Reference Cases/The Judicial Advisory Process and Federalism

Reference Cases/The Judicial Advisory Process and Federalism
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Institution
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Introduction
Increasingly, Canadians consider the judiciary to be critical on policy matters. The citizens look to the judiciary, rather than the legislature for finality on critical matters affecting the country. The Westminster parliamentary system indicates that a blending of powers exemplified in the executive and legislature is the origin of law and policy. However, the increasing cases of divisive partisanship and ideological decision making make governments cautions of developing policies that can be termed by the public as controversial. This is especially true when an election is approaching. When governments find themselves handling difficult decisions on matters pertaining to public policy, they have sought the opinion of courts. They have allowed the courts to rule on the legality or constitutionality of laws including those under consideration and if need be, return those laws to the legislature for further consideration. The mechanism through which this happens is called the advisory opinion or reference question. In Canada, a reference is a duty of the Supreme Court of Canada (SCC) Act. The legislation governing the application of a reference question enables the Governor-in-Council in the appropriate legislation to pose an issue of legal-political essence with the prospect that an appropriate advisory opinion will be given and hence guide the government in the legal and constitutional aspects of the issue under discussion. While judicial advisory opinions have been widely used in Canada, they have been unable to resolve intergovernmental relations and conflict resolution amicably.
Background
a) The Reference Power
The mechanism of reference cases is somehow unique to Canada. While the Supreme Court Act gets the reference feature from the emulation of the British common law, the UK does not use the reference power at the present. Similarly, courts in other common law jurisdictions like Australian and the United States have not been empowered to issue advisory opinions. However, it is worth noting that some states in the United States do allow the governor or the state legislature to ask questions. Similarly, civil law jurisdictions possess mechanisms to advise the government on constitutional issues, but none of them has in place the executive-centered approach applied in Canada, that reserves reference questions as the sole mandate of the executive through the Governor-in-Council. The introduction of the Supreme Court Act in 1875, the SCC, its predecessor, and the respective executives have produced more than 200 reference questions. The content of the advisory opinions has covered various aspects, with most of them focusing on matters of constitutional importance. Indeed, it is difficult, in any constitutional democracy, to find the highest court called upon to make a decision aimed at resolving a mega constitutional struggle. While Canada has held to reference cases, it is important to note that the results of these cases are technically non-binding. Thus implies that individuals are not bound to adhere to the advice of the court on the issues it addressed.[Moench, Lucas. "State Court Advisory Op...