The Generation and Guardianship of Constitutional Principles

Abstract

There is a tendency, certainly amongst lawyers, to think that it is exclusively the role of the courts to develop or identify constitutional principles and then to guard them. When considering constitutional principles in the Canadian setting, judicial pronouncements (as in the Secession Reference) spring first to many lawyerly minds and it now seems quite clear that the Supreme Court of Canada sees itself as the guardian of these constitutional principles.

I will argue that the legislative process can also generate and guard important constitutional principles. Within Parliament, clerks and other players act as the guardians of these principles. Even before bills undergo the parliamentary scrutiny process, generation and guardianship of constitutional principles by non-judicial actors can be perceived. Legislative drafters act, in their iterative discussions with ministers, other civil servants and policy advisors, as guardians of principle, striving to strike a balance between the protection of constitutional fundamentals and the advancement of governmental policy goals.

These features of the legislative process undermine the notion that courts are central to the generation and guardianship of constitutional principles.