Abstract

The way in which the Supreme Court of Canada deals with politically controversial cases suggests that the Court is self-defining of its role in constitutional litigation, and more broadly in the constitutional order. Recent litigation involving same-sex marriage and the public health care system demonstrates the problem. In the context of same-sex marriage, the Court had no choice but to hear a reference from the government of Canada seeking advice, yet the Court purported to exercise a discretionary power not to answer the most important question before it: whether or not limiting marriage to opposite-sex couples infringed the Canadian Charter of Rights and Freedoms. In the context of the public health care system, the Court had a choice, and it chose to hear an appeal on the constitutionality of Quebec legislation designed to protect the public monopoly on heath care. Having elected to hear that case, however, the Court failed to reach a majority decision on the Charter question, and the failure appears to have been deliberate. Having deprecated the "passive virtues" and rejected a political questions doctrine, the Supreme Court of Canada nevertheless exercises considerable discretion in dealing with politically controversial cases. It is concerned, among other things, with preserving its political capital in the context of a constitutional order that has become increasingly dependent on its decisions.