Reference Question

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) 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.