A Question They Can't Refuse? Canadian Reference Questions and Judicial Independence

Authors

  • Kate Puddister University of Guelph

DOI:

https://doi.org/10.24124/c677/20191602

Keywords:

reference questions, judicial independence, judicial review

Abstract

This paper addresses one aspect of the very important but understudied Canadian reference power. More specifically, it examines the frequency at which Canadian appellate courts refuse to answer all questions submitted in a reference case and under what conditions courts refuse to answer through analysis of an original dataset of all Canadian appellate court reference cases from 1949 to 2017. Addressing this question of how often and under what conditions courts refuse to answer reference questions is central to understanding how reference power operates, as the statutory foundation for the power does not provide courts any discretion to refuse questions submitted by the executive. This lack of discretion and the reference power itself, raise several concerns for judicial independence. This paper considers the implications for judicial independence brought on by the reference power. This paper argues that courts should have the power to refuse to answer questions that are considered inappropriate to safeguard the independence of the judiciary when participating in the extrajudicial function of reference cases.

Author Biography

Kate Puddister, University of Guelph

Assistant Professor Department of Political Science

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Published

2021-01-23

How to Cite

Puddister, K. (2021). A Question They Can’t Refuse? Canadian Reference Questions and Judicial Independence. Canadian Political Science Review, 13(1), 34–71. https://doi.org/10.24124/c677/20191602

Issue

Section

Articles