Can Parliament legalize same-sex marriage? Can Quebec unilaterally secede from Canada? Can the federal government create a national firearms registry? Each of these questions is contentious and deeply political, and each was addressed by a court in a reference case, not by elected policy makers. Reference cases allow governments to obtain an advisory opinion from a court without a live dispute or opposing litigants – and governments often wield this power strategically. The first study of its kind, Seeking the Court’s Advice draws on over two hundred reference cases from 1875 to 2017 to show that the actual outcome of a reference case – win or lose – is often secondary to the political benefits that can be attained from relying on courts through the reference power.
Introduction: Reference Cases as a Mix of Law and Politics
1 Origins and Implications of the Reference Power
2 Contestation and Reference Cases
3 Routine Politics and Nonroutine Litigation: References after 1949
4 “It’s Always a Little Bit of Politics”: Why Governments Ask Reference Questions
5 Why Not Refer Everything? The Padlock Act and Blasphemy
6 Seeking the Court’s Advice and the Delegation of Decision Making
Conclusion: A Legal Solution to Political Problems
Appendix A: Canadian Reference Legislation
Appendix B: Reference Case List
Notes; References; Index
In this timely, original, and outstanding book, Kate Puddister explores a neglected yet enduring and vital dimension of the judicialization of politics in Canada – the ability of cabinets to seek the advice of the highest courts through the reference procedure. In Seeking the Court’s Advice, Puddister clearly demonstrates, through a comprehensive analysis of every reference submitted since Confederation, the political calculations that motivate cabinets to submit constitutional questions to the court. This important book will be of great interest to Canadian and comparative scholars of federalism, parliamentary democracy, and the judicialization of politics.
James B. Kelly, professor of political science, Concordia University, and co-author of Parliamentary Bills of Rights: The Experiences of New Zealand and the United Kingdom
Reference cases have an outsized influence on constitutional law and politics in Canada. Seeking the Court’s Advice explains how references are used as a political tool, why democratic elites are ceding decision-making authority to the courts, and how this practice affects Parliament, the executive, and the judiciary. This book makes a significant contribution to our understanding of law, politics, and democracy in Canada.
Matthew A. Hennigar, associate professor of political science, Brock University