You will quickly find without recognizing constitutional conventions nothing in Canada has a "legal" basis, which, of course, is still a position you may hold. But no law is law without you recognizing the sovereign (what law is there to give the British Parliament the power to modify and patriate Canada's constitution?); and for many people, not recognizing the doctrine of responsible government is zero steps (or for majority of people, a couple more steps) away from not recognizing the Queen.

So you are right, but you should recognize how it practically works is part of the foundation of the Canadian state, and not observing how it practically works (or even disagreeing what the conventions mean) may have important consequences. Past that stage, the courts or the "law" alone cannot resolve the crisis.

@xngtng, you make an excellent point, and I agree, the courts cannot be relied upon to remedy this issue, because they are not functioning correctly. I suppose this is for legislators (clarify the legislation) or the citizenry (pitchforks) to remedy. What do you envision as the important consequences of disagreeing with the meaning of conventions? The state functions as the state functions. That can't be argued. That it doesn't function as provided by the constitution is, however, subject to argument.

I questioned which are genuine constitutional conventions, as opposed to goal-seeking constitutional conventions. Eg, the argument that "judges are appointed by GG on the advice of Cabinet" is goal seeking. A genuine convention is unnecessary, because the constitution explicitly provides that "judges are appointed by GIC" where GIC means GG on the advice of the Privy Council. Substituting Cabinet for the Privy Council is a convenient fabricated "convention" as the Govt seeks to override constitution with the goal of controling judicial appointments.

I do recognize genuine constitutional conventions. I take issue with political goals explained away as (fabricated) constitutional conventions.

When different actors of the state interprets the conventions differently, constitutional crisis may result with various degrees of repercussions or improvements.

The Cabinet is the committee of Privy Coucil responsible for advising the responsible government since it consists of the members answering to the Parliament.

Judicial appointments are made by order in Council as a collective advice of the Cabinet, not the Minister. The Minister of Justice being responsible to recommend potential nominees are simply how the government and Parliament (DoJ Act) chooses to divide its duties.

Is there a legislative/constitutional provision that describes "Cabinet is the committee of Privy Coucil" formally? Cabinet is 39 individuals (current ministers) ,while "Privy Council" is over 200 individuals (some are current ministers). Where is it described that only the subset of the Privy Council that are also current ministers may be consulted by the GG when appointing judges?

Responsible government means the Sovereign will follow only the advice of people who have the confidence of the House, which are the PM and the Ministers they assemble, whether when appointing judges or making statutory regulations or otherwise exercising the executive power.

The Sovereign or their representative would then only summon (on the advice of PM, most often) the current Ministers.

Any four or more Privy Councillors summoned may then act as a committee of the PC and advise the Governor in Council.

The problem is that Jeredo Mills has a conception of "constitutional convention" that is narrower than that which has been acknowledged in Canadian law, and is looking only for legislative/constitutional "provisions" that express the practice of the GG taking advice from cabinet, to the exclusion of constitutional conventions that establish that practice. This is an artificial constraint that will only lead Jaredo to unsatisfactory answers.

Jared has all the information they need from my answer, but they simply disagree. That's okay. But there's not much more we can do to convince them if they have written off whole categories of the constitution as illegitimate because of their classification as "goal seeking." The standard understanding of constitutional conventions is that every convention in fact needs to be justified by a purpose: they are explicitly goal seeking.

"Any four or more Privy Councillors summoned may then act as a committee" - for the sake of discussion, I accept that this is formally defined somewhere, although I cannot find a definite source. This ad-hoc committee can be, for example, the four former GG's (Edward Schreyer, Adrienne Clarkson, Michaëlle Jean, David Johnston). None of these individuals are members of Cabinet, yet, according to the explicit letter of the Constitution, their advice would be proper for appointing a judge.

It therefore seems incorrect to say that appointments are made on advice of "Cabinet", when the constitution doesn't even suggest such a thing.

The GG can take advice from whomever she wants. GGs and the governments have developed a convention that she take advice from cabinet.

But you know all of this.

The Constitution does not constrain who the GG can take advice from when making a. 96 appointments

I have accepted Jen's premise that the SCC's definition of "constitutional convention" was given in Reference re Secession of Quebec, [1998] 2 S.C.R. 217, which explained it in some detail. In that definition, "convention" was seen to supplement the letter of the Constitution, not to supplant it.

The view that the subset "Cabinet" is the adviser GG rather than the larger "Privy Council" is a "convention" to ignore what the Constitution actually says, with something that fits a narrative/political goal.

I don't believe that "GG can take advice from whomever she wants", because the Constitution explicitly says the advice (in the scope of judicial appointments, and others), must come from "Privy Council".

It does not

If the GG wanted my advice, for instance, she would have to appoint me to the PC first, before accepting anything I have to say.

The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province>

Those courts have judges appointed by GG (no advice required whatsoever). I'm mainly concerned with Federal Court judges, where Federal Courts Act s5.3, whereby judges are appointed by GIC. Constitution 1867 s.13 defines "GIC" as meaning "Governor General acting by and with the Advice of the Queen’s Privy Council for Canada"

Also, the term "Cabinet" itself is a convention, and not an actual institution with a formally defined constitution, purpose, etc. We call the current ministers, collectively, "Cabinet", but there is nothing like a section of the Constitution, or an "Act of Cabinet" which created such an entity, and gave it some charter.

"Cabinet Act" would have been a better wording

The explanation that GIC requires Cabinet's advice is also illogical. Consider the following thought experiment:

Suppose that Canada had trouble forming a Government (for some period of time). Therefore there would not be a Cabinet at all during this period. Does our Constitution provide that in such a circumstance, Federal Court judges cannot be appointed?

My view is that since the Federal Court appointments would be completely unaffected by Canada's inability to form a Government. The GG appoints PC members at her own discretion, and it is not possible for a PC to not exist, even if a Cabinet does not exist. Therefore, the GIC can fulfil her duties in the absence of Cabinet, for any length of time, as long as she has appointed some PC members who are alive and able to give council.

It's illogical to say that the Cabinet is required in order to appoint Federal Court judges, since the existence of Cabinet is not a prerequisite of the GG being advised by a PC which she can appoints from the pool of all Canadians.

The constitutional convention of responsible government means fundamentally that the King or his representative must appoint a government having the confidence of the people (through the House of Commons) or, as part of reserved powers, does what is necessary or conducive so that a responsible government is formed (e.g. through new elections).

Whenever there is a responsible Cabinet holding the confidence of the House, the GG is constitutionally bound by the advice of the Cabinet. If not, then the GG does what is necessary to form a responsible Cabinet, the first step being the elections of a new House.

The GG indeed has the reserved powers to appoint without the advice of a Cabinet holding the confidence of the House, but they should only do it if the exercise of that power cannot be reasonably delayed until the formation of a responsible government.

FC judge appointments, generally, are not an urgent matter, unless perhaps some catastrophic events destroy or incapacitate the entire federal judiciary. In that case, just like a lame duck cabinet must nonetheless have the ability to react to emergencies (e.g. if Covid or a terrorist attack happened during the elections), the GG in any case would do what is necessary for the good functioning of the Canadian state. But the premise of responsible government remains.

Indeed, the King may reject the advice of a Cabinet that no longer holds the confidence, and may instead appoint a government that holds or appears to be able to hold or should be given a chance to hold the confidence. This is what Lt.-Gov. Guichon did when she rejected Christy Clark's advice and invited John Horgan to form a government, on the constitutional understanding that the NDP-Green govt must demonstrate its holding of confidence ASAP.

Cabinet ministers are members of the Privy Council for the explicit purpose to be able to advise GG. Yes, that is a goal seeking move, if you want to call it, the goal being to establish a democratic government in Canada run by elected representatives.