Talk:Reference question

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Accuracy?[edit]

I'm not sure, but I think the first sentence of this article is erroneous in a couple of respects. First, a reference by a provincial govt is not necessarily made to the Court of Appeal; for example, in BC it can be made either to the BCSC or the BCCA[1]. Second, the article states in effect that a reference question necessarily relates to some issue of constitutional law. That's usually true, but not necessarily; see subsection 53(2) of the Supreme Court Act[2]. --Mathew5000 20:33, 27 May 2006 (UTC)[reply]

Yeah, it looks like you are right. Most provinces I checked are able to send the question to Superior or Appellate courts. I'm not certain, however, if a provincial reference question can be anything other than constitutional law question, but it is the case for federal reference questions. --PullUpYourSocks 20:46, 27 May 2006 (UTC)[reply]

Looking at the B.C. legislation [3] I don't see anything that would limit a reference to constitutional issues. --Mathew5000 21:03, 27 May 2006 (UTC)[reply]

The Milgaard Reference is one example of a federal reference on non-constitutional legal issues. --Mathew5000 21:03, 27 May 2006 (UTC)[reply]

I'm not disputing whether the federal government can ask a question on non-constitutional matter; clearly they can. I'm just not certain on whether the provinces can do the same. They are, after all, called the Constitutional Questions Acts, and there is no specific wording in the Acts that define what types of questions. Presumably they should be able to do the same as the federal government, but without any explicit words allowing it or any supporting case law, I wouldn't necessarily count on it. --PullUpYourSocks 21:32, 27 May 2006 (UTC)[reply]

The title to the Act is simply that, a title. The substantive powers are set out in the body of the Act. The scope of the reference power will depend on the wording of the provision in each provincial statute creating the reference power.Mr Serjeant Buzfuz (talk) 14:02, 3 July 2011 (UTC)[reply]

external links[edit]

The link to the DOJ backgrounder is dead, but the document is archived on the Wayback Machine [4]. --Mathew5000 21:05, 27 May 2006 (UTC)[reply]

unique to Canada?[edit]

The reference procedure is a Canadian invention, but have any other countries adopted it? I think I remember reading that South Africa now has a reference procedure but that might be my imagination.--Mathew5000 21:12, 27 May 2006 (UTC)[reply]

I have no idea, but that's a very interesting question. I've heard a number of times that when South Africa adopted their constitution in 1996 they borrowed quite heavily from Canada. It would make sense that they may have adopted the reference question as well. --PullUpYourSocks 21:32, 27 May 2006 (UTC)[reply]

The reference procedure is not unique to Canada. The provision for references in the Supreme Court Act of 1875 was based on a provision of the Act governing the Judicial Committee of the Privy Council. The reference procedure is used occasionally by the British government, but it does not play nearly the same role in the British system as the reference procedure does in Canada.Mr Serjeant Buzfuz (talk) 14:02, 3 July 2011 (UTC)[reply]

Here's an article I came across that discusses reference procedures in countries other than Canada: [5] --Mathew5000 19:14, 28 May 2006 (UTC)[reply]

Also at para. 13 of the Quebec Secession Reference, the SCC says that in two U.S. states, Alabama and Delaware, there is statutory authority for state courts to render advisory opinions.--Mathew5000 19:41, 28 May 2006 (UTC)[reply]

Also known in India : s. 143 of the constitution; examples of Indian reference cases are the Kerala Education Bill, 1957 case and the third of the Three Judges Cases.----Bancki (talk) 12:19, 7 August 2014 (UTC)[reply]

additional cases: federal or provincial questions?[edit]

I want to add the following cases, but I'm not sure they all belong to the 'federal question' section:

decided by the Privy Council:

Local Prohibition Case (1896)

Fisheries Reference [1898] A.C. 700 #

In re Initiative and Referendum Act [1919] A.C. 935 (provincial question from Manitoba) #

A.G. Quebec v Nipissing Central Railway Company ("Railway Act Reference") [1926] AC 715 #

Fish Canneries Reference (1929)

Radio Reference (1932)

Aeronautics Reference (1931)

Proprietary Articles Trade Association v. Attorney General of Canada (1931)

Labour Conventions Reference (1937) (one of six cases listed at Employment and Social Insurance Act#1936 "New Deal" Decisions by the Supreme Court of Canada and the Judicial Committee of the Privy Council #)

Ontario (Attorney General) v. Canada Temperance Federation (1946) (provincial question that went from the Court of Appeals of Ontario to the Privy Council)

Attorney-General for Ontario v. Attorney-General for Canada, [1947] A.C. 127 (appeal to privy council can be abolished by federal act) #

decided by the Supreme Court:

Reference re Waters and Water-Powers [1929] SCR 200 #

Reference re Companies’ Creditors Arrangement Act (1934)

Reference re Powers of Disallowance and Reservation [1938] SCR 71 (followed by Reference re Alberta Statutes) # — Preceding unsigned comment added by Bancki (talk • contribs) 13:41, 7 August 2014 (UTC)[reply]

Reference re Offshore Mineral Rights of British Columbia [1967] S.C.R. 792 #

Reference re Canada Assistance Plan (B.C.) (1978) (provincial question)

Re Residential Tenancies Act, 1979 (1981)

Reference re Seabed and subsoil of the continental shelf offshore Newfoundland [1984] 1 S.C.R. 86 #

Reference re Ownership of the Bed of the Strait of Georgia and Related Areas [1984] 1 S.C.R. 388 (provincial question from B.C.) #

Re B.C. Motor Vehicle Act (1985) (provincial question)

Reference re Public Service Employee Relations Act (Alta.) (1987) (provincial question)

Reference re Bill 30, An Act to Amend the Education Act (Ont.) [1987] 1 S.C.R. 1148 (provincial) #

Prostitution Reference (1990)

Reference re Canada Assistance Plan (B.C.) (1991) (provincial question)

Reference re Milgaard [1992] 1 S.C.R. 866 #

Reference re Public Schools Act (Man.) [1993] 1 S.C.R. 839 (provincial question) #

Bancki (talk) 20:27, 6 August 2014 (UTC); # additions ----Bancki (talk) 12:04, 7 August 2014 (UTC)[reply]

Good idea! Just skim thorugh the articles; if it says the questions were referred to the Supreme Court, then they're Federal Reference questions; if they were referred to the provincial court of appeal, then they're provincial reference questions. I've added a category for JCPC cases under the provincial reference question section. Mr Serjeant Buzfuz (talk) 03:16, 7 August 2014 (UTC)[reply]

A possible imperial reference, but I do not find another source but [6] is the Ontario-Manitoba Boundary Case (1884)----Bancki (talk) 08:22, 7 August 2014 (UTC)[reply]

I doubt the relevance of the distinction federal/provincial question when I see that both 1984 seabed references would end up in a different section (the BC reference was provincial, the NFL was federal)----Bancki (talk) 08:22, 7 August 2014 (UTC)[reply]

the reason for the distinction is that it is significant to remember which level of government originated a particular reference. For instance, I've seen repeated suggestions here and elsewhere that the Patriation Reference was referred to the Supreme Court by the federal government. It wasn't; it was a provincial initiative, referred to provincial courts of appeal. Knowing the source of a particular reference is an important aspect of the reference process as a legal-political initiative; it's not just the result that is important. Mr Serjeant Buzfuz (talk) 14:21, 7 August 2014 (UTC)[reply]