The Supreme Court in Canada's Constitutional Order

The majority opinion in the Supreme Court Act Reference tells a story about the role of the Supreme Court of Canada within the Canadian constitutional order. The story chronicles the evolution of the Court since Confederation, culminating in the conclusion that the Court and some of its key features are now essential to the Constitution of Canada. This account relies on well-established ideas in Canadian constitutionalism, in particular, that the constitutional work of the Court is captured by the metaphors of 'umpire' and 'guardian', and that the Court is the final legal voice on matters of constitutional interpretation. This paper contests the narrative told in the Reference, arguing that the story tidies up Canadian constitutionalism in ways that cultivate an inaccurate account of the Supreme Court's relationship to the constitution. In particular, the account overestimates the supremacy of the Court's constitutional interpretations and understates the nature of the Court's role in constitutional disputes. Moreover, it mischaracterizes the stability of the Court's position in the constitutional architecture. That position is not enshrined at the apex of a legal pyramid, but rather shifts within the architecture of the constitution as interpretive authority is taken up by a range of decision-makers. Ultimately, the arguments offered in this paper do not target the outcome of the Reference. Instead the aim is to enrich the starting point for assessing the ways in which the Court might -- and might not -- be 'constitutionally essential'.