For the last 150 years, Canadian courts of general jurisdiction have exercised a special function. At the request of the executive, they issue advisory opinions in the absence of a live “case or controversy”. Borrowed from the 1833 Judicial Committee Act, but absent from the U.K. domestic context as well other Anglo-American systems, advisory opinions have been critical to Canadian jurisprudence and, in particular, to its constitutional law. They are so familiar that a basic tension at their core has become obscured. The tension arises from the asymmetry between references' formal and practical status. Formally, such opinions as “non-binding” – they do not provide independent reasons for compliance by other actors. In actual practice, though, they are treated as though they do. Drawing upon Chapter 9 of my book (forthcoming, Hart), the paper discusses what created and explains this tension, and what it can reveal about the nature of authority and about law as such.
We look forward to welcoming you on July 3-5, 2023 for our Annual Conference entitled "Islands and Ocean: Public Law in a Plural World." The conference will take place at the Victoria University of Wellington, in New Zealand.Call For Papers and Panels