What are constitutional Reference cases?

Reference cases are legal questions submitted by the federal government (under section 53 of the federal Supreme Court Act) or by provincial governments (to their provincial Court of Appeal under provincial statutes) to the courts for advisory opinions. Reference opinions are technically non-binding but are treated as authoritative by courts and governments and are nearly always followed in practice. Reference cases are a distinctive feature of Canadian constitutional practice without close analogue in many other Westminster democracies.

Federal references are submitted by the Governor in Council (Cabinet) under section 53. The Supreme Court of Canada is required to consider the questions submitted and provide reasons. Federal references are typically used for constitutional questions that are politically sensitive (where the government wants advance clarification before legislating) or where ordinary litigation would be impractical. The federal government has submitted more than 100 reference questions since Confederation. Recent federal references include the 2014 Reference re Senate Reform (which ruled that constitutional changes to the Senate require constitutional amendment) and the 2021 Reference re Greenhouse Gas Pollution Pricing Act (which upheld federal carbon pricing).

Provincial references are submitted by the Lieutenant Governor in Council to the Court of Appeal. Decisions of provincial courts of appeal on reference questions can be appealed (or referred) to the Supreme Court of Canada. Notable provincial references include the 1981 Patriation References by Manitoba, Quebec, and Newfoundland (which ruled that federal patriation required substantial provincial consent as a constitutional convention but not as a strict legal requirement), the 2004 Reference re Same-Sex Marriage by the federal government, and recent provincial references on the Greenhouse Gas Pollution Pricing Act in Saskatchewan, Ontario, and Alberta.

Reference cases differ from ordinary litigation in several ways. There are no parties in the traditional sense; instead, governments often appoint amicus curiae (friends of the court) to argue different sides of the question. Hearings can be expedited, with the Court delivering reasons within months rather than years. The Court has discretion to decline to answer reference questions that are too vague, hypothetical, or not justiciable, though the Court rarely exercises this discretion. References are particularly useful for resolving constitutional questions that affect multiple jurisdictions or policy areas. Provincial sovereigntists occasionally argue that the federal reference power gives federal governments unfair advantage in constitutional disputes; defenders argue that references provide an efficient way to clarify constitutional law without years of expensive litigation.