiring provincial consent where provincial interests were engaged in a reference.

  22. The inclusion of advisory jurisdiction in 1875 therefore created a latent constitutional defect ab initio. There has never been a constitutional amendment; to this day, the reference “power” remains unlawful.

    23. C.  Union Colliery and Early Avoidances of s. 101

  23. In Union Colliery Co. of British Columbia v. Bryden (1897 SCC; 1899 JCPC) (Union Colliery Co. of British Columbia v. Attorney General of British Columbia, (1897) 27 S.C.R. 637), the Judicial Committee held that appellate courts do not possess jurisdiction over advisory questions absent clear statutory authorization.

  24. However, Union Colliery treated the issue as one of statutory authority, not constitutional power under s. 101, and did not decide whether Parliament was constitutionally permitted to confer such authority.

  25. Similarly, in the 1910 Supreme Court reference and the subsequent 1912 Privy Council proceedings (Re References by Governor-General in Council (1910), 43 S.C.R. 536, aff’d [1912] A.C. 571), neither the SCC nor Lord Loreburn squarely addressed s. 101; instead, the Judicial Committee assumed that Parliament must have had the relevant power “somewhere” in the BNA Act.

  26. This avoidance was facilitated by the era’s reluctance to consult Hansard to interpret constitutional statutes.

  27. Accordingly, early jurisprudence did not resolve — and in fact avoided — the constitutional question now before this Court.

    28. D.  Statutory Workarounds Cannot Cure Constitutional Defects

  28. Sections 36 and 53 of the Supreme Court Act purport to create statutory pathways for advisory and quasi-advisory references to reach, or originate in, the Supreme Court of Canada.

  29. Parliament cannot, by ordinary statute, expand the constitutional meaning of “appellate jurisdiction” in s. 101.

  30. To the extent that ss. 36 and 53 purport to confer or facilitate advisory or quasi-advisory jurisdiction, they are ultra vires Parliament’s authority under s. 101.

  31. Longevity of practice does not cure constitutional invalidity; as illustrated by the 90-year-old unilingual Manitoba statutes, acceptance over time does not render an unconstitutional practice valid.

    32. E.  Comparative-Law Justifications Do Not Cure the Defect

  32. In the 1998 Reference re Secession of Quebec, the s. 53 Board relied in part on the existence of advisory functions in “other courts in other jurisdictions” to normalize advisory jurisdiction.

  33. Comparative practice cannot create constitutional authority under the Constitution of 1867 where none exists in s. 101.

  34. The validity of advisory jurisdiction must be determined by the text, history, and structure of the Canadian Constitution, not by foreign analogies.

    35. F.  Institutional Hybridization (Inseverability)

  35. The grafting of advisory jurisdiction onto the Supreme Court in 1875 created a hybrid court, blending judicial and advisory roles.

  36. This hybridity is exemplified by the Reference re Manitoba Language Rights (1985), in which the Court, sitting on a reference, fashioned a complex, time-limited remedial regime characteristic of judicial governance rather than mere advice.

  37. The advisory function has therefore become inseparable in practice from the Court’s judicial identity; it cannot be cured by simply excising ss. 36 and 53.

  38. Accordingly, the constitutional defect permeates the institutional design of the current Supreme Court Act, necessitating legislative replacement under s. 101.

    39. G. Abuse of s. 53 and the “Evolution” Claim

  39. In the Reference re Supreme Court Act, ss. 5 and 6 (Nadon Reference), the s. 53 Board asserted that the Supreme Court Act had “evolved” into a quasi-constitutional instrument resistant to post-1982 amendment.

  40. That assertion presupposes the validity of advisory jurisdiction and cannot immunize provisions that were ultra vires from inception.

  41. To the contrary, any such “evolution” underscores the need for Parliament to enact a new Act confined to genuine appellate adjudication.

    42.  

    CONSTITUTIONAL QUESTION

     
    The following constitutional question is raised:

    Are ss. 36, 53 and 54 of the Supreme Court Act ultra vires Parliament under s. 101 of the Constitution of 1867 to the extent that they purport to confer or facilitate advisory or quasi-advisory jurisdiction on the Supreme Court of Canada?

     

    PROCEDURE

     
    The Applicant proposes that this Application be heard in writing unless otherwise directed by the Court.

    DATED at Montreal, Quebec, this ___ day of ________, 20.

    Kathleen Pageot
    Applicant

    Footnote:  Section 55 of the Supreme Court Act (R.S.C. 1985, c. S-26) authorizes the issuance of writs of certiorari to bring up records from lower courts for the purposes of an inquiry, appeal, or other proceeding before the Court.  This is a procedural power and does not itself confer advisory or reference jurisdiction; it therefore does not require challenge in this Application.