Political Law and the Supreme Court of Canada (La Cour suprême du Canada et le droit politique)

Abstract

This short paper takes the Patriation Reference, a celebrated advisory opinion given by the Supreme Court of Canada, as the starting point for a critical survey of the role of unwritten constitutional principles in Canadian constitutional adjudication. The paper looks at the relationship between those principles, which were famously applied in the Quebec Secession Reference, and the constitutional conventions inherited from the British tradition, which make the legal monarchy a constitutional democracy. The paper concludes that by giving legal effect to constitutional principles, the Supreme Court has unknowingly granted itself a review power over conventions akin to that which it exercises in respect of parliamentary privileges. This is thought to represent a major shift in institutional arrangements the consequences of which remain uncertain. This text is available in French only.

Keywords: Political Law, Constitutional Law, Constitutional Principles, Constitutional Conventions, Patriation, Secession, Judicial Review, Constitutional Review, Constitutional Theory, Justiciability, Political Questions Doctrine, Judicial Power, Lex Parliamentis, Parliamentary Privileges, Judicial Review