The Supreme Court Act gives the federal Cabinet the power to refer questions of law to the Supreme Court of Canada. [4] The Supreme Court then has jurisdiction to hear the reference, as does an appeal. The Attorney General of Canada participates in a federal reference. Provincial and territorial attorneys general have the right to intervene, and interested parties can request to intervene. The parties submit detailed written observations to the Court, which then holds a hearing. As a rule, it reserves its decision and then issues a written statement. It is for the Court to refuse to answer questions which are too ambiguous or which do not give a meaningful answer. If the request is considered a request for opinion, it will be assigned an AOR number and published. Provincial governments and some territories have the same power to refer matters to their highest courts of appeal for comment. This power is defined in their respective statutes, which define the powers of the courts of appeal.
The Supreme Court Act provides an automatic right of appeal from a decision to refer a court of appeal to the Supreme Court of Canada. State courts are not subject to the Article III case or the controversial restriction of the U.S. Constitution. [11] However, many state courts are prohibited by their own constitutions from issuing advisory opinions, although there are often specific exceptions to these restrictions. Some states, such as Rhode Island, allow the governor to appeal questions about the constitutionality of laws to the state Supreme Court. In addition, some states require their Supreme Court to provide advisory opinions on certain matters, such as: Whether proposed amendments to the state constitution violate the U.S. Constitution. 2. Notwithstanding the provisions of Article 131, the President may submit to the Supreme Court a dispute of the type referred to in this reservation for opinion, and the Supreme Court, after hearing, shall report to the President on its opinion at its discretion.
An opinion offers some legal protection to any person who: Before the meeting at which the Commission is to consider an opinion, the Commission publishes all draft replies to the request for an opinion. This section has been used six times in the following cases where the Cabinet has sought the opinion of the Supreme Court on hypothetical cases relating to the interpretation of constitutional provisions: three questions under sections 36 and 55 of the Constitution (1977); Four questions under article 55 of the Constitution (1977); reference to the Constitution; Article 55 of the Constitution (2003); reference to the Constitution; On dual nationality and other issues (2004); With regard to articles 55 and 45 (and articles 36 and 40) of the Constitution (2007); and Articles 55 and 45 (and Articles 36 and 40) of the Constitution (2008). [7] Subsequent precedents and practices have confirmed the prohibition of expert opinion, but have raised some questions about its scope. In Chicago & Southern Air Lines v. Waterman S.S. of 1948 Corp., the court rejected a private party`s request to review an executive order of the Civil Aeronautics Board, which was really only a recommendation to the President for his final trial.16Footnote33 U.S. 103 (1948). The Court stated that a judicial decision on this issue would be an advisory opinion in its most repugnant form – an opinion not sought by the President, which is offered at the request of a private litigant on a matter that admittedly falls within the exclusive and final control of the President.17FootnoteId.
at 113. Although the Court`s refusal to act was partly due to the risk of interference with the President`s authority, the Court also clarified that this was not the only relevant factor, since the judiciary had decided quickly and wisely that it would not issue advisory opinions, even at the request of the Chief Executive.Footnote Id. In general, advisory opinions are not binding, but can influence the development of international law. According to the ICJ website, Opinion: Anyone can request an opinion as long as the applicant is concerned with the matter they are submitting. An applicant may not request an advisory opinion on another person`s activities, hypothetical situations or general legal issues. submit comments on a written request to the Office of the General Counsel within ten days of the publication of the request for advice. In a letter to President George Washington in response to the president`s request for such an opinion, then-Chief Justice John Jay responded that it would violate the separation of powers for the Supreme Court to issue such an opinion, noting that the president could rely on the advice of anyone in the executive branch under Article Two of the U.S. Constitution.
which expressly allows the President of the United States to “seek advice. in writing from the senior official of each of the executive departments on any matter relating to the functions of their respective offices. In other words, Jay informed President Washington that the president should contact the attorney general and perhaps other cabinet secretaries if they need legal advice regarding U.S. law. More than a century later, the court dismissed a lawsuit because there was no “real controversy” between the parties; Therefore, any opinion expressed would be advisory. [9] [10] State courts are not subject to the constitution`s case or controversy requirement and may therefore issue advisory opinions as long as their state constitutions permit. See, for example, the opinion of the Massachusetts Supreme Court on registered partnerships. 11 CFR 112.1(a)–(f)Requests for Expert Advice Federal courts cannot issue advisory opinions because of the Constitution`s requirement for case or controversy. An application is not considered a complete notice if it: In 2017, there were 28 requests for advisory procedures. An advisory opinion is a legal opinion addressed to the United Nations or to a specialized agency by the International Court of Justice under Article 96 of the Charter of the United Nations. All requests for expert advice, comments on proposals, and drafts (including appendices) will be made available to the public online and in the FEC`s Public Archives Room. If the request is not a requirement for expert opinion, the Office of the General Counsel will inform the applicant of the specific deficiencies in the request.
An applicant may appear before the Commission at a public meeting at which the Commission considers its request for an opinion. An applicant may withdraw a request for an opinion by submitting a written declaration of resignation before the Commission votes on approving the opinion. If at least four Commissioners vote in favour of a review of the opinion, the opinion is annulled and the Commission then examines the content of the original application. An expert opinion is the non-binding legal interpretation of a court. It reflects the opinion of a court on a point of law submitted by a legislator, official or other court. Parties seeking expert advice tend to do so to better understand their chances of potential litigation before risking the costly litigation process. In Canadian law, the preliminary ruling mechanism corresponds to expert expertise. The International Court of Justice is empowered to give advisory opinions under Chapter IV of its Statute (Annex to the Charter of the United Nations) when requested by certain organs or agencies of the United Nations. These opinions are not binding. If at least four Commissioners do not vote to approve a draft opinion in response to a request, the Commission`s Office of the Advocate General will send a letter to the applicant stating that the Commission has not been able to approve an opinion. This letter is also entered in the public registry.
Some commentators also argue that the exact meaning of the prohibition on advisory opinions was unclear in the twentieth century, as the Court used the term to refer to a number of different restrictions on federal courts.24FootnoteSee Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 Harv. 603, 648 (1992); see also Wright, Miller, & Cooper, 13 Fed. Prac. & Proc. Juris. § 3529.1 (3rd ed.) (Discussion of the various uses of the term). First, the Court has used this term in relation to the limits of enforceability of federal courts under Article III, such as litigation or locus standi.25Footnote, for example, Preiser v. Newkirk, 422 U.S.
395, 401 (1975) (noting that the exercise of judicial power under Art. III of the Constitution depends on the existence of a case or controversy and that this is linked to the absence of power to issue advisory opinions); North Carolina v.