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Courts Without Cases

The Law and Politics of Advisory Opinions

By: Carissima Mathen
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Published: 18-04-2019
Format: EPUB eBook (?)
Edition: 1st
Extent: 304
ISBN: 9781509922505
Imprint: Hart Publishing
RRP: £31.49
Online price : £25.19
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About Courts Without Cases

Since 1875, Canadian courts have been permitted to act as advisors alongside their ordinary, adjudicative role. This book offers the first detailed examination of that role from a legal perspective.

When one thinks of courts, it is most often in the context of deciding cases: live disputes involving spirited, adversarial debate between opposing parties. Sometimes, though, a court is granted the power to answer questions in the absence of such disputes through advisory opinions (also called references). These proceedings raise many questions: about the judicial role, about the relationship between courts and those who seek their 'advice', and about the nature of law.

Tracking their use in Canada since the country's Confederation and looking to the experience of other legal systems, the book considers how advisory opinions draw courts into the complex relationship between law and politics.

With attention to key themes such as the separation of powers, federalism, rights and precedent, this book provides an important and timely study of a fascinating phenomenon.

Table Of Contents

1. Courts with Cases
What Do Courts Do?
The Power, and Limits, of Cases
The Separation of Powers
Separation of Powers in Canada
2. Apex Courts
The Judicial Committee
'A Judicial Department in Every Well-Organized Government'
A. Confederation
B. Establishment
3. Canadian References
Framing the Function
Early Quiet, Early Reform
Squaring Advisory Opinions with a General Court of Appeal
Putting the 'Advisory' in an Advisory Function
4. Separate Functions – Separate Powers
Executive Requests and Judicial Resistance
The Lonely Legislature?
5. Arbitrating Federalism
Federalism Post-Confederation
A. Treaties
B. Disallowance
C. Marriage
Apex Change – The Revamped Court
A. Natural Resources
B. Infl ation and Emergency
C. Inter-provincial Trade
Current Battles
A. Criminal Law
B. Economic Regulation
C. Environment and Development
6. Rebirth, and Rupture
Supreme at Last
Constitutional Rebirth
A. The Path to Change
B. Patriation
C. Consequences: Quebec Veto
7. Interpretation and Rights
Prologue: Process and Persons
An Age of Rights
A. Fundamental Justice and Criminal Fault (Motor Vehicle)
B. The Rule of Law (Manitoba Language)
C. Competing Constitutional Interests (Bill 30)
D. Revisiting Past Decisions (Prostitution)
E. The Intersection of Individual Rights, Federalism and Politics (Same-Sex Marriage)
8. Institutions
Rupture, for Real: Quebec Secession
Amendment, Actors and Judicial Supremacy
A. Frozen in Time: Senate Reform
B. Self-entrenchment
9. Actors, Advice and Law
The Core Tension
Why Pursue?
A. Doctrinal Guidance
B. Co-ordination
C. Strategy
D. Imprimatur
Why Not Comply?
Why Comply?
10. The Advisory Court
Authority, Precedent, Stare Decisis
Providing Answers
A. Abstract Review
B. Answers, Declarations, Remedies


“This book is the first in-depth study of the profound impact on Canadian constitutional law produced by judicial “advisory opinions” issued in response to the direct “reference” of legal questions to the courts by governments. From the Persons case to the Secession Reference, reference opinions have come to dominate the Canadian constitutional landscape. But the reference procedure has been oddly overlooked by constitutional scholars-until now. For Carissima Mathen, this unusual point of legal procedure is the vehicle for a magisterial exploration of the history, politics, theory, and practice of constitutionalism in Canada. Courts Without Cases is a brilliant contribution to the literature on Canadian constitutional law and politics.” –  Professor Mark D Walters, McGill University,

Courts Without Cases is a lucid, original, insightful and highly readable contribution to our understanding of law and politics. References brought by Government to the Supreme Court have led to many of the most important Supreme Court decisions, from same-sex marriage to Quebec's secession, from the regulation of prostitution, guns and financial markets to the composition of the Senate and the Supreme Court itself. Mathen masterfully weaves the story of these significant judgments with the political and institutional dynamics which shape them.” –  Lorne Sossin, Professor and Dean Emeritus Lorne Sossin, Osgoode Hall Law School, York University,

“All in all, this book is a very welcome contribution to our understanding of the roles and workings of courts and of the dynamics between law and politics, especially in common law settings.” –  Venkat Iyer, Ulster University, The Commonwealth Lawyer

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