Unwritten Constitutional Principles
While Canada has a written Constitution, the Supreme Court has recently been busy developing unwritten constitutional principles which have been used to resolve diverse issues ranging from judicial compensation to Quebec secession to the legality of hospital restructuring. This paper provides an overview of the development of unwritten constitutional principles and explains their importance to modern constitutional litigation in Canada.
Like the United States but unlike the United Kingdom, Canada has a written Constitution. Canada's written Constitution consists of two primary instruments. The British North America Act, 1867 (later renamed the Constitution Act, 1867), a colonial statute enacted by the United Kingdom's Parliament in 1867, containing the division of legislative powers between the federal Parliament and the four provinces who came together at Confederation, which now also applies to the other provinces and territories; and the Canadian Charter of Rights and Freedoms, enacted in 1982 as part of the patriation of the Constitution, protecting fundamental human rights and civil liberties.
For the most part, Canada's constitutional law has consisted of drawing the boundaries between federal and provincial powers and, more recently, interpreting the fundamental guarantees in the Charter. This has involved interpreting the text of the written Constitution. Is the control of the advertising of tobacco products a federal power as part of federal jurisdiction over "criminal law", or is it a provincial power as part of "property and civil rights in the province"? Does the right to "liberty" in s. 7 of the Charter include the right of a pregnant woman to choose an abortion? These are essentially questions of textual interpretation, requiring the Court to determine the scope of the written constitutional provisions. To be sure, they all involve important elements of public policy, but they are ultimately rooted in the wording of specific constitutional provisions.
In recent years, however, the Supreme Court of Canada has added a fundamentally important new tool to its judicial toolbox. This is the concept of "unwritten constitutional principles". This concept first surfaced in Re Remuneration of Judges, [1997] 3 S.C.R. 3, where the Court considered whether it was constitutionally permissible for the legislatures of the provinces of Alberta, Manitoba and Prince Edward Island to reduce the salaries of provincial-court judges. The salary reductions had been enacted to combat each of the provinces' budget deficits and applied universally in the public sector and equally to all provincial-court judges. The Supreme Court of Canada ruled that these measures were a breach of the unwritten constitutional principle of judicial independence, and were therefore unconstitutional. The Court did not say that judicial salaries could never be reduced, but rather held that any reduction would have to follow the recommendation of a judicial compensation commission. If a legislature wished to depart from the recommendation of such a commission, it would have to show a "legitimate reason" for doing so, the Court ruled.
There is nothing in the text of the Constitution about salary reductions for judges or about judicial compensation commissions. So where did the Court get this notion of an unwritten constitutional principle of judicial independence that was the basis of invalidating the budgetary legislation of three provinces? The source was the preamble to the Constitution Act, 1867, which essentially states that Canada is to have "a Constitution similar in Principle to that of the United Kingdom". Writing for the majority of the Court, now-retired Chief Justice Lamer stated that
the express provisions of the Constitution Act, 1867 and the Charter are not an exhaustive written code for the protection of judicial independence in Canada. Judicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867. In fact, it is in the preamble, which serves as the grand entrance hall to the castle of the Constitution, that the true source of our commitment to this foundational principle is located. (at para. 109)
Any doubt about whether the Court's decision in Re Remuneration of Judges was a one-off was dispelled in the Secession Reference, [1998] 2 S.C.R. 217, arguably the most important decision ever rendered by the Supreme Court of Canada. The Court was faced with the politically explosive question of whether the Constitution of Canada permits the unilateral secession of Quebec. Not surprisingly, there is nothing in the Constitution about secession, since the Constitution was designed to bring the provinces together, not to break them up. The lack of express written constitutional guidance did not deter the Court, which invoked the unwritten constitutional principles of democracy, federalism, constitutionalism and the protection of minorities. The Court held that if Quebec wished to secede, then in order to protect these unwritten principles the federal government and the other provinces would be under a legal duty to negotiate with Quebec about the terms and conditions of secession. While the four unwritten principles invoked by the Court plainly went far beyond the unwritten principle in the judges' remuneration case, the latter case nevertheless laid the fundamental precedential groundwork for the Court to decide as it did.
Most recently, in Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, released in February 2002, the Court was faced with another question about judicial compensation, this time whether the Province of New Brunswick could constitutionally abolish the system of supernumerary judges, permitting semi-retired judges to carry 40% of a full-time workload for 100% of the pay. A majority of the Court ruled that the elimination of the supernumerary judge system violated the unwritten constitutional principle of judicial independence, again since the legislation was not preceded by the recommendation of a judicial compensation commission. Justice Binnie (LeBel J. concurring) dissented, stating that "[t]here is no general constitutional entitlement for judges to work 40 per cent of the time for a 100 percent salary" (at para. 94).
Lower courts have also invoked unwritten constitutional principles in deciding cases of fundamental constitutional importance. For example, in Lalonde v. Ontario (2002), 56 O.R. (3d) 505 (C.A.), released in December 2001, the Ontario Court of Appeal held that a directive from Ontario's Health Services Restructuring Commission ordering the substantial reduction of services at Ottawa's Montfort Hospital, the only Ontario hospital where the working language is French and where French services are available on a full-time basis, violated the unwritten constitutional principle of respect for and protection of minorities, and therefore could not stand. The Court held that the Commission's directions would reduce the availability in the Ottawa-Carleton region of health care services in French, jeopardize the training of health care professionals, and cripple Montfort as an important francophone institution.
The Montfort hospital case makes it very clear that unwritten constitutional principles can be invoked in a broad range of cases, even where highly practical questions such as the restructuring of government programs are at issue. Any litigator faced with constitutional issues now needs to consider unwritten constitutional principles. It is not enough to stop short at the text of written constitutional guarantees. Courts are looking for creative solutions to complex constitutional problems, and unwritten constitutional principles provide them with flexible ways to do justice when conventional constitutional tools fall short.
Critics of the use of unwritten constitutional principles assert that they are anti-democratic, and claim they involve judicial activism at its worst. Certainly, whenever a court strays beyond interpreting the specific words stipulated by legislative bodies, concerns will likely surface about the legitimacy of the court's decisions and even its role. Such issues are best left to be resolved in the political arena, critics assert, to be determined by the peoples' democratically elected representatives. But what is the Court to do when the peoples' elected representatives refer matters to the Supreme Court for determination, as they did in the Secession Reference? Rather than throw up their hands, the Court crafted one of the wisest decisions of its institutional history, a decision that magically seemed to appeal to both federalists and Quebec separatists alike. The real issue is not whether the Court should invoke unwritten constitutional principles. It clearly should, if it is to resolve questions where there is no answer in the text of the written Constitution. The real issue is the changing role of the Supreme Court, one that has been thrust upon it by Canadians who now look to the Court to answer some of our most complex social and political problems.