Resumen de Courts Without Cases: The Law and Politics of Advisory Opinions Seeking the Court’s Advice: The Politics of the Canadian Reference Power
Advising has always been so pervasive in governments that, like water to a fish, it may seem barely noticeable by virtue of its very omnipresence and, perhaps for this reason, does not receive the scholarly attention it deserves. One form of such advising is governments seeking advice from the judiciary, widely practiced despite modern concerns over separation of powers and judicial independence. In Canada, the federal and all provincial governments may seek advisory opinions from courts under what is known as the reference jurisdiction. It is surprising, then, that relatively few law journal articles, and until now no books, have offered comprehensive studies of the reference power.1 That deficiency has been corrected by the two books reviewed here. Carissima Mathen2 and Kate Puddister3 reveal, in their studies of the Canadian reference power, the extraordinary capacity of the Canadian executive to exploit the advisory opinion process and the broad judicial—and public—acceptance of that capacity. Canadian advisory opinions have addressed such fundamental constitutional questions as the right of a province unilaterally to secede from Canada, the nature and limits of judicial review, and the validity of same-sex marriage.4 It was by reference that in 1929 the Judicial Committee of the Privy Council (the JCPC, then Canada’s apex court) overruled a Supreme Court decision and held that women may serve in the Senate.5 The JCPC, rejecting arguments about the original intent of the British North America Act, established by this reference the “living tree” doctrine now central to Canadian constitutionalism, holding that the Constitution of Canada is “capable of growth and expansion within its natural limits.”6 Indeed, between 1867 (when the British North America Act created the Dominion of Canada) and 1986, “references accounted for one-quarter of the Supreme Court’s constitutional docket.”7
