was available to it because of choices made by the political branches of government. (The
Court would, of course, have maintained the theoretical power of judicial review had the
Clarity Act been passed first, but it would have lost its agenda-setting power, and most likely
would have been in the position of giving only an up-or-down approval to the bill.) More
importantly, the Court could not plausibly be seen as an “independent” arbiter between the
interests of the federal government and the government of Quebec. The government of
Canada could “surrender” power quite secure in the knowledge that the Supreme Court—
whose members, after all, were unilaterally appointed by Prime Ministers strongly opposed
to Quebec secession—would side with the interests of the federal government. The power
exercised in this case, therefore, cannot usefully be described as “independent.” The
Supreme Court was structurally dependent on the political branches is at least two important
respects: first, the fact that the legislature could have removed the court’s agenda-setting
power by simply taking the legislative initiative, and secondly because the judges were
appointed by the federal government, therefore weeding out judges likely to side with
provincial interests in a case of such magnitude (although autonomous courts should be
expected to weigh the claims equally.)
This does not mean, however, that the concept of judicial independence is wholly
irrelevant to this sequence of events. First of all, the reference power does give the courts
some measure of autonomy, albeit one that is significantly constrained. Although the action
of courts is generally predictable within a particular range of outcomes, and in this case was
similar to the preferences of the federal government, there is always some risk involved.
Indeed, this can be seen in a reference to the courts during the ratification process for the
Charter of Rights and Freedoms. A peculiar feature of the 1867 Canadian constitution is
that it lacked an amending formula; the conditions for changing the codified constitution,
Convention