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The legitimacy of the constitutional arbitration process in a multinational federative regime: the case of the Supreme Court of Canada.

The legitimacy of public institutions is not a subject that has received much attention in the field of legal doctrine, perhaps because of the uncertainty that appears to be wedded to the concept. Nevertheless, no study of power can ignore the question of legitimacy, which underlies the right to command and impose one's will; in this sense legitimacy is an inherent component of power. (1) As a result, "what appears clearly is the normative nature of legitimacy which, historically, has been used as a way to evaluate power and its legal actions." (2)

In concrete terms, to be legitimate is "to be recognized as justified, to be accepted for what one is and what one does". (3) In the words of Jacques Fremont, "legitimacy, beyond the strictly legal considerations, is the morally and socially acceptable and accepted character of an institution, decision or thing". (4) The notion of legitimacy may thus be understood in a broader sense than the positivist meaning, which assimilates it with legality and validity. (5) It is never permanently acquired or lost; its ability to evolve is one of its key characteristics. (6) It must be assessed continually, and it cannot be settled once and for all. The legitimacy of an institution (or power) can vary, (7) making it possible to imagine a spectrum of legitimacy.

The democratic legitimacy of judicial power is not a new question. Since the famous work of Edouard Lambert on "government by judges" in the United States, (8) published in the early years of the twentieth century, it has cropped up sporadically in all democratic societies. The legitimacy of the courts and the judges responsible for the constitutional review of the rules adopted by the state's political organs requires a constant re-evaluation of ways to reconcile democracy and constitutionalism. The question is raised constantly and kept alive by ongoing debate. Canada is no exception to the rule, especially since the constitutional amendment of 1982 that added a charter of rights and freedoms (9) to the Constitution--a reform that led to a profusion of articles on the respective roles played by political and judicial powers in the area of constitutional review. (10)

This ceaseless debate about the legitimacy of constitutional justice in a democratic regime is accompanied, in federations, by a second debate on federative legitimacy. In a federative context, the courts and judges are given the role of arbiter in the jurisdictional disputes that cannot fail to arise between the federal and federate levels of government in connection with their reserved areas of jurisdiction under the constitution. In exercising this arbitral function, judges play a fundamental role in maintaining a balance between the respective powers of each level of government. Within multinational federations, the balance between the national majority and the national minority or minorities accompanies the question of federal/federated balance. To establish its legitimacy, and the legitimacy of its decisions, the court of last appeal responsible for ruling on federative disputes (11) must be able to present a guarantee of neutrality with respect to each level of government.

The federative dimension of the notion of legitimacy has received far less attention than its democratic dimension, (12) and it is the former aspect that will be addressed in this article. Part I outlines a framework to analyze the federative legitimacy of constitutional courts, articulated around three ideas: institutional or organic legitimacy (legal status and composition of the court, method used to appoint its members); functional legitimacy (jurisdiction, type of constitutional review exercised, method of referral, approach to interpretation, and power of the "last word"); and social legitimacy (expectations of the target audience). Part II assesses the federative legitimacy of the Supreme Court of Canada from this tripartite viewpoint and highlights a number of problems connected with the court's legitimacy as the ultimate arbiter for federative disputes.

I. SETTING OUT MARKERS FOR A THEORY OF FEDERATIVE LEGITIMACY IN A MULTINATIONAL CONTEXT

Before examining the tridimensional nature of federative legitimacy (Section B), we will look at the role played by constitutional courts (13) as the arbitrators of federative disputes.

A. The Role of the Constitutional Court as the Arbiter of Federative Disputes

Constitutional disputes are an inherent part of any federative regime--"conflict management is therefore an essential element in the institutional framework of federal societies" (14)--and constitute its Gordian knot. If no conflict-resolution mode is provided, "each party in the conflict will attempt to impose its own solution, and the result of any constitutional dispute will depend on changing political circumstances or material force". (15) The actual conflict-resolution mode applied, however, varies from one federal society to the next on the basis of its specific culture. (16)

Although four main conflict-management methods can be observed within federative regimes--formal settlement, informal settlement, prevention, and public consultation (17)--it appears that formal settlement (in other words, judicial review) is the favoured choice. Most federal states have a judicial body that takes responsibility for solving federative disputes and, in particular, for ensuring compliance with the rules governing the division of legislative powers. (18) It seems, then, that the federative principle can only be fully realized through the establishment of a constitutional jurisdiction. (19)

This is, of course, because the principle that each level of government is autonomous within its own sphere of competence means that no level can change the rules of the game to its own advantage. The rules cannot be placed at the mercy of either the federal or the federate level of government, and they must be interpreted and applied by an independent arbiter that owes no allegiance to either level. (20) In short, the establishment of a judicial body with responsibility for settling federative disputes constitutes what could be described as the "pinnacle of the federal edifice". (21)

The figure of the arbiter as an "impartial and disinterested third party" (22) remains, in our opinion, the most suitable image for the function exercised by a judicial body in the area of federative disputes. (23) "Arbitral function" is used here to refer to the notion of arbitration lato sensu, namely, the conventional approach to dispute settlement by a third party, a public institution, to which the parties must submit even without their consent. (24) In the presence of a federative dispute, typically a conflict between the federal and the federate entities with respect to their jurisdiction, the constitutional court has ultimate responsibility for imposing a final settlement.

In exercising its arbitral function, the constitutional court is required to (1) interpret and apply the rules laid down by the constitutional text, or in other words apply the original contract or pact between the parties, and (2) adapt the rules to reflect changes in the societal conditions. In the latter case, the court must seek to maintain a balance between the respective powers of each level of government (the federal/federate balance) and also, in a multinational context, between the majority and minority nation(s).

1. Nature of the Original Federative Pact

Since "the federal state cannot be understood unless a relation is established between juridical norms . . . and socio-political realities", (25) the federative legitimacy of a constitutional court must be assessed on the basis of the specific features of each federation. For example, the question of the legitimacy of a court becomes more or less acute depending on whether the population is relatively homogeneous or, on the contrary, contains numerous national, cultural, linguistic, or religious divides. The question of legitimacy is even more crucial in a multinational context, particularly when a single state contains within itself a majority form and one or more minority forms of territorial nationalism. The legitimacy of a constitutional court cannot be addressed without, as a first step, focusing on the actual nature of the federative regime concerned or, in other words, examining the terms of the original federative pact.

The notion of a pact is the "founding principle" (26) of any federative regime. According to Proudhon, all federations, despite their apparent diversity, have the same foundation in the form of a synallagmatic and commutative contract. (27) Francois Rocher also points out that:
   in the beginning, the Latin term foedus meant union, pact,
   voluntary agreement, or covenant. . . . Underlying the [federative]
   association we therefore find the principles of mutual consent,
   cooperation and partnership, applied to create a shared framework
   while preserving the integrity of each constituent party. (28)


The fundamental object of the federative pact or contract is the division of legislative powers between two levels of government that are autonomous, or not subordinated one to the other, with each level exercising exclusive legislative powers in defined areas. Once concluded, the pact is constitutionalized, making it unusually robust. It can only be amended with the consent of each level of government, since "the existence of a federative pact as a constitutional pact is justified, in the final analysis, by the existence of the peoples making up the member states". (29) If the constitutional court is the "pinnacle of the federal edifice", then the constitutional pact forms the foundation.

In construing the nature of the original pact, the constitutional court may rely initially on the express provisions of the federative constitution and in particular on the rules governing the division of powers between the federal and federate levels of government, which reflect the aggregative and segregative factors underlying the federative pact. It may also take into account some elements that are not in the constitutional text but that reveal the conditions in which the groups concerned established their federative links, such as the debates that led up to the signing of the pact.

The interpretation, application, and adaptation of the constitution by the constitutional court in its role as the arbiter of federative disputes may be considered by a majority or minority of citizens to modify the original federative pact, a situation that may create problems for the constitutional court's federative legitimacy.

2. Arbitral function and Evolution of the federative Regime

The judicial process of adapting the constitution to new societal conditions is part of the task of constitutional adjudication. It cannot have the effect of denaturing the original federative pact. This is especially true in connection with the rules relating to the division of legislative powers. As we mentioned above, these rules constitute a fundamental element in the founding regulatory contract of any federation.

(a) Federal/Federated Balance

Federalism is, first, an example of socio-political integration; a process of perpetual adaptation oscillating between the need for unity and the need for diversity, and between the centralization and decentralization of power. In the words of Bruno Theret:
   an "authentic" federal system can . . . be defined as a system
   which includes a self-preserving mechanism for the federal
   principle that permanently regulates the constitutive contradiction
   between unity and diversity: if unity triumphs over diversity, or
   if diversity triumphs over unity, the term federalism can hardly be
   seen to apply. (30)


In exercising its arbitral function, the constitutional court must, as a result, seek to maintain a degree of balance (31) between the particularist and universalist tendencies of the groups involved. Balance is the key concept in a federative context. Clearly, the perception of balance or lack of balance in a given situation will depend in part on how the person responsible for establishing or maintaining it views the concept of "balance", and from this standpoint it is subjective. It does not dictate a clear position, since federalism must be understood as a process--in other words, as an evolving and continually adapting model--rather than as a static system governed by immutable rules. (32) As a result, balance is an ideal to be achieved, rather than an absolute criterion. (33)

The essential nature of federalism also dictates the delicate task of establishing afair (34) weighting of the opposing forces. The value of unity will be essentially preserved if the federal government is able to exercise its legislative powers without significant interference from the federated governments, and vice versa for the value of diversity. At this point, the way in which the constitutional court settles federative disputes on the basis of what is seen as a suitable federal/federated balance will have a significant impact on any assessment of its federative legitimacy.

(b) National Majority/Minority Balance

A federative regime may be established "essentially, and distinctively, to guarantee rights and internal autonomy to certain minorities, even against the interests of the majority--however real and absolute--of citizens of the federation as a whole", (35) based on the political control of a federated entity. While uniting with other collectivities on the basis of shared interests, a national collectivity acquires legislative powers enshrined in the constitutional text that it can then exercise autonomously in certain areas connected with its distinct cultural identity. In a federation that includes a minority national collectivity, respect for the federative nature of the constitutional structure is vital, since this is what allows the minority to pursue its collective cultural aspirations at the political and legal levels.

At this point, when a majority nationalism coexists within a federation with one or more minority nationalisms, the question of the federal/federated balance becomes especially important. The arbitral function of the constitutional court in a multinational context must cover this aspect, or else the court's federative legitimacy may be called into question.

B. The Tridimensional Nature of Federative Legitimacy

In our opinion, the federative legitimacy of a constitutional court can be assessed from the triple viewpoint of institutional legitimacy, functional legitimacy, and social legitimacy, (36) but the assessment will only be valid if the dialogical relation between the three largely interdependent components is taken into account. This is because the scope of the guarantees that underlie the institutional legitimacy of the constitutional court is dependent on the importance of its role in the evolution of the federative regime. In addition, it is important to note that the notion of legitimacy always has a social dimension, since it is clearly founded "on the consent of the subjects". (37) Lastly, it must be remembered that each federative regime must "adjust [constitutional justice] to the particularities of its own political culture, which is a minimum and elementary condition for the legitimacy of any constitutional court". (38)

1. Institutional Legitimacy

Institutional legitimacy derives from the perception that the constitutional court is impartial and independent. In a federative context, the court must offer a sufficient guarantee of objectivity or neutrality to ensure that it is not seen as belonging exclusively to either the federal entity or the federated entities. It must have all the characteristics of an impartial arbiter. An assessment of the institutional legitimacy of a constitutional court is based on its legal status, its composition, and the method used to appoint its members.

(a) Legal Status of the Court

A constitutional court derives its basic legitimacy from its legal status. Since it must present itself as independent from both levels of government, its legitimacy will clearly be strengthened if its existence and powers are provided for in the federative Constitution. Charles Durand notes in this connection that:
   if the goal is to obtain an impartial court focused on ensuring
   that the legal point of view prevails in its actions, then the pact
   or constitution must expressly set all the essential
   rules--including the number of judges--to place its internal
   organization and its activities beyond the reach of the ordinary
   legislator. (39)


Since any federative pact requires the free and voluntary consent of the various entities that wish to join, it follows that these entities, by voluntarily supporting the federative constitution, also agree to the jurisdictional arrangements for the settlement of federative disputes by a constitutional court. It is accordingly more difficult to question the legitimacy of a court with constitutional status as compared to a court of merely statutory origin, since the first can be considered to enjoy the assent of the federated entities. On the other hand, if its status and attributes are largely dependent on the wishes of either level of government, the court will be more likely to be perceived as both judge and party in disputes involving the rights or interests of that level.

(b) Composition of the Court

The composition of the court is clearly a fundamental aspect in any examination of its institutional legitimacy. Since the composition of a constitutional court must be adapted to its mission, (40) which in a federative context specifically includes settling federative disputes, the ideal type of court would include parity-based membership with representation of both the federal and federated entities. Hans Kelsen, in his theory on federative parity, mentions that "it would be natural to require [the court] . . . to offer a guarantee of sufficient objectivity through parity-based composition". (41) Parity would help establish the legitimacy of the constitutional court.

However, the legitimacy of the constitutional court must also be based on three other objectives related to its composition: complementarity, pluralism, and representativeness. (42) Complementarity refers to the focus on balance in the professional experience of the judges, which helps reinforce the court's own credibility. Pluralism requires that "a particular trend or sensitivity cannot be the only one represented, otherwise the court will have no real legitimacy". (43) Representativeness, which lies close to pluralism, is reflected in the degree to which social diversity, whether national, cultural, linguistic, or other, is represented in the composition of the constitutional court. This last objective becomes even more important in the context of a multinational federative regime, and it becomes crucial when this regime includes a national majority/minority dynamic. The way with which the composition of the constitutional court is dealt depends on the specific context of each federative regime and on the nature of the original federative pact.

(c) Appointment of Members

Although the composition of the constitutional court may be defined by various constitutional or legislative standards, its legitimacy still depends substantially on the method used to appoint its members. (44) However, "no recruitment method appears able to guarantee, in itself, an aptitude [for impartiality] in the person recruited as a judge". (45) The legitimacy of the constitutional court is thus linked to the search for "a recruitment process that minimizes the risk of choices being dominated by favouritism, partisan concerns or a desire to obtain a court with an a priori leaning toward one or other political or economic option". (46)

Despite the range of approaches introduced by various societies, it appears that constitutional judges are always designated by the political authorities. (47) In a federative regime, since the ideal composition of the constitutional court is federal/federated parity, which provides a guarantee that the federative balance will be maintained, it follows that the federated entities should play a role in the designation of judges, alongside the federal entity. In a multinational context with a majority/minority dynamic, the same problem arises as noted in connection with the composition of the court. In short, the method used to appoint the members of the constitutional court is intrinsically linked to its legitimacy.

Despite the inherent imperfection of any one method for recruiting judges, there should:
   at least be some hope that [the constitutional court] will ensure
   respect for the legal foundations of the federation, and this is
   scarcely possible if an organ created and recruited to promote the
   political aspirations of a majority or party is given complete
   latitude, or if constitutional review is excluded, diminished or
   distorted. Distortion can result from the internal organization of
   the organ concerned. (48)


The institutional aspect of constitutional court legitimacy constitutes what can be described as the "basis of legitimacy", (49) to which a functional aspect must clearly be added. Just as the guarantees needed to found the institutional legitimacy of a constitutional court are closely linked to the importance of its functions with respect to the evolution of the federative regime, it is also possible to state that the manner in which those functions are exercised may depend to a large extent on the institutional characteristics of the constitutional court.

2. Functional Legitimacy

Functional legitimacy depends on the functions of the constitutional court being legitimately acceptable in terms of the guarantee of institutional legitimacy it provides. Since a federative dispute is constitutional in nature, a dispute submitted to the court is situated at the highest level, "where law and politics converge". (50) The importance of the role played by the constitutional court in the evolution of the federative regime determines its legitimacy. An assessment of functional legitimacy must look at the jurisdiction of the court, the type of constitutional review it exercises, the manner in which cases are referred, the paradigm used to construe laws, and the power of the last word.

(a) Jurisdiction of the Court

To understand the framework in which the constitutional court exercises its functions, it is important to determine its jurisdiction--in other words, its given mandate. Whether constitutional review is given to the court system as a whole, along with all of its other traditional tasks, or to a court specifically created for that purpose may influence the assessment of its legitimacy. In the first case, the task of interpreting and applying the Constitution is entrusted, in the last instance, to a supreme court which, located at the summit of the judicial pyramid, can be considered a constitutional court. In the second case, constitutional review is assigned to a specific organ created for that purpose, namely a constitutional court in the literal sense. Given the importance of its functions, its composition should not be the same as that of the ordinary courts, or else its legitimacy may be contested. (51) This is especially true in a federative regime.

The need to make a distinction between the two approaches to constitutional review in connection with the question of legitimacy stems from the fact that a supreme court's legitimacy as a court of law can help make up any deficit in its legitimacy as a federative court. This is not the case for a constitutional court based on the European model. However, a constitutional court is also responsible for reviewing the constitutionality of legislation in connection with fundamental rights and freedoms, and any assessment of the legitimacy of its arbitral function in federative disputes may be influenced by its perceived legitimacy with regard to fundamental rights.

In short, the jurisdiction of the court of last instance in federative disputes is a factor that must be taken into account when assessing the functional component of its legitimacy.

(b) Type of Constitutional Review Exercised and Method for Referring Cases

To support the constitutional court's legitimacy, the functions it exercises must be perceived as essentially jurisdictional, rather than political, in nature. However, the dividing line between the two spheres is not always well defined, and the procedure for launching a constitutional review may influence the perception of the jurisdictional nature of the court's functions and, as a result, have repercussions for the assessment of its legitimacy. It is important to remember that "an institution's legitimacy depends just as much on what it does as on what it is". (52) This means that the more opportunities a court has to exercise constitutional review, either by review on its own initiative or by an apriori review of rules as part of its consultative functions, the more likely it is to play a role in the evolution of the federative regime. It will therefore have to present a strong institutional guarantee of independence from political powers to preserve its legitimacy.

Review on the court's own initiative is one of the constitutional adjudication methods used by a constitutional court that presents the most problems with respect to the necessary demarcation between law and politics. As mentioned by Leon Duguit, "[i]f the highest court can intervene on its own initiative to spontaneously strike down any law it considers unconstitutional, it becomes a political organ that may become an overly powerful force within the state". (53) The court should, as a result, intervene only at the request of the parties to the dispute--in other words, when it is asked to do so. (54)

The possibility of exercising a priori constitutional review of the rules adopted by the political organs of the state--in other words, before they have been duly promulgated--may also be problematic in terms of the constitutional court's legitimacy. Since a dispute arises necessarily from the application of the law, constitutional review should, in principle, be exercised only a posteriori. In this area, the consultative function, generally based on a referral procedure, appears to be a form of a priori review, since it intervenes during the process for promulgating laws. This situation may expose the constitutional court to questions about the political nature of its role, which makes the issue of legitimacy even more central.

(c) Paradigm Used to Interpret Laws

The interpretation of laws involves a degree of creativity, and judges always have a discretionary margin in determining the meaning of legal rules. This margin is particularly evident in constitutional law. First, the general nature of the terms used in constitutional texts gives rise to a range of plausible meanings. Second, the constitutional texts seldom provide specific rules for solving particular problems, which leads judges to compensate for the absence or near-absence of guidance in the constitution itself. This is what Vilaysoun Loungnarath calls the indeterminacy and insufficiency of constitutional texts, both characteristics that "create a space in which the judicial decision is no longer objectively based on legal reasoning or the letter of the constitutional law. Inevitably, when a judge enters this space, some of the judge's own political values penetrate and influence the law". (55) The political nature of constitutional jurisprudence is evident. (56) The degree of imprecision and the age of the constitutional text have a major influence on the discretionary margin available to the judges in determining its meaning.

In federative disputes, the greater the latitude available for interpreting the constitutional text, the more likely the court will be to play a key role in the evolution of the federative regime and the more it will lay itself open to the charge "of illicitly taking the place of the constituent by defining or updating the standards of reference". (57) As a result, to preserve its legitimacy, the constitutional court must create a framework in the form of principles of interpretation, an activity that takes place outside the democratic process. The choice of paradigm used by the court to construe laws when deciding the meaning of a controversial legislative provision will have a determining influence on the impact of its role, and incidentally, on the question of its legitimacy.

Two main approaches to interpretation can be distinguished in the constitutional field: the original intent approach and the progressive approach. (58) In the first approach, the court emphasizes the intent of the constituent in determining the meaning of a provision in the constitutional text; in other words, it seeks to establish the original meaning and to take this meaning into account when adapting the text to match changes in society. In the second approach, if there is a gap between the constitutional text and the societal conditions to which it is meant to apply, the judge is authorized to take the place of the constituent and to select the constitutional prescriptions that are most suitable with regard to their political consequences. It is clear that the second approach to interpretation gives the constitutional court a far greater interpretative margin than the first. In addition, although it goes without saying that to give too much importance to the meaning of the terms of the constitution when it was passed, or to the context of the time, hinders the necessary adaptation of the text to current societal conditions, to ascribe little or no weight to constituent intent in construing the rules governing the division of legislative powers may be seen as denaturing the original federative pact and imperilling the court's legitimacy.

(d) Power of the Last Word

A range of theories have been advanced to designate the relations between a constitutional court and the political authorities in order to legitimize the exercise of constitutional review. (59) Whatever theory is applied, the theories' common factor is that "the legitimacy of the constitutional judge depends on that judge not having the last word". (60) In a democratic regime, the ultimate possibility of relaunching the constituent process legitimates the exercise of constitutional review. (61) However, one of the fundamental characteristics of a federative regime is the need for a complex amendment procedure (62) to guarantee the autonomy of the federal and federated levels of government and their spheres of jurisdiction. As a result, in a federative regime, the exercise of constitutional review may become an instrument for evolution over which the constituent powers have practically no influence. The only possible conclusion is that, in certain matters, the constitutional court may well have the power of the last word.

This possibility highlights the importance of the guarantees relating to the institutional legitimacy of the constitutional court, a fortiori if the court also has broad discretionary powers for the interpretation of legislation and multiple opportunities for exercising constitutional review. In this respect, the method used to appoint judges is crucial. (63)

3. Social Legitimacy

The social component remains the central element in the concept of legitimacy, and public recognition is its key ingredient (64)--a virtue granted, or refused, by an outside observer. Institutions and individuals cannot proclaim themselves legitimate. Whatever the legal regime underlying the constitutional court or the importance of its functions, public assent is the determining factor: "True approval for the legitimacy of constitutional justice is given or granted by public opinion. Public opinion ultimately consecrates or rejects the institution on the basis of its jurisprudence and its actions within the state." (65) In short, belief in the court's legitimacy is the overriding influence. (66)

Two remarks must be made concerning the question of the social legitimacy of a constitutional court in a multinational federative context. First, because legitimacy relies ultimately on public recognition, judges are encouraged to use legitimizing and rhetorical processes to justify their decisions: "The legitimization strategy is based on both an assessment of existing public opinion and an anticipation of public reactions to [their] decisions". (67) From this point of view, the use of the principles of constitutional interpretation will play an important role. The selection of one principle rather than another is left to the discretion of the judge, whose objective will be to persuade an audience that the decision is not only reasonable, but also justifiable in law. (68)

In a multinational federative context, and in the presence of a national majority/minority dynamic, taking public opinion into consideration means choosing the opinion of the majority over the opinion of the minority or minorities. As pointed out by Guy Scoffoni, "[t]he essential nature of constitutional oversight and, in particular, the protection of minorities, requires [instead] that the judge sometimes resist the majority opinion. The permanent challenge facing judges is to reconcile public opinion and constitutional principles . . .". (69) The more the court takes into account a diversity of viewpoints in construing and implementing the federative constitution, the more its activities will attract the popular support essential to its legitimacy. Federalism and the consubstantial notion of balance feature among the "constitutional principles" it must consider. (70)

Second, with regard to federative disputes, the degree of social legitimacy of a constitutional court can be assessed by analyzing the opinions and reactions not of citizens or citizen groups, but of their elected representatives. It is hard to conclude that a constitutional court enjoys a high degree of legitimacy when its legal status, functions, and decisions are a source of ongoing discord and contestation by the federal or federated levels of government.

II. LEGITIMACY OF THE SUPREME COURT OF CANADA AS THE ULTIMATE ARBITER OF FEDERATIVE DISPUTES

Since the 1960s, reform of the Supreme Court of Canada has been a recurring topic in the legal and political world. It has appeared on the agenda of major federal-provincial constitutional conferences, and it has been the focus of numerous reports and white papers. (71) Behind all the proposals for institutional reform to change the Supreme Court's legal status or composition, or the method for appointing its judges, lies a central issue: its legitimacy as Canada's highest general court of appeal. The effort expended over several decades to consider the status and role of the country's highest court tends to indicate that it faces a legitimacy deficit as a component of the Canadian legal system.

In Part II, we will attempt to gauge the degree of legitimacy granted the Supreme Court of Canada as the ultimate arbiter of federative disputes in light of the three dimensions outlined, above, in Section B. First, however, it is important to look briefly at the Court's arbitral function in light of the federative pact of 1867 and its subsequent evolution (Section A).

A. Arbitral Function of the Supreme Court of Canada

Section 101 of the Constitution Act, 1867, (72) gives the Parliament of Canada the power to create a general court of appeal for Canada, and in accordance with this provision the Supreme Court of Canada was established in 1875. (73)

In 1949, the possibility of appealing its decisions to the Judicial Committee of the Privy Council was abolished, making the Supreme Court the final court of appeal in all matters (74) and, as a result, the ultimate arbiter in federative disputes.

1. Original Federative Pact and Existence of a Quebec Nation

The Canadian state came into being in 1867 after four British colonies in North America (75) expressed the wish to unite under a federative form of government. (76) One of the determining centrifugal factors in the choice of the federative principle as the foundation for the new constitution was the presence, in Quebec, of a strong national group that aspired to retain its political autonomy in all matters relating to its cultural identity, within a structure that would lead to the emergence of a shared political nationality. (77)

For Quebec, the opportunity for a dual national allegiance (to Quebec and to Canada) was at the heart of the Canadian federative project. The birth of the Canadian nation was perceived in Quebec as a way to ensure and promote not only the survival, but also the growth of intra-state cultural identities. The new nation would not take the place of particularity and pluralism, but rather would emerge and develop at their side. Respect for the federative principle and the autonomy of each level of government in the exercise of its legislative powers was indissolubly linked to Quebec's desire to ensure the survival and growth of its distinct cultural identity within the new Canadian national collectivity.

What was the nature of the pact ? Who were the parties to the contract? What were the conditions? An in-depth examination of all aspects of the theory of the federative pact falls outside the scope of this paper, but it has been undertaken several times by various authors. Suffice it to say that beyond the pact between four British colonies can be found a binational pact, the requirements of which dictated the content of the political pact (78) later ratified by an act of the British Parliament. In the Province of Canada (which comprised today's Quebec and Ontario), long before the preConfederation conferences, the national groups were identified with the territories each occupied as a majority: Quebec, for the French Canadians, and Ontario, for the English Canadians, with each geopolitical entity being considered home to a distinct culture. (79) The addition of the two maritime provinces to the planned federation did not alter this cultural bipolarity.

The two nations party to the federative pact are, first, the English-Canadian nation concentrated in three of the original provinces (Ontario, New Brunswick, and Nova Scotia) and, second, the French-Canadian nation strongly concentrated in the Province of Quebec. The tendency to believe that a federative compromise was reached between all French Canadians and all English Canadians, wherever they were established, is unfounded. All the pre-Confederation negotiations were conducted between territorial entities populated by a majority of individuals from a specific culture, rather than between two groups uniting all French speakers on the one hand and all English speakers on the other. The question of protection for the rights of the cultural minorities in each colony, in other words the rights of English speakers in Quebec and of French speakers in the other provinces, only arose once the federative form of the Constitution had been defined. In this respect, protection for the intra-provincial French- or English-speaking minorities was not an essential condition for the compromise that led to the adoption of a federative regime.

The main concern of Quebecers and their political leaders in connection with the proposed scheme was the adoption of the federative principle as the foundation for a new system of government. (80) This was the condition sine qua non for their support for the new constitution and the constitutional guarantee of their survival and growth as a distinct people. The goal they sought, through federation, was to strengthen their nation by recovering the powers they had lost through legislative union, since Quebec was the only geopolitical entity in which they had a clear majority. In the words of A.I. Silver, "Everything . . . seemed to indicate that Quebec alone was to be the arena of French-Canadian national life, that within the federal alliance, Quebec was to be the French-Canadian country". (81)

The 1867 federative regime emerged from a confrontation of various ideologies and various visions for the new planned country. (82) A series of compromises ensured the support of the colonies and led to the birth of a new nation. From this point of view, the 1867 federative regime appears to have been an agreement or pact joined by all the colonies concerned.

The main conditions of the federative pact were as follows: the adoption of a federative principle was the key condition set by Quebec, which in exchange was willing to concede to the demands of Ontario and the maritime provinces for proportional representation in the lower house of the federal Parliament. For the maritime provinces, equal representation in the Senate and the construction of an intercolonial railway were the most pressing concerns.
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Title Annotation:Introduction through II. Legitimacy of the Supreme Court of Canada as the Ultimate Arbiter of Federative Disputes A. Arbitral Function of the Supreme Court of Canada 1. Original Federative Pact and Existence of a Quebec Nation, p. 47-73
Author:Brouillet, Eugenie; Tanguay, Yves
Publication:University of British Columbia Law Review
Date:Jan 1, 2012
Words:6365
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