Under section 53 of the Supreme Court Act, the Governor in Council can refer important questions of law or fact to the SCC for an opinion. The SCC will then provide an opportunity for interested parties to make written and oral arguments. After considering the question(s) and the arguments of the interested parties, the Court will render an opinion and, to the extent possible, will provide an answer to the question(s) posed by the Governor in Council.
Often, references to the SCC deal with the constitutionality of provincial or federal laws.
The Government has referred the following question about the proposed Canadian Securities Act to the SCC:
Is the annexed Proposed Canadian Securities Act within the legislative authority of the Parliament of Canada?
The Government of Canada is thus seeking the opinion of the SCC on whether the proposed Canadian Securities Act is within the legislative authority of the Parliament of Canada.
The Government believes that the proposed Canadian Securities Act is a valid exercise of Parliament’s jurisdiction, and will argue that position before the SCC. The Government’s position is supported by a large number of existing legal opinions by experts and constitutional scholars.
The Government launched a reference to the SCC to provide legal certainty to the provinces, territories and market participants. An opinion from the Court will determine whether the Parliament of Canada has the legislative authority under the Constitution.
Although there are two references pending before provincial courts of appeal, they are nevertheless subject to a final appeal to the SCC. In this context, asking the opinion of the SCC directly is both effective and efficient.
There could be an opinion from the SCC within 10 to 24 months of filing the notice of reference. This estimate is based on past references before the Court.