Reference question
Encyclopedia
In Canadian
law
, a Reference Question is a submission by the federal or a provincial
government to the courts asking for an advisory opinion
on a major legal issue. Typically the question concerns the constitutionality of legislation.
The federal government, under the Supreme Court Act
, may submit a question to the Supreme Court of Canada
. Interested parties are able to apply for intervener
status to make submissions during the hearing and where necessary the Court may appoint an amicus curiae
to submit a factum to support a particular view. The opinion given by the Supreme Court is in the form of a judicial decision but is not legally binding; nevertheless, no government has ever ignored the opinion.
The provincial governments, under their respective Constitutional Questions Acts, are able to submit questions to the provincial Superior Court or Court of Appeal. The process is very similar to the federal government reference questions, however, with any opinion the government has the right to appeal to the Supreme Court of Canada.
Pursuant to the ruling of the Judicial Committee of the Privy Council
in Attorney-General of Ontario v. Attorney-General of Canada (Reference Appeal) [1912] A.C. 571, the role of the courts in references is not judicial as such, but one of advising the executive branch of government. Other jurisdictions, notably Australia and the United States, eschew reference jurisdiction for their courts. In the U.S., the case or controversy
clause of Article III of the United States Constitution limits federal courts to hear only actual cases; advisory opinion
s are not permitted at the federal level (although some state constitutions
do provide for such opinions). Likewise, the Australian Constitution has a similar requirement in Chapter III of the Constitution
. The procedure has been adopted in Papua New Guinea
whose constitutional convention immediately prior to independence took counsel from Canadian legal academics.
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
law
Law of Canada
The Canadian legal system has its foundation in the British common law system, inherited from being a former colony of the United Kingdom and later a member of the Commonwealth of Nations. Quebec, however, still retains a civil system for issues of private law...
, a Reference Question is a submission by the federal or a provincial
Provinces and territories of Canada
The provinces and territories of Canada combine to make up the world's second-largest country by area. There are ten provinces and three territories...
government to the courts asking for an advisory opinion
Advisory opinion
An advisory opinion is an opinion issued by a court that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law. Some countries have procedures by which the executive or legislative branches may certify important...
on a major legal issue. Typically the question concerns the constitutionality of legislation.
The federal government, under the Supreme Court Act
Supreme Court Act
The Supreme Court Act is an Act passed by the Parliament of Canada which established the Supreme Court of Canada. It was originally passed in 1875 as the Supreme and Exchequer Courts Act...
, may submit a question to the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
. Interested parties are able to apply for intervener
Intervener
In law, intervention is a procedure to allow a nonparty, called intervenor to join ongoing litigation, either as a matter of right or at the discretion of the court, without the permission of the original litigants...
status to make submissions during the hearing and where necessary the Court may appoint an amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
to submit a factum to support a particular view. The opinion given by the Supreme Court is in the form of a judicial decision but is not legally binding; nevertheless, no government has ever ignored the opinion.
The provincial governments, under their respective Constitutional Questions Acts, are able to submit questions to the provincial Superior Court or Court of Appeal. The process is very similar to the federal government reference questions, however, with any opinion the government has the right to appeal to the Supreme Court of Canada.
Pursuant to the ruling of the Judicial Committee of the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
in Attorney-General of Ontario v. Attorney-General of Canada (Reference Appeal) [1912] A.C. 571, the role of the courts in references is not judicial as such, but one of advising the executive branch of government. Other jurisdictions, notably Australia and the United States, eschew reference jurisdiction for their courts. In the U.S., the case or controversy
Case or controversy
The Case or Controversy Clause of Article III of the United States Constitution has been deemed to impose a requirement that United States federal courts are not permitted to hear cases that do not pose an actual controversy — that is, an actual dispute between adverse parties which is capable of...
clause of Article III of the United States Constitution limits federal courts to hear only actual cases; advisory opinion
Advisory opinion
An advisory opinion is an opinion issued by a court that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law. Some countries have procedures by which the executive or legislative branches may certify important...
s are not permitted at the federal level (although some state constitutions
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
do provide for such opinions). Likewise, the Australian Constitution has a similar requirement in Chapter III of the Constitution
Chapter III Court
In Australian constitutional law, Chapter Three Courts or Chapter III Courts are courts of law which are a part of the Australian federal judiciary, and thus are able to discharge Commonwealth judicial power...
. The procedure has been adopted in Papua New Guinea
Papua New Guinea
Papua New Guinea , officially the Independent State of Papua New Guinea, is a country in Oceania, occupying the eastern half of the island of New Guinea and numerous offshore islands...
whose constitutional convention immediately prior to independence took counsel from Canadian legal academics.
Notable Federal Reference Questions
As of 2005, there have been 75 federal references since 1892. Some of the most notable include:- Reference re Same-Sex Marriage, 2004
- Reference re Secession of QuebecReference re Secession of QuebecReference re Secession of Quebec, [1998] 2 S.C.R. 217 was an opinion of the Supreme Court of Canada regarding the legality, under both Canadian and international law, of a unilateral secession of Quebec from Canada....
, [1998] 2 S.C.R. 217 - Reference re Quebec Sales Tax, 1994
- Reference re Ng ExtraditionReference re Ng ExtraditionReference Re Ng Extradition was a 1991 case in which the Supreme Court of Canada held that it was permissible to extradite a fugitive to a country in which he might face the death penalty...
, 1991 - Reference re David Milgaard Conviction,
[1992] 1 S.C.R. 866 (April 14, 1992) - Reference re Manitoba Language RightsReference re Manitoba Language RightsReference re Manitoba Language Rights [1985] 1 S.C.R. 721 was a reference question posed to the Supreme Court of Canada regarding provisions in the Manitoba Act stipulating the provision of French language services in the province of Manitoba...
(1984), [1985] 1 S.C.R. 721 - Reference re Upper Churchill Water Rights Reversion Act, 1984
- Reference re Authority of Parliament in Relation to the Upper House, [1980] 1 S.C.R. 54 (The Senate Reference)
- Anti-Inflation Reference, 1976
- Reference re Regina v. CoffinCoffin affairThe Coffin affair was an event in Canadian history in which a man named Wilbert Coffin was hanged for the murder of three men. The affair started in June 1953 in Gaspésie when three men from Pennsylvania were reported missing...
, [1956] S.C.R. 191 - Reference re Persons of Japanese RaceReference re Persons of Japanese RaceReference re Persons of Japanese Race [1946] S.C.R. 248 is a famous decision of the Supreme Court of Canada where the Court upheld a government order to deport Canadian citizens of Japanese descent.-Background:...
, [1946] S.C.R. 248 - Re EskimosRe EskimosRe Eskimos [1939] S.C.R. 104, is a decision by the Supreme Court of Canada regarding the constitutional status of Canada's Inuit people, then called "Eskimos." The case concerned section 91 of the Constitution Act, 1867, then the British North America Act, 1867, which assigns jurisdiction over...
, 1939 - Reference re Alberta StatutesReference re Alberta StatutesReference re Alberta Statutes [1938] S.C.R. 100, also known as the Alberta Press case and the Alberta Press Act Reference, is a landmark reference of the Supreme Court of Canada where several provincial laws restricting the press were struck down and the existence of an implied bill of rights...
[1938] S.C.R. 100
Notable Provincial Reference Questions
- Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457
- Reference re Firearms ActReference re Firearms ActReference re Firearms Act, [2000] 1 S.C.R. 783, 2000 SCC 31, is a leading constitutional decision of the Supreme Court of Canada on the division of powers regarding firearms legislation and the Canadian Firearms Registry...
, [2000] 1 S.C.R. 783 - Reference re Provincial Court Judges, 1997
- Reference re Goods and Services Tax, [1992
2 S.C.R. 44] - Quebec Veto ReferenceQuebec Veto ReferenceQuebec Veto Reference [1982] 2 S.C.R. 793 is a Supreme Court of Canada opinion on whether there is a constitutional convention giving the province of Quebec a veto over Amendments to the Constitution of Canada...
, 1982 - Reference re Resolution to Amend the Constitution, [1981] S.C.R. 753 (The Patriation Reference).
Notable Imperial Reference Questions
- Labrador Boundary Reference, 1927