Courting Constitutional Danger: Constitutional Conventions and the Legacy of the Patriation Reference

Supreme Court Law Review, Vol. 54, pp. 117-142, 2011

The legacy of the Supreme Court of Canada’s decisions in the Patriation Reference (1981) and the Quebec Veto Reference (1982) is more political than jurisprudential. In particular, the Supreme Court’s decision on the justiciability of constitutional conventions has created a dangerous precedent whereby political actors attempt to manipulate the courts into influencing a particular political outcome. The Canadian federal election of May 2, 2011 presented precisely such a dangerous opportunity. This paper develops the concept of “constitutional danger,” the idea that certain actions may constitute threats to our constitutional order. It does so by linking the events of the springs of 1981 and 2011. This paper asserts that by answering the convention question and assuming the power to “recognize” constitutional conventions, the Supreme Court courted constitutional danger. The Supreme Court has developed practical ways of avoiding adjudicating such crises, however, the embers of future constitutional crises are still smouldering in the pages of the Patriation Reference.

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