“Conventions are not law”: FCA decision helps correct potential misconceptions

A Federal Court declaration that it is a “constitutional convention that judicial vacancies on the provincial superior courts and federal courts must be filled within a reasonable time” has been overturned by the Federal Court of Appeal.  

Partners Andrew Bernstein and Jeremy Opolsky, who acted as counsel to the intervener, the University of Ottawa Public Law Centre, are pleased with the Court’s decision, Andrew said in an interview with Law360.

Torys argued on behalf of the client’s Constitutional Law Initiative that “conventions are not law”, Andrew said to Law360. He also expressed the concern that that the Federal Court’s decision conflated conventions and laws “in a way that ignored the distinct roles of the executive and the judiciary under Canada’s Constitution.”

“We were pleased to see that the Court of Appeal took the time to reiterate this important principle, even if it was not the ultimate basis for its decision, which was about the jurisdiction of the Federal Courts,” Andrew said.

“The Constitutional Law Initiative is committed to the orderly development of Canadian constitutional law, and we believe that the Court of Appeal’s decision helps correct some misconceptions that might have arisen in the decision below.”

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