Constitutional Conventions, The Heart of the Living Constitution

Constitutional conventions significantly shape how Canada’s constitution functions, often filling legal gaps and defining political authority. They govern the prime minister’s role and the operation of responsible government, transferring decision-making authority from legal frameworks to political actors. Conventions also restrict the legitimate use of legal powers, as seen with the governor general’s limited discretion in appointing cabinet members. Interestingly, some conventions contradict legal duties, like the governor general’s failure to send legislation copies to the British government since 1942. Despite their importance, Canadian courts and scholars have overlooked conventions, misunderstanding their nature and origin.

Relying on historical precedents in constitutional matters can be effective, but problematic when in conflict. Political precedents might be absent, outdated, or contradictory, leading to dilemmas about the existence and interpretation of rules. The Jennings test, often used to determine conventions’ binding nature, works best for those arising from consistent political practice. Trudeau’s attempt to unilaterally patriate the constitution highlights the tension between unilateralism and constitutional conventions, demonstrating the complexities of internal morality in governance.

“Constitutional conventions play a key role in how our constitution actually works in practice, redefining the operation of many legal rules in the process. Some conventions fill great vacuums in the law; for example, the office of prime minister remains to this day largely a creation of convention rather than law. Indeed, the whole enterprise of responsible government is essentially defined by convention.

Other conventions transfer political authority for decisions away from the legal decision maker; most of the powers of the governor general and lieutenant governors, for instance, are exercised in practice by the prime minister and cabinet. Some conventional rules limit the circumstances in which a legal power may legitimately be used; the governor general’s power to appoint and replace members of the cabinet at will are strongly circumscribed and must be used to ensure that the incumbents have or are likely to win the confidence of the House of Commons. A few conventions even negate legal powers or duties; while the governor general has a clear duty under s.56 of the Constitution Act, 1867 to send copies of all legislation passed by Parliament to the British government, this duty has not been followed since 1942. Given the central role of conventions to the Canadian system of government, it is perhaps curious that Canadian courts and legal scholars have given relatively little consideration to them. Of more concern, however, is that much of the attention that has been paid to conventions seriously misconstrues their nature and genesis.”

“A reliance on historical precedents is a bit like trying to navigate by the stars. It is all well and good in a clear sky, but the heavens are not always obliging. The sky may be entirely clouded over, or large patches of the sky may be covered. Similarly, political precedents work wonderfully when they exist and when one can tell which precedents are relevant to our constitutional navigation. But historical precedents can be completely missing, date from a bygone era, or contradict one another. If one searches for a rule among historical events, a number of dilemmas arise from conflicting precedents. Does the contradictory evidence demonstrate that no binding rule exists? Is there a rule, but is one or more of the actors mistaken in assessing its terms? Did one rule give way to another higher rule? Finally, did the actors knowingly breach the rule, but publicly deny its existence, as an act of political self-interest? Another issue is whether one considers both positive and negative precedents. Sometimes, what did not happen and why can be just as revealing, or even more so, than what has happened. It is quite erroneous to conclude that the absence of a clear line of consistent precedents demonstrates that political actors are not bound by convention.The Jennings test really works best for those conventions which arise from consistent political practice and develop into convention. While many conventions do arise this way, others do not. As noted below, conventions can arise through express agreement among all the relevant actors or even by unilateral declaration. Quite a few conventions are also the result of inconsistent, antiquated, or only missing precedents.”

[Unilateralism – it seems very “Canadian” that they’d give “dictatorship” a new name and then legitimize it as a political tradition. Unilateralism is a political tradition but usually in an international context, that each province relates to each other as foreign in many ways is apparent in the way “federalism” has been redefined in the Canadian context, such as with what “free trade” has been redefined to mean. Everything has its exception.]

“Pierre Trudeau’s attempted unilateral patriation is an excellent example of conventions as critical morality. Despite Trudeau’s avowed defence of unilateralism at the time of his proposal, the larger political community and a majority of the Supreme Court clearly held that unilateral changes to provincial powers unconstitutionally undermined the federal principle. Perhaps more telling about the perils of relying on internal morality, Pierre Trudeau pursued the unilateral patriation of the Constitution despite the fact that, as he later acknowledged, he knew there to be a convention requiring provincial consent. After the Supreme Court published their decision in the Patriation Reference, Trudeau told reporters that the Court simply confirmed what the government had held all along, that it had the legal authority to proceed unilaterally even “though there is a political convention or practice that such a request not be made without the agreement of the provincial governments.”

“Constitutional Conventions, The Heart of the Living Constitution”, Heard Andrew.