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Constitutional

Constitutional Conventions and Patriation

The Patriation Reference and the rule of law.

Canadian constitutional law is structured by both written rules (the Constitution Acts and constitutional statutes) and unwritten conventions. The Patriation Reference (1981) is the leading articulation: legally permissible federal unilateral action would breach a binding constitutional convention requiring substantial provincial consent. The Quebec Secession Reference (1998) added four foundational unwritten principles: federalism, democracy, constitutionalism and the rule of law, and respect for minorities.

The Manitoba Language Reference (1985) deployed the rule-of-law principle to suspend declarations of invalidity, preserving legal continuity during translation of unilingual legislation.

Key principles

  • Conventions are binding political rules
    Recognised by courts but not enforced as law.
  • Four unwritten principles
    Federalism, democracy, constitutionalism and the rule of law, respect for minorities.
  • Suspended declarations
    Available to avoid legal vacuum where rule-of-law concerns demand continuity.

Cases (3)

Reference re Secession of Quebec

landmark
[1998] 2 SCR 217
Supreme Court of Canada· 1998· Constitutional

Reference re Resolution to Amend the Constitution

landmark
[1981] 1 SCR 753
Supreme Court of Canada· 1981· Constitutional

Reference re Manitoba Language Rights

landmark
[1985] 1 SCR 721
Supreme Court of Canada· 1985· Constitutional