The political and legal uses of reference cases by the Mackenzie King government, 1935-1940
Creators: name: Hart, John Frederic Vincent
Publisher: name: University of British Columbia
Year: 2011

description: This thesis provides an examination of both the political and legal uses of reference cases to the Supreme Court of Canada by the Mackenzie King government. Attention is devoted to the five-year-period, 1935-1940, in which the King administration submitted several politically motivated references to the Supreme Court. This political use of reference cases to the Supreme Court began immediately after the Liberals returned to power in October 1935 when the government submitted the Bennett government's New Deal legislation for judicial scrutiny. Within the five-year-period the government forwarded two other references to the Supreme Court, again where highly controversial legislation was involved: the Alberta Social Credit statutes passed in 1937 and the private member's bill sponsored by CH. Cahan in 1939 to abolish overseas appeals to the Judicial Committee of the Privy Council, then the final court of appeal for Canada. The underlying premise of this thesis is that in each of the above instances the King government found it politically expedient to involve the Supreme Court in issues where questions of law were clearly subordinate to the political concerns of the federal government. Furthermore, in each instance, avenues of action, other than a reference case to the Supreme Court, were available to the federal government but were rejected by cabinet. Only in one instance, when Quebec's controversial 1937 Padlock Act was under close scrutiny, did the federal government avoid submitting a patently political issue to the Supreme Court, apprehensive of the consequences of such action. The federal government's reluctance to forward a reference to the Supreme Court in the case of Quebec's Padlock Act thus provides a revealing contrast to both the New Deal and the situation in Alberta where reference cases were initiated almost immediately. The federal government's marked reluctance to deal with Quebec in a comparable manner therefore merits close attention and as such is an important element of this thesis. The background to each reference case, its political origins, the reasons for the federal government's insistence on a reference--or in the case of Quebec, the reasons for avoidance of a reference—are the central issues addressed in this thesis. The cases are examined from another viewpoint as well. Once before the Court, the political issues gave way as the Court focused primarily upon the legal issues involved. The Court's decisions thereby provide another important vantage point from which to view the implications of the federal government's actions. For example, an assessment of the legal argument and judicial reasoning in the New Deal cases helps one answer these questions: First, did King's lawyers really try to win? Second, did the courts (both the Supreme Court of Canada and the Judicial Committee of the Privy Council) simply bow to King's obvious desire that the legislation be declared ultra vires? Third, did the courts, as some have alleged, decide that the depression was not an emergency? Although the King government may have found it preferable for short-term considerations to submit contentious political issues involving questions of law to the Supreme Court for its legal opinion, in the long-term it found itself dealing with unexpected complications arising from the very decisions it sought. Even if the government successfully predicts the legal outcome of a court case, it may find itself dealing with a political outcome it had not anticipated. Certainly if the actions of the King government are any indication in the five-year-period under discussion, this is a complication a government seldom expects, although one as I argue, that it should prepare itself for. This thesis also demonstrates that when reference cases are employed by the federal government, politicians, constitutional scholars, political journalists and other concerned citizens should ask two important questions: First, is the reference being initiated to avoid or delay assuming political responsibility in a given situation? Second, are like situations indeed receiving like treatment? As indicated throughout this thesis, such questions are of great importance. Indeed, this thesis demonstrates that in the period between 1935 and 1940 the King administration initiated not only the New Deal reference, but forwarded C.H. Cahan's private member's bill to the courts as well, in order to avoid dealing with a controversial political issue. So, too, the period provides a telling example of an in-stance where like situations were not treated alike as the striking similarities between the situation in Alberta and Quebec indicates. Clearly, a failure to ask questions such as the ones posed above leads to the possibility that the full meaning of the reference cases themselves, their origins and their implications, will not be realized by the interested onlooker.