Assignment 1: Constitutional & Institutional Reforms in Canada Should Canada put an end to the use of reference questions and restrict judges’ opinion to only matters of actual controversy as is the...

Constitutional & Institutional Reforms in Canada
Topic: Should Canada put an end to the use of reference questions and restrict judges’ opinion to only matters of actual controversy as is the case in the USA?
Abstract:
This article works towards the divergent approaches to the legal reference question in USA and Canada. For this, a reference is a hypothetical law question posed to the court of law. In Canada, there is reference acceptance whereas there is prohibition of same in United States as it violates the separation of unconstitutional and powers doctrine under United State Constitution’s Article III. So, the question arises weather there should be elimination of this by Canada along with limiting judges to give opinion on actual controversy matters, as it can be seen in the United States or not.
Introduction:
A reference question is basically the submission asking court for advice by either provincial government or federal government in any major legal problem or issue. A court does not have liability on the rule on a reference question, instead the results obtained from such questions are known as advisory opinion guiding the government in determination of the meaning of law or the constitutionality of the defined action course (Gerald Rubin). Answer by court to reference question is not binding however. As per Canadian law, a reference case or abstract review or the reference question includes the questions concerning the legislation’s constitutionality. These reference questions also tend to provide authoritative, timely as well as cost effective advice on the proposed legislation’s constitutionality. Obtaining the opinion of court by reference procedure is way more economic and less costly in compared to future constitutional challenge after law being passed. But the reference opinions of the courts are not binding legally; however, no government ignored them till date.
Restricting the opinion of judges to matter only for actual controversy means there is nonbinding law interpretation by the court. It states that court’s opinion regarding the legal question as submission done through the government official, legislature or any other court. Advisory opinions cannot be issues by the Federal courts because of the case or controversy requirement by the constitution. Further, the oats needs judges to disregard their personal opinions about the legal issues, political, social and scrupulously to follow the law. The demand from the judicial impartiality is that the rule of law does exist even if the judge strongly holds personal view or even if he disagrees vehemently with the law.
The supreme court of US has done determination that the controversy or case as required by the Article III of constitution by US prohibiting the US federal courts from issuance of advisory opinions. Similarly, before hearing of case in the court, it should find well that there is a tangible interest from the parties towards matter at stake. Also, the presented issue must be mature enough for the judicial resolution or a justicibale or ripe issue needs to be kept before court of law throughout the lawsuit course. On the other hand, state courts are not subject to Article III of US constitution controversy or case limitation. However, there have been ba
ing of several state courts for issuance of the advisory opinion by own constitution of them. Also, some exceptions to these limitations may be seen. Furthermore, some states do require...