conventions
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Which Principles? What Politicization?
A response to Maxime St-Hilaire’s appeal to principle over politics at the Supreme Court of Canada Continue reading
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Where Is the Grass Greener?
In a recent article in Constitutional Forum, Peter Russell argues that Canada needs to imitate New Zealand by creating a Cabinet Manual that would, notably, contain an authoritative although not legally binding statement of the principal constitutional conventions, especially those that regulate the formation of governments. While this would, in prof. Russell’s view, have a Continue reading
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A Bad Case
As promised, here are some thoughts on the Memorandum of Fact and Law that the federal government’s lawyers have filed in response to Aniz Alani’s challenge of the Prime Minister’s policy of not appointing Senators. (I had previously canvassed what I thought ― mostly, but not entirely, correctly ― would be the main issues in Continue reading
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Continuing the Conventions Conversation
Yesterday, I suggested that we may be in the midst of a change in the conventions pertaining to the formation of government after an election that results in what the British call a “hung Parliament” ― one in which no party has a majority of seats. Traditional convention allows the incumbent government to remain in office Continue reading
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Constitutional Metamorphosis
The major party leaders have made some curious statements regarding the formation of a government in the aftermath of an election where no party claims the majority of seats. First Thomas Mulcair, then Stephen Harper, and then Justin Trudeau as well, have asserted that whichever party wins more seats than the others should be called on by the Continue reading
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Conventional Thinking
There is big news on the Supreme Court appointment front today, which is arguably not getting enough attention. According to the Globe’s Sean Fine, “[t]he Conservative government has turned to Quebec to create a candidate list for the Supreme Court of Canada” ― asking the provincial government to submit names of potential replacements for Justice Fish Continue reading
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Nurturing Conventions?
The idea of constitutional conventions, familiar in the Commonwealth since the times of A.V. Dicey, has recently been attracting some attention from American scholars. Gerard Magliocca is apparently using it in a forthcoming article. And, most recently, it appears in an intriguing guest-post by Miguel Schor at Balkinization. Prof. Schor argues that conventions are important Continue reading
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What We Said
Apologies for the recent silence. There was no particularly good reason for it, either. Anyway, I’m back. And there is a very good reason for that: the Québec Court of Appeal has released its opinion in response to a reference by the Québec government on the constitutionality of the Federal Government’s Senate reform plans, which Continue reading
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Constitutional Conventions and Senate Reform
Fabien Gélinas and I have written a paper on the (under-appreciated yet crucial) role of constitutional conventions for assessing the constitutionality of the federal government’s plans for reforming the Senate, which are the subject of references now being considered both by the Supreme Court and by the Québec Court of Appeal. (The factums for the Continue reading
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In the Trenches
Here’s the second part of my comment on C.J. Peters’ claim, in a recent and very interesting blog post, that constitutional law consists of “rules that are both entrenched and secondary.” I argued yesterday that constitutional rules often are primary rules (in H.L.A. Hart’s sense) or at least have a “double aspect” and are both secondary and primary Continue reading
Double Aspect 