Since 1875, Canadian courts have been required to hear proceedings in the absence of a live case and to render “advisory opinions”. Initially modelled after a similar function in the Judicial Committee Act 1833, the reference jurisdiction has produced extraordinary constitutional “moments”. References have been critical to Canadian law. They involve the same kinds of legal reasoning, and settle the same sorts of questions, that cases do. Yet, references occupy uncertain legal terrain. Because they do not trigger a court’s normal remedial powers, advisory opinions do not create legal obligations in the ordinary sense. Yet, political actors obey them, even when those actors strongly disagree with the outcome, and even when the outcome itself proceeds from a deeply divided panel. In other words, references exert considerable, and unmistakeable, legal authority. In this talk, I canvass a number of issues pertaining to this intriguing function. While the specific focus is the Canadian experience, the project’s premise is that the reference jurisdiction may reveal broader insights about present-day judicial review.
Assoc Prof Carissima Mathen – Speaker
Carissima Mathen is Associate Professor of Law at the University of Ottawa, where she specialises in constitutional and criminal law. Prior to law teaching, Professor Mathen was counsel to a noted public interest organization, the Women's Legal Education and Action Fund (LEAF), where she worked on precedent-setting equality rights cases. Her recent scholarship includes “The Federal Principle” (Constitutional Amendment in Canada, UTP), “The Shadow of Absurdity and the Challenge of Easy Cases: Looking Back on the Supreme Court Act Reference” (Sup Ct L Rev) and “Crowdsourcing Sexual Objectification” (Laws). Professor Mathen’s current research focuses on the reference jurisdiction of Canadian courts. She is the co-author of Women, Law and Equality: A Discussion Guide (Irwin, 2010). Numerous courts, including the Supreme Court of Canada, have cited her scholarship. A native of Montreal, Professor Mathen holds degrees from McGill University, Osgoode Hall (York) and Columbia Law School. As one of Canada’s most active legal commentators, she regularly appears on television, radio and in print.
Mr James Lee – Chair
James Lee is Senior Lecturer in Private Law at The Dickson Poon School of Law at King’s College London, and an Associate Academic Fellow of the Inner Temple.