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An advisory opinion of a court or other government authority, such as an election commission, is a decision or opinion of the body but which is non-binding in law and does not have the effect of adjudicating a specific legal case, but which merely legally advises on its opinion as to the constitutionality or interpretation of a law. The International Law Association is one such commission that provides non binding opinions and advisory documents regarding aspects of international law. Some countries have procedures by which the Executive branch or legislative branches may refer questions to the judiciary for an advisory opinion. In other countries or specific jurisdictions, courts may be prohibited from issuing advisory opinions.
The Supreme Court Act gives the federal Cabinet the power to refer questions to the Supreme Court of Canada on any questions of law. Supreme Court Act , R.S.C. 1985, c. S-26, s. 53. The Supreme Court then has jurisdiction to hold a hearing on the reference, just like an appeal. The Attorney General of Canada participates in a federal reference. The provincial and territorial Attorneys General have the right to intervene, and interested parties may apply to intervene. The parties make detailed written submissions to the Court, which then holds a hearing. It typically reserves its decision, later releasing a written opinion. The Court has a discretion to refuse to answer questions which are too ambiguous or will not provide an answer with any meaning.
The Provincial governments and some of the territories have a similar power to refer questions to their highest appeal courts for an opinion. This power is set out in their respective provincial laws defining the powers of the appellate courts. The Supreme Court Act gives an automatic right of appeal from a reference decision of a provincial Court of Appeal to the Supreme Court of Canada.
This article has been put to use on six occasions, in the following cases, in which the Cabinet sought an advisory opinion from the Supreme Court on hypothetical cases relating to an interpretation of constitutional provisions: Three Questions Referred under Articles 36 & 55 of the Constitution (1977); Four Questions Referred under Article 55 of the Constitution (1977); Constitutional Reference; In re Article 55 of the Constitution (2003); Constitutional Reference; In re Dual Nationality and Other Questions (2004); In the Matter of Article 55 & 45 (and Article 36 & 40) of the Constitution (2007); and In the Matter of Article 55 & 45 (and Article 36 & 40) of the Constitution (2008). Selected case law of the Supreme Court of Nauru, Pacific Islands Legal Information Institute
In Constitutional Reference; In re Dual Nationality and Other Questions (2004), Chief Justice Barry Connell made the following remarks in relation to the nature of article 55:
In a letter to President George Washington, replying to the president's request for such an opinion, then-Chief Justice John Jay replied that it would violate the separation of powers for the Supreme Court to provide such an opinion, noting that the president could rely on advice from anyone within the executive branch under Article Two of the United States Constitution which expressly permits the President of the United States to "require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices." In other words, Jay informed President Washington that the President ought to turn to the Attorney General and perhaps other Cabinet secretaries when they require legal advice concerning American law. Over a century later the Court dismissed a case because there was no "actual controversy"
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Statutory or constitutional provisions in Alabama, Colorado, Delaware, Florida, Maine, Massachusetts, Michigan, New Hampshire, Oklahoma, Rhode Island, and South Dakota allow their highest courts to issue advisory opinions in some circumstances. See RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 50-51 (7th ed. 2015). Several other states, including Kentucky, Minnesota, Missouri, and Vermont, once allowed for advisory opinions by statute or constitution, but have since abandoned the practice.Jonathan D. Persky, Note, ‘‘Ghosts that Slay”: A Contemporary Look at State Advisory Opinions, 37 CONN. L. REV. 1155, 1168-69 (2005).
Advisory opinions should not be confused with certified questions by one court to another, which are permissible. U.S. federal courts, when confronted with real cases or controversies in which the federal court's decision will turn in whole or in part on a question of state law (e.g. diversity cases under the Erie doctrine or issues in which federal law incorporates state law by reference, such as exemptions in bankruptcy), occasionally ask the highest court of the relevant state to give an authoritative answer to the state-law question, which the federal court will then apply to its resolution of the federal case (see e.g. Pullman abstention). Because the state court in such circumstances is giving an opinion that affects an actual case, it is not considered to be issuing an advisory opinion.
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