Double Aspect

Constitutional change is supposed to be a weighty, serious business. Even in countries without a codified and entrenched constitution, like the United Kingdom and New Zealand, where it can be introduced by ordinary legislation, that legislation, something like the UK’s Human Rights Act, 1998 can be expected to be highly publicized and much debated. A fortiori, in countries like Canada whose constitution is entrenched, changing it is a serious matter. Admittedly, constitutional change might also happen as a result of judicial decisions that reinterpret constitutional text or indeed “give benediction” to rules that are nowhere to be found in the text. But, precisely because they can have such far-reaching consequences, Supreme Court cases often attract considerable attention and draw the interest of numerous governmental and non-governmental interveners.

What if, though, the constitution could change without anyone noticing? Never mind whether Attorneys General are an adequate substitute to legislatures in shaping constitutional change (spoiler alert: they are not, but that is a discussion for another day); what if the constitution is changed in a fit of general absent-mindedness? Isn’t that, like, bad? And can we do anything about it?

These are the questions I am asking in a paper which the Dalhousie Law Journal has now published (a speedy 17 months after originally accepting it), in relation to the conventions of Canada’s constitution, some of which are danger of being, or indeed already have been, disregarded and forgotten. I have blogged a number of times here about the most important one of these, the convention regulating government formation (specifically, in a hung Parliament, where no one party has a majority), but it is not the only convention in trouble.

The paper is “What to Do about the Decay of the Conventions of the Canadian Constitution” (2025) 48:2 Dalhousie LJ 821. Here is the abstract:

Constitutional conventions are central to the operation of the Canadian constitution. Yet because they are not legislated rules, their coming into being and disappearance can be subject to considerable uncertainty. Worse, it appears that conventions can disappear or be replaced inadvertently, without anyone fully appreciating that this is happening. This article describes this process in relation to three conventions of the Canadian constitution: the one regulating the appointment of the Chief Justice of Canada, the convention of civil service neutrality, and the convention governing the choice of Prime Minister in a hung Parliament. It argues that these conventions are being ignored or disregarded due to a combination of institutional amnesia on the one hand and populist pressures on the other. The article considers three possible avenues for preventing the breakdown of constitutional conventions: protest by the civil society, experts, and political actors; the compilation of an authoritative cabinet manual; and judicial enforcement of conventions. But none of these is likely to be fully effective, especially against populist opposition, and both the cabinet manual and the judicial enforcement of conventions would risk having undesirable consequences too.

I hope you read the whole thing. I would like to think that, in addition to the paper’s overall argument, there is some value in my discussion of the specific conventions at issue. None of it is original, but there is far too much confusion out there, above all on government formation — indeed, I have featured a confused guest post, as well as my own rebuttal to it, on this blog — and perhaps yet another explanation of the true constitutional position can help.

There is also considerable confusion, it would seem, about the relevance of conventions to constitutional law. A different journal where I had first submitted the paper desk-rejected it on the basis that it “relied heavily on informal secondary sources (specifically, op-eds or news articles” — which is rather inevitable when writing about political events — and additionally (for the editors) but perhaps more to the point (I suspect) because “given the article’s significant focus on the ‘decay’ of constitutional conventions for political reasons/within the political sphere, … the piece may be best suited for a political science-oriented publication”. No, kids. Constitutional conventions, including, of course what happens to them “within the political sphere”, are central to the constitution of Canada, and thus a matter of obvious concern to constitutional lawyers. I am glad that the editor of the Dalhousie Law Journal, and the reviewers she enlisted, saw it that way.

I will share here one little finding which, though not exactly original, might be news to many readers, as it was to me. When starting to think about the disappearance of conventions, and wondering whether that was a recent development or something that was more or less routine, one example immediately came to mind: there was a time when newly appointed ministers would resign their positions in the legislature, stand for re-election in the resulting by-election, and only then assume their position on the front bench. This was implicated in the notorious “double shuffle” of 1858, wherein a Macdonald-Cartier ministry was replaced by a Brown-Dorion one, only to come back to office when the new ministers resigned from the legislature in order to take up their positions. I thought that it was a convention that required these resignations; and of course, we don’t have it anymore. The Canadian Encyclopedia, in the article I have linked to here, describes it as a “parliamentary practice”.

Except, when I started looking into this, it turned out that I was wrong. Ministerial resignations were compelled not by convention, but by law, and the reason we don’t do that anymore is not that people forgot, disregarded, or misinterpreted the convention, but that the law was repealed. I concluded that my not having known this was just personal ignorance, and left the matter out of the paper I submitted entirely — only to have it suggested to me by one of the anonymous reviewers that this was an issue I had missed! Evidently, ignorance in this matter is not just personal, so I am pleased to have included in the final paper, and to share here, the following footnote, which I hope will clear things up:

The 19th-century rule, today best remembered for its role in the “double-shuffle” of 1858, that legislators had to resign and stand for a by-election upon appointment to the ministry is sometimes supposed to be an example. It is not. Far from being a convention, it resulted from the combined effect of the Act further to secure the Independence of Parliament, S Prov C 1857 (20 Vict), c 22 at ss III and VI.