REFERENCES, STRUCTURAL ARGUMENTATION AND THE ORGANIZING PRINCIPLES OF CANADA'S CONSTITUTION

Abstract

Structural argumentation is a form of constitutional argument that proceeds by way of drawing, implications from the structures of government created by our Constitution and then applying the principles generated by those implications - which can be termed the foundational or organizing principles of the Constitution - to the particular constitutional issue at hand. It is a form of constitutional argumentation that has featured prominently in a number of important reference cases over the course of our history, and that has recently taken on added significance as a result of its extensive use by the Supreme Court of Canada in both the Provincial Court Judges Cases (1997) and the Québec Secession Reference (1998) . In, this paper, Professor Elliot examines several issues of both theoretical and practical importance relating to this form of argumentation and the principles to which it has given rise.