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 and opposing litigants – and governments often wield this power strategically. Through a reference case, elected officials can insert the courts and the judiciary into political debates that can be both contentious and normative. Seeking the Court’s Advice is the first in-depth study of the reference power, drawing on over two hundred reference cases from 1875 to 2017. With novel insight and analysis, Kate Puddister demonstrates 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
Kate Puddister is an associate professor of political science at the University of Guelph and the author of Seeking the Court’s Advice: The Politics of the Canadian Reference Power.Emmett Macfarlane is an associate professor of political science at the University of Waterloo. Among his publications are Constitutional Amendment in Canada; Policy Change, Courts, and the Canadian Constitution; and Constitutional Pariah: Reference re Senate Reform and the Future of Parliament.
Contributors: Richard Albert, Gerald Baier, Stéphanie Chouinard, Brenda Cossman, Erin Crandall, Minh Do, Kerri A. Froc, Dave Guénette, Mark S. Harding, Lori Hausegger, Matthew Hennigar, Ran Hirschl, James B. Kelly, Kiera Ladner, Philippe Lagassé, Samuel V. LaSelva, Andrea Lawlor, Rebecca Major, Félix Mathieu, Andrew McDougall, Danielle McNabb, Eleni Nicolaides, Jeremy Patzer, Troy Riddell, Kent Roach, Peter H. Russell, Joshua Sealy-Harrington, Tamara A. Small, Dave Snow, Cynthia Stirbys, Mark Tushnet
this is an excellent book that completely fills a major and unfortunate lacuna in the academic literature. It is well organized, well written, thorough and balanced, and it winds up with recommendations for better squaring the practice with judicial independence concerns.
A first book, you say, and by a very junior author? It certainly doesn’t read that way—this is a polished work of mature scholarship. I recommend it highly.
~Peter McCormick, Canadian Journal of Political Science
[Puddister] manages to provide a superb and comprehensive analysis of the development, evolution, and purposes of the reference power.
~Emmett Macfarlane, associate professor, University of Waterloo, The Review of Constitutional Studies
…Seeking the Court’s Advice will likely affect the way the power is exercised and conceived of by governments, interveners, and courts.
~Jennah Khaled, JD, Osgoode Hall Law, Osgoode Hall Law Journal