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CONSTITUTIONAL LAW

• Canada’s Constitution is partly written (spread out over several statutes), and partly unwritten (traditions to which political actors conform to)

• Written part• Statutes of the Imperial Parliament (British North America Act,

1867 – later renamed the Constitution Act, 1867)• Statutes of the Parliament of Canada• Statutes of the Legislatures of the Canadian Provinces

• Written Constitutions tend to be phrased in general language (as compared to most ordinary statutes)

• These vague Constitutions foresee being renovated by statutes (“organic enactments”) to fill in the detail of constitutional institutions

• Derived from judicial decisions (ex. law of Parliamentary Privilege, prerogatives of the Crown, etc.)

CONSTITUTION ACT, 1867

LOOK MORE CLOSELY AT CONSTITUTION ACT 1867 AND TALK ABOUT WHAT IT CONTAINS.

THEN, THE QUESTION IS, WHAT DOES IT NOT CONTAIN?

UNWRITTEN CONSTITUTION

• The Constitution does not consist of merely what we read.

• In addition, there are what are called “unwritten constitutional principles”

• While these principles may have a textual foundation, they are essentially elaborated by judges.

• Unwritten constitutional principles include: the rule of law, judicial independence, the doctrine of paramountcy, full faith and credit, parliamentary privilege, and since the Supreme Court’s Reference Re Secession of Quebec, federalism, democracy, constitutionalism, and protection of minorities.

• These are not just air-fairy, they have real-life consequences.

• In Reference Re Manitoba Language Rights, the rule of law resulted in patently unconstitutional laws being upheld to avoid legal chaos.

REFERENCE RE PROVINCIAL JUDGES [1997] 3 SCR 3Facts• PEI and Manitoba lowered judge’s salaries to help combat deficits

creating concerns regarding judicial independence• In Alberta, three accused challenged judicial independence for the

purposes of s. 11(d) of the Charter as a result of cuts to judicial salaries

Issue(s)• Does the guarantee of judicial independence in s. 11(d) restrict the

manner by and the extent to which provincial governments and legislatures can reduce the salaries of provincial court judges?

Held• The judicial independence of judges is protected via a constitutional

norm

REFERENCE RE PROVINCIAL JUDGES [1997] 3 SCR 3Lamer CJ (for the majority)• Judicial independence is an “unwritten constitutional principle” that

derives its normativity from the preamble of the Constitution Act, 1867

• The written provisions of the Constitution dealing with judicial independence are NOT exhaustive

• McLachlin in New Brunswick Broadcasting found the term “includes” as justifying existence of unwritten constitutional principles

• But Lamer CJ says our Constitution is based on a “definitive written Constitution”. How do we reconcile this with the existence of unwritten constitutional principles?

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom

REFERENCE RE PROVINCIAL JUDGES [1997] 3 SCR 3Lamer CJ (for the majority)• “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 that 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.”

• The express provisions of the Constitution should be understood as elaborations of the underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867.

REFERENCE RE PROVINCIAL JUDGES [1997] 3 SCR 3Lamer CJ (for the majority)• Independent commissions

tasked to review judicial remuneration in advance of changes and make recommendations to government from which government can rationally depart so long as it provides explanations why, AND no direct negotiations can ever be entered into between judges and the executive, BUT judges can make recommendations.

REFERENCE RE PROVINCIAL JUDGES [1997] 3 SCR 3La Forest J (dissenting in part)• “There is no… historical basis… for the idea that Parliament cannot

interfere with judicial independence. At the time of Confederation (and indeed to this day), the British Constitution did not contemplate the notion that Parliament was limited in its ability to deal with judges.”

• “The express provisions of the Constitution are not, as the CJ contends, “elaborations of the underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867”. On the contrary, they are the Constitution. The assert otherwise is to subvert the democratic foundation of judicial review.”

REFERENCE RE PROVINCIAL JUDGES [1997] 3 SCR 3La Forest J (dissenting in part)• No need for commission.

Changes to judges salaries were not designed to influence judicial decisions are fine, and therefore, general cuts across the civil service, applied equally to judges, would be viewed as acceptable. Direct negotiations are okay.

REFERENCE RE PROVINCIAL JUDGES [1997] 3 SCR 3Upshot?• Unwritten constitutional principle exists (the entire court agrees on

this). What they are, however, is a different question.• According to La Forest J, the Majority plays fast and loose with their

application of unwritten principles because:• (a) they must have truly existed at confederation;• (b) they must not have been displaced by the written text.

REFERENCE RE SECESSION OF QUEBEC [1998] 2 SCR 217Facts• Following their re-election in 1994, the Parti Québécois initiated a

second secession referendum to take place in 1995. The “No” side won by a slight margin.

• During this time, several legal actions were initiated questioning the legality of secession. The federal government initiated a reference to answer the legality of a unilateral declaration of independence.

Issue(s)• Under the Constitution of Canada, can the National Assembly,

legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?

REFERENCE RE SECESSION OF QUEBEC [1998] 2 SCR 217• Court identifies four fundamental and organizing principles of the

Constitution (although this enumeration is not exhaustive): federalism; democracy; constitutionalism and the rule of law; and respect for minorities

• The principles “function in symbiosis”

• “No single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other”

• Each principle is to be interpreted by reference to the structure of the Constitution as a whole

REFERENCE RE SECESSION OF QUEBEC [1998] 2 SCR 217• Federalism

• A legal response to the underlying political and cultural diversities/realities that existed at Confederation and continue to exist today.

• This principle has played a crucial role in the interpretation of the written provisions of the Constitution.

• It “facilitates the pursuit of collective goals by cultural and linguistic minorities, which form the majority within a particular province.”

REFERENCE RE SECESSION OF QUEBEC [1998] 2 SCR 217• Democracy

• “A functioning democracy requires a continuous process of discussion. The Constitution mandates government by democratic legislatures, and an executive accountable to them, ‘resting ultimately on public opinion reached by discussion and the interplay of ideas’.”

• Fundamentally connected to the promotion of self-government, and accommodates cultural and group identities.

• Democracy imposes a duty on participants of Confederation to engage in constitutional discussions to recognize and respond to democratic expressions of desire for change in other provinces.

REFERENCE RE SECESSION OF QUEBEC [1998] 2 SCR 217• Constitutionalism

• All government action must comply with the Constitution• Constitutionalism is not inconsistent with democracy. • Entrenched constitutions just outline what majority must be

consulted for fundamental balances of political power.

• Rule of law (as outlined in the Manitoba Language Rights Reference)1. Law is supreme over the acts of both government and private

persons (one law for all);2. Requires the creation and maintenance of an actual order of

positive laws which preserves and embodies the more general principle of normative order;

3. The exercise of all public power must find its ultimate source in a legal rule

REFERENCE RE SECESSION OF QUEBEC [1998] 2 SCR 217• Protection of Minorities

• There are a number of specific constitutional provisions that protect minority language, religion and education rights.

• This principle is also reflected in provisions that protect minority rights in the Canadian Charter of Rights and Freedoms.

REFERENCE RE SECESSION OF QUEBEC [1998] 2 SCR 217• Democracy & Federalism

• A referendum in which the majority of the population answered “yes” to a clear question of secession would “demand that considerable weight be given to it.”

• Such referendum would give rise to a reciprocal obligation on the federal government and sister provinces to negotiate in a way that would be consistent with democracy, federalism, constitutionalism and the rule of law, and protection of minorities.

• So, what is this? Somewhere between:• A right to secession only to sort out the details; and• No obligation to negotiate in good faith

• “[The federal government and provinces] cannot exercise their rights in such a way as to amount to an absolute denial of Quebec’s rights, and similarly, that so long as Quebec exercises its right while respecting the rights of others, it may propose secession and seek to achieve it through negotiation.”

REFERENCE RE SECESSION OF QUEBEC [1998] 2 SCR 217• Outcome not clear

• “While the negotiators would have to contemplate the possibility of secession, there would be no absolute legal entitlement to it and no assumption that an agreement reconciling all relevant rights and obligations would actually be reached.”

• Non-justiciable• “The court has no supervisory role over the political aspects of

constitutional negotiations. Equally, the initial impetus for negotiation, namely a clear majority on a clear question in favour of secession, is subject only to political evaluation, and properly so.”

REFERENCE RE SECESSION OF QUEBEC [1998] 2 SCR 217• Conclusion

1. Quebec has no right to unilateral secession.2. However, “a clear majority on a clear question” imposes a duty on

the federal government and the provinces to negotiate in good faith.3. This does not mean that the end result of the negotiations have to

produce secession.4. For a negotiation to be legitimate, it must be premised on

democracy.5. Failure to abide by any of the principles identified in the judgment

will result in a lack of legal recognition and the international level.6. The court would play no supervisory role in the process.7. A unilateral right to secession by the principle of self-determination

doesn’t exist for Quebec, as that doctrine is reserved for “peoples” of a colonial empire or oppressed people.

8. All the forgoing doesn’t mean that de fact secession might, in due course, result in the recognition of a new, sovereign nation.

LORD COOKE LECTURE (2008), BEVERLY MCLACHLIN• Basic premise: There are certain aspects so implicit in our

constitutional order that they might be said to be necessarily incidental to it. These principles, while unwritten, have the same constitutional force as express provisions of the Constitution.

• Analogy: Your parents have rules for you about curfews, homework, and extra curricular activities. The absence of an express rule not to lie about your compliance with these rules does not mean that the rule does not exist. It is implicit in the existence of the other rules.

• “Unwritten principles are not the arbitrary or subjective view of this judge or that. Rather, they are ascertained by a rigorous process of legal reasoning. Where, having regard to convention, written provisions and internally affirmed values, it is clear that a nation and its people adhere to a particular fundamental principle or norm, then it is the court’s duty to recognize it. This is not law-making in the legislative sense, but legitimate judicial work.”

CONSTITUTIONAL CONVENTIONS

• Constitutional conventions are binding but not legally enforceable norms that are part of our Constitution.

• This means that if a constitutional convention is breached, the remedy is political not legal.

• In the Reference Re Patriation of the Constitution, the Supreme Court concluded that there was a constitutional convention that a substantial measure of provincial consent is necessary to amend the Constitution.

• This meant that while the Federal Government was obligated to obtain a substantial measure of provincial consent to amend the Constitution, the courts would not enforce compliance with that obligation.

CONSTITUTIONAL CONVENTIONS

• Examples:• The Governor General is appointed on the advice of the Prime

Minister.• The Governor General will almost always act on the advice of the

Prime Minister save for particular crisis-type situations.• Prime Minister will advise the Governor General to dissolve

Parliament if s/he loses confidence, money vote, or general election.

• How to identify a convention?1. What are the precedents?2. Did the actors in those precedents believe they were bound?3. Is there a reason for the rule?

THE PATRIATION REFERENCE [1981] 1 SCR 753Background• The Canadian government sought to patriate the Constitution• Three provinces (Manitoba, Newfoundland and Québec) asked their Provincial

Courts of Appeal on the constitutionality of the federal government’s plan • The federal government agreed to refer all questions regarding the

constitutionality of their proposal to the Supreme Court of Canada.

Issue• Whether there is a constitutional convention that the House of Commons

and Senate of Canada cannot present the Queen with a measure to amend the Constitution without first obtaining the agreement of the provinces?

Held• Unanimous Court: The changes to the Constitution affect the “powers,

rights, or privileges” of the provinces; Constitutional conventions exist in Canada.

• Majority: the federal government has legal authority to unilaterally seek the amendment without provincial consent; it is not the role of the courts to enforce constitutional conventions .

THE PATRIATION REFERENCE [1981] 1 SCR 753Majority (Martland, Ritchie, Dickson, Beetz, Chouinard, and Lamer JJ):• Constitutional conventions are not law – they are not enforceable

by the courts.• Despite the fact that they are not law, they may in fact be

important.• However, violation of a convention is still “unconstitutional in the

conventional sense”.• In this case, there exists a constitutional convention for “substantial

consent” of the Provinces.• The court cannot determine whether the degree of consent present

is sufficient.• In this case, the degree of consent (Ontario and New Brunswick)

was not sufficient.

THE PATRIATION REFERENCE [1981] 1 SCR 753Majority (Martland, Ritchie, Dickson, Beetz, Chouinard, and Lamer JJ):• “Conventions, by their nature, develop in the political field, and it

will be for the political actors, not this court, to determine the degree of political consent required.”

• It is sufficient for the Court to decide that at least a substantial measure of provincial consent is required and to decide further whether the situation before the Court meets this requirement. The situation is one where Ontario and New Brunswick agree with the proposed amendments where the eight other Provinces oppose it. By no conceivable standard could this situation be thought to pass muster.”

THE PATRIATION REFERENCE [1981] 1 SCR 753Minority (Laskin CJC, Estey and McIntyre JJ):• When referred questions, the Court can only answer the specific

question answered.• Constitution conventions “must be recognized, known and

understood with sufficient clarity that conformance is possible and a breach of conformance immediately discernible... Recognized conventions are definite, understandable and understood.”

• The difficulty in defining “substantial consent” results in uncertainty and means that a convention cannot emerge.

OSBORNE V CANADA (TREASURY BOARD) [1991] 2 SCR 69

Facts• The Public Service Employment Act prohibits public servants from

working for or against a candidate or a political party; however, it permits attending political meetings and contributing money.

• Respondents were federal public servants who wanted to participate in political activities and challenged the provision on the basis of sections 2(b) and 2(d) of the Charter

Issue• If public service neutrality is a constitutional convention, can it be

said that it is unconstitutional to enshrine it in law?

OSBORNE V CANADA (TREASURY BOARD) [1991] 2 SCR 69

• “[W]hile conventions form part of the Constitution of this country in the broader political sense,… they are not enforceable in a court of law unless they are incorporated into legislation.”

• Statutes that embody “constitutional conventions do not automatically become entrenched to become part of the constitutional law, but retain their status as ordinary statutes.”

• In this case, nothing shows that there was an intention to confer any status of constitutional entrenchment on such ordinary statutes. Therefore, the challenged provision of the Act is not immune from Charter scrutiny.

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