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In search of a marriage counsellor : a proposal for strengthening the enforcement of Canadian constitutional conventions as legal rules of political behaviour

University of British Columbia

Canada’s constitutional framework consists of both written and unwritten sources. Within the subset of unwritten constitutional sources lies the body of constitutional conventions: rules of political morality that limit the scope of behaviour that would otherwise be legally permitted. Conventions are established by precedents and understood by political actors to be binding upon them. But the orthodox view holds that they are beyond the purview of the legal system and enforceable exclusively within the political realm. This thesis proposes measures for more effective regulation of political behaviour for compliance with constitutional conventions. These proposals are inspired by Prime Minister Stephen Harper’s announcement in 2014 that he would refrain from advising the Governor General to fill vacancies in the Senate of Canada. By convention, the Governor General only exercises the legal power to appoint Senators on the Prime Minister’s advice. Challenging the constitutionality of the Prime Minister’s conduct therefore implicated constitutional conventions. The author describes a judicial review application brought for this purpose as an illustrative example of the impracticality of litigation to enforce constitutional conventions. Drawing on that experience, he argues that Canadian jurisprudence ought to be renovated to accommodate and accept conventions as legally cognizable and enforceable rules. He further proposes the creation of an independent officer of Parliament accountable for monitoring political behaviour for compliance with constitutional conventions and drawing public attention to situations where conventional rules are breached.

Text

2017-05-03

Attribution-ShareAlike 4.0 International

http://hdl.handle.net/2429/61468

Law

University of British Columbia

UBCV

http://creativecommons.org/licenses/by-sa/4.0/