The dangers of the reference question: SCC v. SCOTUS.

JurisdictionUnited States
AuthorMikhaiel, Mark Mina
Date22 March 2016

ABSTRACT: This article deals with diverging approaches to the question of a legal reference in Canada and the United States. A reference is a hypothetical question of law posed to a court. In Canada references are accepted whereas in the United States they are prohibited as violating the separation of powers doctrine and unconstitutional under Article III of the U.S. Constitution. Canada should eliminate the reference procedure and limit judges to opine on matters of actual controversy, as is the case in the United States.

TABLE OF CONTENTS I. Introduction II. Roadmap III. Definition of Reference Question IV. Jurisdiction of the SCC V. Constitutional? VI. Binding? VII. Effective? VIII. Abuse? IX. Treatment of Advisory Opinions in the United States X. Conclusion I. INTRODUCTION

In American law schools, first-year students are taught the parameters of judicial power. (1) The exercise of judicial power in the United States is limited to "cases" and "controversies." (2) Thus, the U.S. Constitution precludes the judicial arm from offering advisory opinions. (3) This is because, as Justice Frankfurter stated, "it is extremely dangerous to encourage extension of the device of advisory opinions to constitutional controversies, in view, of the nature of the crucial constitutional questions and the conditions for their wise adjudication." (4) In a broad sense, the reasoning for this is that "the statutory and constitutional elements of jurisdiction are an essential ingredient of separation and equilibration of powers, restraining the courts from acting at certain times, and even confining them from acting permanently regarding certain subjects." (5) Indeed, the Supreme Court of the United States ("SCOTUS") has opined that granting advisory opinions, which is when a court "pronounce[s] upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires." (6) Chief Justice Roberts, writing for the majority in Hollingsworth v. Perry, reiterated that Article III, Sec. 2 of the U.S. Constitution is vitally important in limiting the judiciary's power, as it forbids judges from becoming policymakers and "ensures that [they] act as judges." (7) Thus, SCOTUS has unequivocally admonished the idea of rendering advisory opinions.

In contrast to the U.S. judiciary, the Canadian judicial branch actively engages in policy creation. This is especially evident in the Supreme Court of Canada's ("SCC") use of advisory opinions, i.e., "reference questions." (8) A reference question is defined as a request for an advisory opinion, which is granted before actual litigation regarding the validity of proposed action or legislation. Because of its strategic usage of advisory opinions, some scholars have referred to the SCC "as a court of law and a political court." (9)


    In Part I, this paper defines a reference question as implemented in Canada. Part II, III and IV provides a brief background on the constitutional and historical roots of reference questions and examines the current implementation of the reference procedure by the SCC and its authoritative effect. Part V and VI examine the positive and negative effects of the reference procedure, and the abuse of the device by the executive and legislative branches. Part VII analyzes the constitutional policies admonishing advisory opinions in the United States. Finally, part VIII concludes that Canada should eliminate the reference procedure and limit judges to opine only on matters of actual controversy, as in the United States.


    Prior to conducting an analysis on the nature of the reference question, a working definition is required. As discussed above, the term "reference question" is synonymous with "advisory opinion," which has been defined as follows:

    Nonbinding statement by a court of its interpretation of the law on a matter submitted for that purpose. [American] Federal courts are constitutionally prohibited from issuing advisory opinions by the case-or-controversy requirement, but other courts, such as the International Court of Justice, render them routinely. (10) The opening words of this definition point most clearly to the blatant characteristics of the advisory opinion. A "nonbinding statement by a court of its interpretation of the law" is characterized by two main features: (i) it cannot be a decision by a court on the actual merits, and (ii) there is an absence of rival litigants." That is, the advisory opinion is rendered not on demand of a complaining party, but on demand of an administrative body. A "reference question" is defined as "the act of sending or directing to another for information, service, consideration or decision; esp., the act of sending a case to a master or referrer for information or decision." (12) In other words, a "reference question" is the formal request for an advisory opinion.

    Equipped with an understanding of these terms, let us turn our attention to the statutory jurisdiction of the SCC.


    The Supreme Court Act ("SCA") authorizes the SCC to render reference opinions on proposed questions of law that are submitted by legislators and other governmental officials, even though they are not actually presented in the form of a concrete case at law. Section 53 of the SCA provides:

    (1) The Governor in Council [i.e., the federal cabinet] may refer to the Court for hearing and consideration important questions of law or fact concerning:

    (a) the interpretation of the Constitution Acts;

    (b) the constitutionality or interpretation of any federal or provincial legislation;

    (c) the appellate jurisdiction respecting educational matters, by the Constitution Act, 1867, or by any other Act or law vested in the Governor in Council; or

    (d) the powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective governments thereof, whether or not the particular power in question has been or is proposed to be exercised.

    (2) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning any matter, whether or not in the opinion of the Court ejusdem generis with the enumerations contained in subsection (1), with reference to which the Governor in Council sees fit to submit any such question.

    (3) Any question concerning any of the matters mentioned in subsections (1) and (2), and referred to the Court by the Governor in Council, shall be conclusively deemed to be an important question. (13)

    In the seminal case, In Re Secession of Quebec, (14) the SCC concluded that it had both the authority and duty to issue reference opinions. (15) In its opinion, the SCC noted that since the Canadian Constitution does not require a strict separation of powers, both Parliament and provincial legislatures "may properly confer certain judicial functions on the courts." (16) In addition, the SCC determined that it had the authority to render such an advisory opinion on the proposed separation of Quebec from Canada, since secession involved a "legal question touching and concerning the future of the Canadian federation." (17) As the SCC was (and still is) not under the same "case and controversies" requirement like the SCOTUS, it did not have to wait until the conclusion of the Quebec referendum prior to opining on the legality of the proposed referendum.


    Though the rendering of advisory opinions may appear to constitute an ultra vires act, answers to reference questions are unequivocally constitutional. However, in the 1910 References by the Governor-General in Council, every province except for Saskatchewan moved that the SCC ought not deliberate on certain issues, such as the validity of the Insurance Act. The provinces reasoned that this should be the case because a court cannot properly consider these matters or by the individual members thereof in the proper execution of their judicial duties. (18) On appeal, Lord Loreburn, writing for the Board of Commerce, rebuffed their concerns, as follows:

    The provinces ... say that when a Court of Appeal from all the provincial Courts is authorized to be set up, that carries with it an implied condition that the Court of Appeal shall be in truth a judicial body according to the conception of judicial character obtaining in caviling countries and especially obtaining in Great Britain, to whose Constitution the...

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