As a country that has a "constitution similar in principle to that of the United Kingdom", Canada has only a partly written constitution. There exist, however, many practices which are adhered to in Canada that are not included in the Constitution Act or any other formal constitutional document. These practices are called Conventions of the Constitution and are made up of accepted procedures and well recognized practices that are binding on those to whom they are meant to apply. For the most part, conventions of the constitution apply to politicians. Such conventions of the Constitution include, among others, the role of the Cabinet, the post of the Prime Minister, the existence of political parties, the principles of responsible government and cabinet solidarity, the status of the Governor General etc. Conventions of the Constitution, since they are not formally set down in a written formal document, are rarely, if ever, legally enforceable. They rest on their acceptability to the people as a whole. Presumably, if a convention was violated, it would lead to such unrest that the ultimate consequence would the enactment of a formal law to prevent its recurrence. In fact, conventions of the constitution often contradict a specific legal clause whose application, if it was attempted, would be highly reprehensible. Thus, article 9 of the Constitution Act (1867) states: "The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen"; but, in reality, executive power is by convention exercised by the government or, as specialists would call it "by the Queen in council".
For a convention of the constitution to exist some important criteria must be established: 1. the participants must feel bound by it; it must not be a matter of choice for them. 2. there must be precedents for it (at least one). 3. There must be a reason for this convention and this reason must continue to exist.
The last time that conventions of the constitution were raised in Canada was in the period of 1980-1982 when Pierre Trudeau proposed to patriate and amend the Canadian constitution without the support of the provinces. The Supreme Court of Canada held that while Trudeau was not acting illegally, ie. against a specific legal clause of the constitution; nevertheless, he proposed to act unconstitutionally when one considers the conventions of the Constitution. As expected in this case, Trudeau sat down with the provinces to obtain a satisfactory level of support and, thus, showed respect for the Constitution of Canada.
© 2001 Claude Bélanger, Marianopolis College