There is one significant exception to the general rule that constitutional disputes are decided in the course of ordinary litigation. The Supreme Court Act provides that the federal government may refer directly to the Court questions of law or fact concerning the interpretation of the constitution or the constitutionality or interpretation of any federal or provincial legislation.5There is similar legislation in each province permitting provincial governments to refer questions to the provincial Court of Appeal.6References have become a familiar and distinctive feature of Canadian constitutional law.7Most countries that follow the common law tradition do not permit references, and the device has been rejected as unconstitutional in both the United States8and Australia9and exists only
in a very different and modified form in England.10Technically, a reference asks the court for an advisory opinion and, accordingly, the answer given by the court lacks the formal quality of a judgment for purposes of the doctrine of precedent. However, in practice, opinions rendered on references are almost invariably followed in subsequent litigation and treated in the same way as a judgment given in an ordinary case.
References have often been used when a government considers it to be in the public interest to have an immediate resolution by the appellate court of a constitutional issue. The procedure circumvents the normal process of trial, appeal, and further appeal to the Supreme Court of Canada and allows the government to obtain a relatively quick answer to a constitutional issue. It is also possible for one government to direct a reference as to the constitutionality of another government’s law or proposed course of action. There are important examples of this being done by the federal government,11and the technique has also been used by provincial governments.
The most notable instance of a provincial reference with regard to a proposed federal course of action arose in connection with the patriation of the constitution in 1981.12The federal government had indicated that it would proceed to request the United Kingdom Parliament to amend the Canadian constitution, although it had the consent of only two of the ten provinces. Three provincial governments referred the question to their courts of appeal, and those cases were then appealed to the Supreme Court of Canada, which ruled that constitutional convention precluded the federal government from proceeding in the manner proposed. The result was that all governments were sent back to the bargaining table for a further round of talks and negotiation, and significant changes were made to the constitutional amendments that were eventually enacted.13The most...