Abstract/Summary

Constitutional conventions are central to the operation of the Canadian constitution. Yet because they are not legislated rules, their coming into being and disappearance can be subject to considerable uncertainty. Worse, it appears that conventions can disappear or be replaced inadvertently, without anyone fully appreciating that this is happening. This article describes this process in relation to three conventions of the Canadian constitution: the one regulating the appointment of the Chief Justice of Canada, the convention of civil service neutrality, and the convention governing the choice of Prime Minister in a hung Parliament. It argues that these conventions are being ignored or disregarded due to a combination of institutional amnesia on the one hand and populist pressures on the other. The article considers three possible avenues for preventing the breakdown of constitutional conventions: protest by the civil society, experts, and political actors; the compilation of an authoritative cabinet manual; and judicial enforcement of conventions. But none of these is likely to be fully effective, especially against populist opposition, and both the cabinet manual and the judicial enforcement of conventions would risk having undesirable consequences too.