Draconian But Not Despotic: The 'Unwritten' Limits of Parliamentary Sovereignty in Canada
Ottawa Law Review, Vol. 41, No. 2, 2010
44 Pages Posted: 21 Dec 2010 Last revised: 14 Feb 2011
Date Written: September 30, 2010
More than a decade after the Quebec Secession Reference, the issue of whether unwritten constitutional principles may be applied as free-standing limits on legislation remains a contentious issue. Interestingly, academics and judges seem to be approaching the issue from different perspectives. Whereas scholars have adopted an "American" focus on the potential dangers to the legitimacy of judicial review that are raised by judges departing from the constitutional text to identify and apply constitutional principles as limits on legislation, Canadian judges appear to be adopting a "British" approach that recognizes the legitimacy of unwritten principles but favours the principle of parliamentary sovereignty above other principles.
This article argues that viewing decisions of Canadian courts through the lens of British common law constitutionalism provides a new perspective on some of the most important appellate and Supreme Court decisions that have considered the application of unwritten constitutional principles as limits on legislation. It suggests that while these decisions may appear (on their face) to limit the scope of the application of unwritten constitutional principles, the decisions actually include the building blocks for an approach that ultimately recognizes the potential for unwritten principles to limit legislation that substantially interferes with the democratic process.
The article proceeds beyond the parameters of the existing debate concerning the role of unwritten principles in Canadian constitutional law by providing a detailed analysis of several key cases from a new perspective. In so doing it builds a new framework for understanding the Supreme Court’s approach to this issue.
Keywords: constitution, constitutional law, canada, great britain, unwritten constitutional principles, common law constitutionalism
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