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Distributed for University of British Columbia Press

Seeking the Court’s 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 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.

290 pages

Law and Society


Table of Contents

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

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