The Relevance of Government Practice in Constitutional Decision-Making: A Review of the Supreme Court’s Federalism Jurisprudence

Abstract

This article explores the role of government practice in the Supreme Court of Canada’s (“SCC”) constitutional jurisprudence. With the exception of conventions, practices of government actors are not usually thought to have constitutional force or significance. However, a systematic review of the SCC’s federalism decisions from the last five decades reveals that government practice has a gravitational pull in the Court’s decision-making. This article investigates the ways in which justices understand and attribute significance to government traditions or practices when resolving jurisdictional challenges. It also explores possible explanations for why justices might believe government practices are relevant to validity determinations. Creative Commons License This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol58/iss1/3