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Lecture 1

POLS 2200 Lecture Notes - Lecture 1: Patriation Reference

Political Science
Course Code
POLS 2200
Radha Persaud

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Courting Constitutional Danger: Constitutional Conventions and the Legacy of the
Patriation Reference
Adam Dodek
The election of a majority government swept aside the possibility that the courts — and
eventually the high court itself — could be called upon to adjudicate a host of highly
contentious political issues.
However, the legacy of these cases is more political than jurisprudential.
It is fair to say that while the Patriation Reference was greeted by a warm response for its
political implications, it received a lukewarm to negative reaction for its judicial craft.
This is best summed up in the phrase “bold statescraft, questionable jurisprudence” which
is the title of Peter Russell’s contribution.
Leading constitutional experts of the day disparaged the Supreme Court’s judgment in the
Patriation Reference, especially its decision to address the convention question.
Hogg stated: I think it is fair to say that the Supreme Court of Canada’s first foray into political
science did not yield very satisfactory reasoning or conclusions.
Hogg commented at the time that the only justification for even considering the convention
question would be to influence the political outcome. He lamented that the “court allowed itself to
be manipulated into a purely political role”
There already have been and there will continue to be attempts to use this aspect of the
Patriation Reference to manipulate the courts into influencing a particular political
The election of May 2, 2011, presented precisely such a dangerous opportunity.
Dodek develops the concept of “constitutional danger”: the idea that certain events may
constitute threats to our constitutional order. In this paper he is concerned about judicially
created constitutional dangers.
Part II: Constitutional danger
The Supreme Court is charged with upholding our Constitution.
According to Hogg, “[i]n each case, the Court came up with a solution that arguably
exceeded the normal limits of judicial power, but the solution was a clever one that
defused the crisis.”
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