Reference question

For reference questions in the context of libraries, see Reference interview.

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 opinions 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.

Notable Federal Reference Questions

There have been over 75 federal references since 1892. Some of the most notable include:

• Reference re Securities Act, 2011
• Reference re Same-Sex Marriage, 2004
• Reference re Secession of Quebec, [1998] 2 S.C.R. 217
• Reference re Quebec Sales Tax, 1994
• Reference re Ng Extradition, 1991
• Reference re David Milgaard Conviction, [1992] 1 S.C.R. 866 (April 14, 1992)
• Reference re Manitoba Language Rights (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. Coffin, [1956] S.C.R. 191
• Reference re Persons of Japanese Race, [1946] S.C.R. 248
• Re Eskimos, 1939
• Reference re Alberta Statutes [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 Act, [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 Reference, 1982
• Reference re Resolution to Amend the Constitution, [1981] S.C.R. 753 (The Patriation Reference).

Notable Imperial Reference Questions

• Labrador Boundary Reference, 1927

External links

• L'Utilisation de la Procédure de l'Avis Consultatif devant la Cour Suprême du Canada: Essai de Typologie