Investigating the Legal and Political Contours of Unwritten Constitutional Principles after City of Toronto

Abstract

The Supreme Court of Canada has considered unwritten principles to be part of the Canadian constitution for some time. They are aspects of Canada’s supreme law, along with the Constitution Acts, 1867 and 1982 and constitutional architecture. Yet the Court’s treatment of these principles continues to evolve. In the recent City of Toronto case, for instance, the majority ruled that unwritten constitutional principles cannot be used to invalidate legislation, seemingly diluting their power and import.

The Court’s evolving approach to unwritten principles reveals an ambivalence about their origins, meaning and purpose. One reason for this ambivalence is that the jurisprudence has largely developed against the backdrop of the written, legal constitution; the Court has had very few opportunities to consider how unwritten principles relate to the constitution’s political rules and norms. This has made it difficult for the Court to develop an account of unwritten principles that fits with the constitution as a whole, as opposed to just its legal components.

In this article, we examine the relationship between unwritten principles and the political constitution through the prism of two questions. First, we ask how unwritten principles interact with constitutional conventions. Our research reveals that the relationship between unwritten principles and conventions is bi-directional: political rules shape the development of unwritten principles, and vice versa. Second, we consider what the normative character of unwritten principles tells us about their place in the constitutional order. We conclude that unwritten principles serve as a normative bridge between the legal and political constitutions, and that they are simultaneously law and not-law.

Keywords: unwritten constitutional principles; constitutional convention; legal constitution; political constitution; Supreme Court of Canada