Seeking the Courts Advice: The Politics of the Canadian Reference Power

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 Courts 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.