Draconian but not despotic: the 'unwritten' limits of parliamentary sovereignty in Canada.

• Author: Kazmierski, Vincent

More than a decade after the Quebec Secession Reference, the issue of whether unwritten constitutional principles may be applied as free-standing limits on legislation remains a contentious issue. Interestingly, academics and judges seem to be approaching the issue from different perspectives. Where-as scholars have adopted an "American" focus on the potential dangers to the legitimacy of judicial review that are raised by judges departing from the constitutional text to identify and apply constitutional principles as limits on legislation, Canadian judges appear to be adopting a "British" approach that recognizes the legitimacy of unwritten principles but favours the principle of parliamentary sovereignty above other principles.

This article argues that viewing decisions of Canadian courts through the lens of British common law constitutionalism provides a new perspective on some of the most important appellate and Supreme Court of Canada decisions that have considered the application of unwritten constitutional principles as limits on legislation. It suggests that while these decisions may appear (on their face) to limit the scope of the application of unwritten constitutional principles, the decisions actually include the building blocks for an approach that ultimately recognizes the potential for unwritten principles to limit legislation that substantially interferes with the democratic process.

The article proceeds beyond the parameters of the existing debate concerning the role of unwritten principles in Canadian constitutional law by providing a detailed anal sis of several key cases from a new perspective. In so doing it builds a new framework for understanding the Supreme Court's approach to this issue.

Plus d'une decennie apres le Renvoi relatif a la secession du Quebec, la question de savoir s'il est possible d'appliquer, en rant que limites distinctes, des principes constitutionnels non ecrits a une loi demeure controversee. Il est interessant de noter clue les universitaires et les juges semblent aborder cette question selon differentes perspectives. Alors que les universitaires ont plutot adopte un point de vue > vis-a-vis- des eventuels risques pour la 1egitimite du controle judiciaire clue posent les juges qui s'ecartent du texte constitutionnel afin de degager et d'appliquer des principes constitutionnels en tant que limites imposees a une loi, les juges canadiens seraient enclins a adopter une approche >, laquelle reconnait la legitimite des principes non ecrits tout en donnant preseance au principe de souverainete parlementaire.

Dans cet article, on fait observer que l'examen des decisions prises par les tribunaux canadiens par la lunette du constitutionnalisme de la commmon law britannique permet de voir differemment certains des plus importants jugements rendus par des instances d'appel et par la Cour supreme du Canada entourant l'application des principes constitutionnels non ecrits en tant que limites imposees a la legislation. On laisse entendre que sices decisions semblent (a premiere vue) limiter la portee de l'application de principes constitutionnels non ecrits, elles com rennent en fait les fondements d'une approche, qui, au bout du compte, reconnait la possibilite, pour les principes constitutionnels non ecrits de limiter la possibelite qu une loi empiete sur le processus democratique.

Cel article va a-u-dela des parametres du debat actuel entourant le role des principes non ecrits en droit constitutionnel canadien en presentant une analyse approfondie de plusieurs causes determinantes selon tree nouvelle perspective. Ce faisant, on volt poindre un nouveau cadre d'interpretation de la maniere dont la Cour supreme aborde cette question.

Table of Contents I. INTRODUCTION II. THE CASE FOR PARLIAMENTARY SOVEREIGNTY: APPELLATE DECISIONS A. Bacon v. Saskatchewan Crop Insurance Corp. B. Singh v. Canada (Attorney General) III. VIEWING BACON AND SINGHTHROUGH THE LENS OF THE BRITISH DEBATE A. Sir John Laws B. Sir Stephen Sedley C. Paul Craig D. Trevor Allan IV. THE PRINCIPLE OF PARLIAMENTARY SOVEREIGNTY: THE SUPREME COURT'S APPROACH A. Babcock v. Canada (Attorney General) B. Imperial Tobacco and Charkaoui V. THE PRINCIPLE OF DEMOCRACY AND THE LIMITS OF PARLIAMENTARY SOVEREIGNTY A. Reference re Alberta Legislation B. O.P.S.E.U. v. Ontario (Attorney General) C. Reference Cases VI. CONCLUSION It is well within the power of the legislature to enact laws, even laws some would consider draconian, as long as it does not fundamentally alter or interfere with the relationship between the courts and other branches of government.

Chief Justice McLaehlin in Babcock v. Canada (Attorney General) (1)

1. INTRODUCTION

   The late 1990s witnessed a watershed in Canadian constitutional law. In the course of 11 months between September 1997 and August 1998, the Supreme Court of Canada released two seminal decisions involving the application of unwritten constitutional principles: the Provincial Judges Reference (2) and the Quebec Secession Reference. (3) These decisions propelled unwritten constitutional principles into the forefront of Canadian constitutional discourse. Now, more than a decade later, the issue of the appropriate role for unwritten principles in a constitutional order that includes extensive constitutional texts continues to fuel debate among Canadian scholars and jurists. However, in many cases, the scholars and jurists appear to be engaged in different debates.

   Among scholars, there appears to be a general consensus accepting less radical applications of unwritten constitutional principles in the process of constitutional and statutory interpretation and in the regulation of administrative authority. However, the issue of whether unwritten constitutional principles may be applied as free-standing limits on legislation remains contentious. Academic critics of the application of unwritten constitutional principles as limits on legislation have focused much of their attention on two specific concerns related to the relationship between unwritten constitutional principles and the legitimacy of judicial review. (4) First, critics have argued that the application of unwritten principles will result in judges moving beyond their legitimate role as interpreters of constitutional text and lead them to take on the legislators' rightful role as creators of constitutional text. Second, critics have raised the concern that judges may impose their personal value preferences in the course of identifying and applying unwritten principles that should receive constitutional protection. This academic critique has thus focused on themes most commonly associated with positivist critiques of judicial "activism" within the context of written constitutional instruments and particularly American debates concerning these themes. (5)

   Generally speaking, appellate and lower court judges have also reacted cautiously to the Supreme Court's renewed interest in unwritten principles. Thus, while Canadian courts have been willing to apply unwritten constitutional principles to aid in the interpretation of legislative or constitutional provisions, (6) or to guide the regulation of administrative discretion, (7) they have typically refused to apply unwritten constitutional principles to invalidate legislation. (8)

   Interestingly, the reluctance of Canadian courts to apply unwritten constitutional principles to invalidate legislation has not always reflected the same theoretical concerns about the legitimacy of judicial review that have been raised by academics. Rather than categorically rejecting the application of unwritten constitutional principles as limits on legislation, a number of Canadian judges have applied the principle of parliamentary supremacy to uphold legislation in the face of claims based on the application of other unwritten constitutional principles. In other words, these Canadian judges have accepted the legitimacy of unwritten principles but have tended to privilege the principle of parliamentary supremacy over other fundamental principles, such as the rule of law and the separation of powers. (9) In so doing, these judges have often emphasized the near absolute authority provided by the principle of parliamentary sovereignty in those areas that the Charter does not apply. (10)

   Thus, rather than embroiling themselves in the debates concerning the importance of constitutional text as a discipline on judicial discretion, these Canadian judges have tended to situate their consideration of the application of unwritten principles within the context of the heritage of unwritten constitutionalism that Canada inherited from the United Kingdom through the Constitution Act, 1867. (11) In this way, Canadian judges have taken a similar approach, if not always reaching a similar result, as Canadian academics who have argued in favour of a more aggressive application of unwritten constitutional principles. (12) This approach fits more readily into the British debate concerning the legitimacy of judicial review rather than the American debate, as the British debate focuses on the proper role of judges in the context of unwritten constitutional principles, including the principle of parliamentary sovereignty. By contrast, the American debate concerns itself primarily with the importance of the text of the Constitution as the anchor of legitimate judicial review and as a necessary restraint on judicial preferences. (13)

   In this article, I consider several major Canadian cases in which judges have applied the principle of parliamentary sovereignty to limit the application of other unwritten constitutional principles. In so doing, I focus on the ways in which these decisions may be understood in the context of the British debate concerning the legitimacy of judicial review imposing limits on the principle of parliamentary sovereignty. I argue that the account of parliamentary sovereignty that is advanced in these...