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May Advocate 2017

THE ADVOCATE V O L . 7 5 P A R T 3 M A Y 2 0 1 7 375 may be circumvented by a referendum.37 Our court explained why referenda do not fit easily in our constitutional arrangements: The argument that the Constitution may be legitimately circumvented by resort to a majority vote in a … referendum is superficially persuasive, in large measure because it seems to appeal to some of the same principles that underlie the legitimacy of the Constitution itself, namely, democracy and self-government. In short, it is suggested that as the notion of popular sovereignty underlies the legitimacy of our existing constitutional arrangements, so the same popular sovereignty that originally led to the present Constitution must (it is argued) also permit “the people” in their exercise of popular sovereignty to secede by majority vote alone. However, closer analysis reveals that this argument is unsound, because it misunderstands the meaning of popular sovereignty and the essence of a constitutional democracy. Canadians have never accepted that ours is a system of simple majority rule. Our principle of democracy, taken in conjunction with the other constitutional principles discussed here, is richer.38 Ms. Miller’s detractors would do well to bear in mind the richness of the UK’s democratic principles, in particular the role that the constitution accords to Parliament as the democratically elected representatives of “the people”. For observers on this side of the pond, Miller thus provides valuable lessons not only on the role of prerogative powers, political conventions and referenda, but also more fundamentally on the separation of powers between Parliament and the executive, and the role of the courts in guarding it. ENDNOTES 1. 2017 UKSC 5 Miller. 2. Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5, preamble. 3. R (Miller) v Secretary of State for Exiting the European Union, 2016 EWHC 2768 (Admin). 4. Miller, supra note 1 at para 3. 5. Ibid at para 41. 6. Ibid at para 43. 7. Ibid at para 48. 8. Ibid at para 47. 9. (2001), 54 OR (3d) 215 (CA). 10. Miller, supra note 1 at para 55. 11. Ibid at para 56, citing JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry, 1990 2 AC 418 at 500 (HL). 12. Miller, supra note 1 at para 5. 13. (UK), c 68. 14. Miller, supra note 1 at para 83. 15. Ibid at para 87. 16. Ibid at para 177. 17. Ibid at para 259. 18. Ibid at para 246. 19. SC 2007, c 30. 20. See e.g. Canada (Prime Minister) v Khadr, 2010 SCC 3. See also Operation Dismantle v The Queen, 1985 1 SCR 441. 21. 2015 FCA 4. 22. Miller, supra note 1 at para 3. 23. Ibid at paras 3–4. 24. Ibid at paras 136–140. 25. Ibid at paras 141–143. 26. Ibid at para 146. 27. Ibid at para 148. 28. Ibid. 29. Ibid at para 151. 30. Jon Stone, “Nicola Sturgeon Announces Second Scottish Referendum”, The Independent (13 March 2017), online: <www.independent.co.uk/news/uk/ politics/second-scottish-independence-livereferendum nicola-sturgeon-brexit-speech-secondindy ref-2-uk-eu-a7626746.html>. 31. Miller, supra note 1 at paras 116, 120. 32. Ibid at para 118. 33. Ibid at para 121. 34. Ibid at para 124. 35. 1998 2 SCR 217 Secession Reference. 36. Ibid at para 153. 37. See ibid at para 75. 38. Ibid at paras 75–76. t t t t t


May Advocate 2017
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