Unwritten Constitutional Principles in Canada: Genuine or Strategic?

Abstract

Culminating with the Quebec Secession Reference (1998), the Supreme Court of Canada identified a number of unwritten principles that it described as the ‘lifeblood’ of the Constitution – they ‘infuse our Constitution,’ they wrote, and ‘breathe life into it.’ Having a ‘powerful normative force,’ they even could give rise to ‘substantive legal obligations.’ Since then, the Supreme Court has curiously retreated from this stance, preferring to rely on the written constitution and declining to consider unwritten constitutional principles as altering those substantive commitments. This trend line was most clearly on display in Quebec v. Canada (2015), where the Court resisted having the unwritten constitutional principle of cooperative federalism constrain exercises of unilateral federal authority. Significantly, the three civil law justices from Quebec jointly issued dissenting reasons, having the support of a number of scholars from within Quebec. The Court’s behaviour indicates that the justices were not serious about the role of unwritten constitutional principles going forward. The paper argues that the unwritten constitution was developed in the Secession Reference as a response to legitimacy concerns then facing the Court, which are no longer present. Judges and scholars from Quebec mistook these signals as genuinely novel legal developments rather than strategic responses designed to get the Court out of a jam.

Keywords: constitutional principles, judicial review, strategic decision making, Canada