The Supreme Court and the Conventions of the Constitution

(2017) 78 Supreme Court Law Review (2d) 31

18 Pages Posted: 30 May 2017

Date Written: May 25, 2017

Abstract

Conventions are among the most important rules of the Canadian constitution. Yet orthodox legal theory does not recognize them as being rules of law, a view which the Supreme Court of Canada endorsed in the Patriation Reference. Nevertheless, both before and after the Patriation Reference, the Court's jurisprudence engaged with existing or alleged constitutional conventions. This article reviews this jurisprudence, and the scholarly commentary that responded to it. It concludes that the Court's endorsement of the orthodox view that there exists a rigid separation between conventions and law was poorly justified, and ought to be abandoned.

Keywords: Constitutional conventions, Canada, Dicey, Patriation Reference

Suggested Citation

Sirota, Leonid, The Supreme Court and the Conventions of the Constitution (May 25, 2017). (2017) 78 Supreme Court Law Review (2d) 31, Available at SSRN: https://ssrn.com/abstract=2974403

Leonid Sirota (Contact Author)

School of Law ( email )

Foxhill House
Whiteknights Campus
Reading, Berkshire RG6 6BA
United Kingdom

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