Memorandum of Fact and Law of the Applicant

PART I – OVERVIEW

 
In 1889, Sir John A. Macdonald warned that unrestricted use of the power of reference risked gradually ousting the ordinary courts and creating “a new Star Chamber.” This Application seeks to determine whether that danger has now materialized.
 

1. What is Being Challenged?

1. This Application concerns the legal status and constitutional validity of advisory opinions issued under Section 53 of the Supreme Court Act, R.S.C. 1985, c. S-26.

2. Section 53 purports to authorize the Governor in Council to refer important questions of law or fact to the Supreme Court of Canada for an advisory opinion.

3. Proceedings conducted under Section 53 do not involve private litigants asserting rights in the ordinary adversarial judicial process, but instead arise exclusively from executive referral, and result in advisory determinations.

4. Individuals whose legal and constitutional interests may be affected have no ability to commence such proceedings, and no direct procedural standing within them comparable to ordinary judicial litigation.

2. Why the Federal Court is Involved

5. Under Canadian administrative law, a “federal board, commission or other tribunal” refers to a body established by federal legislation to make determinations, exercise statutory authority, or perform decision-making functions outside the ordinary superior court system.

6. In 1992, Parliament enacted what is now Section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, conferring upon the Federal Court express, exclusive original jurisdiction to grant relief in judicial review against a “federal board, commission or other tribunal” in respect of jurisdictional error, illegality, or procedural unfairness.

7. This Application proceeds on the basis that a body exercising advisory functions under Section 53 of the Supreme Court Act derives its authority from an Act of Parliament, thereby constituting a federal board or tribunal subject to the exclusive supervisory jurisdiction of this Court when operating outside its core appellate function.

8. The term “federal board” is used here strictly in its statutory sense and does not presuppose any particular theory of Canadian federalism.

3. The Foundational Constitutional Question

9. The present Application does not allege error within a statutory jurisdiction admitted to be otherwise valid. It raises a prior foundational question of the legality of the reference function itself and the necessary invalidity of all opinions rendered from its outset with special focus on the grave harm caused by abuse of this de facto power.

10. The core issue is whether the advisory function is constitutionally authorized under Section 101 of the Constitution of 1867, which strictly limits Parliament’s power to the creation of a “General Court of Appeal” and “additional Courts for the better Administration of the Laws of Canada.”

11. The issue is therefore one of constitutional competence, not simply administrative legality.

12. For the first time since the creation of the Supreme Court of Canada in 1875, over 150 years ago, the constitutional validity of the statutory advisory jurisdiction itself is brought before a court exercising ordinary, statutory judicial review.

4. Why This Issue Has Never Truly Been Adjudicated

13. Prior to 1949, in some instances, the Judicial Committee of the Privy Council assumed jurisdiction to review advisory opinions of the Supreme Court of Canada. After the abolition of appeals to the Privy Council, such advisory opinions have been treated as effectively final within Canada.

14. The constitutional validity of Section 53 was last considered by the Supreme Court of Canada in Reference re Secession of Quebec, [1998] 2 S.C.R. 217. In those proceedings, Professor Stephen Allan Scott [xxx for which party???] defended the legality of the advisory jurisdiction itself before a full bench led by Chief Justice Antonio Lamer.

15. However, that critical examination was structurally compromised, as it was conducted under the auspices of the very advisory mechanism herein impugned.

[PLACEHOLDER A: INSERT DETAILS REGARDING STEPHEN ALLAN SCOTT’S DEFENCE / FILM EVIDENCE](Note: Insert specific details here about how Professor Scott defended or addressed the advisory function during the hearings on the Quebec Secession Reference as captured on film).

 

5. The Admissions of Justice Minister Télesphore Fournier
     and the Advisories’ Origins

16. The expansion of this unaccountable advisory power operates in direct defiance of historic constitutional principles and explicit Imperial prohibitions against arbitrary, extra-judicial tribunals.

[PLACEHOLDER B: INSERT JUSTICE FOURNIER’S 1875 ADMISSIONS](Note: Insert the text detailing Justice Fournier’s contemporaneous 1875 admissions that the advisory jurisdiction in the Supreme Court Act would require a constitutional amendment to be legal, which could not be obtained at the time).

17. This expansion directly violates the Habeas Corpus Act 1640 (16 Cha. 1 c. 10), historically known as the Star Chamber Abolition Act, which explicitly banned the future creation of any court or council exercising “like jurisdiction” to the Court of Star Chamber, mandating instead that all matters concerning the liberties and properties of citizens be strictly tried and determined in the ordinary Courts of Justice.

 

6. Sir John A. Macdonald’s Star Chamber Warning

18. The modern abuse of the reference power represents precisely the constitutional danger foreseen by Canada’s first Prime Minister.

19. In a letter dated July 24, 1889, Sir John A. Macdonald warned Sir John Thompson of the “grave danger of the practice of summary application for advice to the Supreme Court being resorted to,” noting:
    

    “…a Dominion ministry, careless or ignorant of constitutional principles, might on every question of public interest, for popularity or some sinister purpose, freely use the power of reference… 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.”

7. The Leading Illustrations: Secession Reference and
    Manitoba/Bilodeau

20. The Reference re Secession of Quebec remains the primary illustration of this extra-judicial mechanism. Initiated by Order in Council P.C. 1996-1497, the Supreme Court of Canada’s federal advisory bench addressed questions concerning the legal consequences of purported unilateral secession, stating that a clear majority vote on a clear question in a referendum would give rise to a constitutional obligation on other constitutional actors to negotiate.

[PLACEHOLDER C: INSERT MANITOBA / BILODEAU CORROBORATION](Note: Insert the specific facts or narrative regarding the Manitoba/Bilodeau references to corroborate how the reference power has historically encroached upon standard court paths).

8. Current Reliance and Ongoing Consequences

21. The question is no longer historical or academic. The advisory opinions issued under the impugned jurisdiction continue to be relied upon by governments, political actors, and advocacy organizations as authoritative statements of constitutional law.

22. In practice, this advisory mechanism has been instrumentalized to bypass the ordinary judicial hierarchy.

23. It has directly encroached upon, removed, and effectively decided matters actively underway before provincial superior courts operating under Section 96 of the Constitution of 1867—such as the Quebec Superior Court—thereby dismantling the constitutionally protected core jurisdiction of those courts.

24. The continuing reliance upon the Secession Reference in connection with contemporary proposals for the territorial dismemberment of Canada demonstrates the practical, ongoing, and disruptive consequences of this impugned statutory scheme.

[PLACEHOLDER D: INSERT ALBERTA EVIDENCE / CONTEMPORARY DEVELOPMENTS](Note: Insert specific references here to the Alberta evidence, Chipiuk, Wilson, the Alberta Pension Plan (APP), the Clarity Act, and modern Quebec movements to demonstrate the active harm).

9. Relief Sought

25. Section 53 purports to erect a non-judicial advisory body that duplicates the function of the law officers of the Crown, structurally ousts ordinary courts of their jurisdiction, and permanently undermines the permanent, indivisible structure of Confederation established by the Constitution of 1867.

26. Consequently, the Applicant seeks an order in the nature of prohibition, permanent injunctions, and declaratory relief striking down Section 53 of the Supreme Court Act as radically unconstitutional.