Canada's Unfathomable Unwritten Constitutional Principles
Queen’s Law Journal, Vol. 27, pp. 389-443, 2002
56 Pages Posted: 29 Jan 2011
Date Written: December 27, 2001
Since the advent of the Canadian Charter of Rights and Freedoms in 1982, Canadian courts have become bolder in the law-making enterprise, and have recently resorted to unwritten constitutional principles in an unprecedented fashion. In 1997, in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, the Supreme Court of Canada found constitutional justification for the independence of provincially appointed judges in the underlying, unwritten principles of the Canadian Constitution. In 1998, in Reference re Secession of Quebec, the Court went even further in articulating those principles, and held that they have a substantive content which imposes significant limitations on government action. The author considers what the courts' recourse to unwritten principles means for the administrative process. More specifically, he looks at two important areas of uncertainty relating to those principles: their ambiguous normative force and their interrelatedness. He goes on to question the legitimacy of judicial review based on unwritten constitutional principles, and to criticize the courts' recourse to such principles in decisions applying the principle of judicial independence to the issue of the remuneration of judges.
Keywords: Constitutionalism, unwritten principles, judicial review, judicial independence, judicial remuneration, legitimacy, uncertainty, vagueness
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