Canadian Lawyer

Top Court tales by Philip Slayton Passing a hot potato I t was a tempest in a teapot, that's for sure. In April, Frédéric Bastien, a history professor at Montreal's Dawson College, published a book called La Bataille de Londres. Bastien alleges former Supreme Court chief justice Bora Laskin and justice Willard Estey gossiped — perhaps revealing confidential information on deliberations — with politicians and public servants about the 1981 Patriation Reference  while it was before the court. It's easy to imagine such a thing happening. Even Supreme Court judges are human beings, with all the attendant failings. If there was gossip, Laskin and Estey weren't any too clever — reckless, even — but the whole thing doesn't seem like a huge deal. Anyway, by now, more than 30 years later, it's all just a footnote to history. The inconsequence of the recent allegations didn't stop the usual knickers getting in a twist. Quebec's National Assembly worked itself into a semi-frenzy and called on Ottawa to investigate Bastien's claims. The leader of the federal official opposition, Thomas Mulcair, tried to make something out of the incident. The professoriat pontificated. And yes, editorials were written. But, predictably and thankfully, the whole imbroglio disappeared faster than the last snow banks of winter. A random check of Amazon.ca in the middle of May showed La Bataille de Londres was ranked at about 12,000 in 16 J u ly 2013 www.CANADIAN the list of "bestsellers." So 12,000 books sold more copies in Canada than Bataille on the day I checked, including The Zombie Survival Guide (ranked at 937). But the Bastien incident, manufactured and trivial as it was, did rekindle doubts about the Supreme Court's reference function. Section 53 of the Supreme Court Act permits the federal government to ask the court for what is, in effect, a non-binding legal opinion on L a w ye r m a g . c o m "certain important questions of law or fact." In principle, the court must provide an answer, although it has occasionally and controversially declined to answer what it considers to be an inappropriate question. Provincial governments cannot send a reference directly to the Supreme Court, but each province has legislation allowing a reference to its own court of appeal, and the result of a provincial reference can be appealed as of right to the Supreme Court. References by the federal government to the Supreme Court of Canada have dealt with questions central to Canadian life, law, and politics — for example, Reference re Same-Sex Marriage (2004), Reference re Secession of Quebec (1998), Reference re Securities Act (2011), and the pending Reference re Senate Reform. Provincial reference questions that have reached the Supreme Court include Reference re Assisted Human Reproduction Act (2010 from Quebec), Reference re Goods and Services Act (1992 from Alberta), and — yes — Reference re a Resolution to amend the Constitution, the controversial Patriation Reference that was apparently the subject of inappropriate judicial gossip (1981 from Manitoba, Newfoundland, and Quebec). What could be wrong with the government seeking guidance on complex issues from some of the best jurists in the country? Plenty. Questions like same-sex marriage, Quebec secession, and Senate Dushan Milic The Supreme Court of Canada's reference function crosses the line that separates deciding disputes from determining policy.

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