Reference question


In Canadian law, a reference question or reference case 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.

Constitutional and statutory authority

Constitutionality of the reference jurisdiction

There have been challenges to the power of the federal government to confer the reference jurisdiction on the Supreme Court, but these challenges have been rejected, most recently in the Reference re Secession of Quebec in 1998.
Pursuant to the ruling of the Judicial Committee of the Privy Council in Attorney-General of Ontario v. Attorney-General of Canada A.C. 571, the role of the courts in references is not judicial as such, but one of advising the executive branch of government.

Federal reference questions

There have been over 75 federal references to the Supreme Court since 1892. Prior to the abolition of appeals to the Judicial Committee, many of the earlier federal references went on appeal from the Supreme Court to the Judicial Committee. Since the abolition of appeals, the Supreme Court decision is the final say on a federal reference.
The early Supreme Court reference decisions were not published, and the question posed to the Court was answered individually by each justice either affirmatively or in the negative. By 1885, the Supreme Court had considered eight reference questions. Three were from the Senate of Canada concerning private bills, two on the interpretation of the Canada Temperance Act, one regarding prisoners in the New Brunswick penitentiary, one regarding courts in British Columbia, and one regarding the McCarthy Act, relating to a national alcohol licensing system. Snell and Vaughan note that the early justices reluctance to provide written reasons in reference decisions was a reason for the limited reference use in early Canadian history.

Decisions by the Supreme Court

The provincial governments have the power to refer legal issues to their courts as well. Prior to the abolition of appeals to the Judicial Committee, those reference questions could be appealed directly to the Judicial Committee, by-passing the Supreme Court. Since the abolition of appeals to the Judicial Committee, there is a right of appeal from the provincial courts to the Supreme Court on a provincial reference.

Initial decisions by the provincial courts