Canadian Lawyer

OPINION reform have a huge political dimension that dwarfs the legal issues. By requiring the Supreme Court to give advice on such matters, the government drags the court into the political arena. The court has even sometimes acknowledged this to be the case: in Reference re Same-Sex Marriage it said, "the political underpinning of the instant reference are indisputable…" Blatantly mixing politics and the law clouds judicial independence and obscures the essential separation of the judiciary from other branches of government. If the government needs a legal opinion, why not ask one of the thousands of lawyers it employs? Wait a minute, you may say, let's not be naïve about this. Everyone knows that judges, even at lower levels, are up to their elbows in politics. Richard Posner, a leading U.S. appellate court judge, famously said judges are politicians in robes. In Canada, this has been particularly true since the 1982 Charter of Rights and Freedoms. Since the Charter, many disputes that in the old days would have been regarded as political, and been set- tled by legislators, have been recharacterized as legal and resolved by judges. So, what's so special (and undesirable) about asking the Supreme Court to play a national political role by way of the reference procedure? The answer is that there's a big difference between deciding a quasi-political or policy issue in the abstract, at the request of government, and adjudicating a particular dispute that may incidentally have political overtones. The first is not the role of the judiciary; the second is the judiciary's job and calls on particular skills that judges possess. The Supreme Court of Canada's reference function crosses the line that separates deciding disputes from determining policy. For example, consider the recent Reference re Securities Act. For political reasons, the Government of Canada asked the Supreme Court for an advisory opinion on whether proposed federal securities legislation fell within Parliament's general power to regulate trade and commerce.  In an appalling opinion, displaying vast ignorance of the capital markets, the court said the draft legislation was unconstitutional. Wouldn't it have been better, much better, if Parliament had passed the legislation, and then it had been challenged in the courts by any province that was opposed? The case might eventually have found its way to the Supreme Court; the court might have given leave to appeal (or not); maybe the court would have struck down an act passed by Parliament, in place and functioning, but I doubt it. Referring an "important question of law or fact" to the Supreme Court may sometimes be very tempting to the government of the day. It can be used to punt a hot political potato to the judiciary. It buys time, and in politics time is everything. But the reference function damages the essential fabric of government. It's not worth it. Philip Slayton's latest book, Mighty Judgment: How the Supreme Court of Canada Runs Your Life, is now available in paperback. Follow him on Twitter @philipslayton. LEGAL EVENTS DESIGNED FOR THE LAW FIRM C-LEVEL EXECUTIVE West LegalEdcenter® is the leading provider of live Business of Law events for C-level law firm executives. These events will allow you to better collaborate with your C-level colleagues, as well as learn the latest industry tips and best practices on how to better manage your law firm. Below you'll find upcoming live conferences designed specifically for legal professionals at the C-level. EVENT 18TH ANNUAL LAW FIRM LEADERS FORUM Oct. 17 – 18 New York, NY $2,295 Widely recognized as one of the nation's premier gatherings of law firm chairs, managing partners, and CEOs, the 18th Annual Law Firm Leaders Forum will focus on the key trends impacting the legal market and will offer thoughtful discussions by leaders drawn from some of the world's most prominent and innovative law firms. EVENT 12TH ANNUAL CFO/COO FORUM Oct. 24 – 25 New York, NY $1, 95 Plan to join us for the premier event for law firm COOs and CFOs focusing on the strategic investments necessary to meet client demands and maintain competitiveness and profitability in the continually changing legal market. Untitled-1 1 DISCOUNTS AVAILABLE Individual Discount – Receive 15% off any individual program. Use Promo Code 15LAWFIRM at checkout with any of the events. Group Discounts – We have great group discounts available for you and your colleagues. The more events you purchase, the more you save: Call 1-800-308-1700 for more information or to register. www.CANADIAN L a w ye r m a g . c o m 13-06-05 11:27 AM J u ly 2013 17

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