The Canadian Reference Power: Delegation to the Courts and the Navigation of Federalism

Abstract

Abstract The Canadian reference power allows governments to ask appellate courts for an advisory opinion without a live dispute. Reference cases have been an important element of Canadian federalism since their creation in 1875 but have not been subject to a comprehensive analysis. Shifting the focus to understanding government decisions to rely on the courts to navigate federalism, this article has two objectives. First, through analysis of an original dataset of Canadian appellate reference cases from 1875 to 2017, the article provides an examination of how references have been used by governments, with particular attention to issues related to federalism. Second, the article considers how the reference power can be employed as a political strategy by governments. The reference power demonstrates clear support for the blame avoidance and credit-claiming thesis and provides compelling evidence on how the dynamics of intergovernmental relations can shape a government’s decision to delegate decision-making to the courts.