Mikisew Cree: A Lost Opportunity for Doctrinal Clarity on Constitutional Principles.

• Author: Martin, Abra
• Position: Canada

CONTENTS I. Introduction 3 II. Constitutional Principles: Origins, Development, and 5 Challenges A. The Jurisprudential Foundation for the Secession Reference 5 1. The 1981 Patriation Reference 7 2. The 1985 Manitoba Language Rights Reference 9 3. The 1993 New Brunswick Broadcasting Case 10 4. The 1997 Provincial Judges Reference 11 B. The Secession Reference 14 1. The Court Turns to Constitutional Principles to Answer 15 a Challenging Question 2. Reactions to the Secession Reference 16 C. The Challenges with Constitutional Principles 19 III. The Persistence of Parliamentary Sovereignty: A Rejection of 22 the "In Symbiosis" Approach to Constitutional Principles? A. A Brief Overview of Parliamentary Sovereignty in Canada 22 B. The Persistence of Parliamentary Sovereignty 24 1. Trial Lawyers Association of British Columbia v British 25 Columbia (AG) (2014) 2. Pan-Canadian Securities Reference (2018) 27 3. Parliamentary Sovereignty, Constitutional Principles, 29 and the Need for Doctrinal Clarity IV. Mikisew Cree: A Lost Opportunity 30 A. The Duty to Consult and its Connection to the Honour of the 32 Crown B. A Lack of Clear Direction: A Divided Court Prioritizes 34 Different Constitutional Principles 1. Justice Karakatsanis Prioritizes the Separation of 35 Powers and Parliamentary Sovereignty 2. Justice Abella Prioritizes the Honour of the Crown: "A 39 Constitutional Imperative" 3. Justice Brown Privileges the Separation of Powers and 42 Parliamentary Privilege 4. Justice Rowe Concurs with Justice Brown and Expounds on 44 Practical Concerns C. Lost in the Confusion: The Court's Reasons Sidestep 44 Important Constitutional Questions V. Conclusion: Constitutional Principles Are a Fine Balance 48 I. INTRODUCTION

In the 1998 Reference re Secession of Quebec (Secession Reference), the Supreme Court of Canada (the Court) put forth a vision of unwritten constitutional principles that "function in symbiosis" with each other. (1) In recognizing federalism, democracy, constitutionalism and the rule of law, and respect for minorities as foundational principles, the Court stated that "no single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other." (2) However, since then, the Court's jurisprudence has been marked by the prominence of another constitutional principle: parliamentary sovereignty. (3) The Court's frequent, and often determinative, invocation of parliamentary sovereignty in the years following the Secession Reference has called into question the "in symbiosis" approach to constitutional principles.

The 2018 case of Mikisew Cree First Nation v Canada (Governor General in Council) (Mikisew Cree) (4) presented the Court with a valuable opportunity to clarify and strengthen its doctrinal framework on the use of constitutional principles in light of its jurisprudence following the Secession Reference. The question at issue in Mikisew Cree, namely whether the duty to consult applied to the legislative process, required that the Court consider the application of multiple conflicting principles, including that of parliamentary sovereignty. In addition to posing important questions concerning how constitutional principles interact, Mikisew Cree also more broadly asked the Court to consider its role in effecting reconciliation under section 35 of the Constitution Act, 1982. (5)

Yet, instead of finding consensus and providing clear direction on these important constitutional issues, the Court split 3-2-1-3. Relying on inconsistent applications of constitutional principles, the majority of the Court concluded that the duty to consult does not apply to the legislative process. However, the four reasons, which privilege different constitutional principles often without substantive engagement with important doctrinal issues or previous jurisprudence, undermine the legitimacy of the unwritten Constitution; they also hinder the ability of the Court to provide clear direction on the important constitutional issues raised by the case of Mikisew Cree.

This paper analyzes the use and development of constitutional principles in Canadian jurisprudence to argue that Mikisew Cree represents a missed opportunity for doctrinal clarity. First, this paper provides an overview of the origins and development of constitutional principles in the Canadian constitutional order, culminating in the "in symbiosis" framework put forth in the Secession Reference (Section II). Second, it analyzes the dominance of parliamentary sovereignty after the Secession Reference, which has brought into question this "in symbiosis" framework and created an unacknowledged hierarchy among constitutional principles subject to certain nuances (Section III). Third, it contends that the Court's divergent and inconsistent use of constitutional principles in Mikisew Cree enabled the Court to avoid addressing important theoretical questions regarding constitutional principles and the status of Aboriginal and treaty rights in the Canadian constitutional order (Section IV). Ultimately, this paper concludes that the Court missed an important opportunity in Mikisew Cree to strengthen its doctrinal framework on the use of constitutional principles, but also more broadly, to provide clear direction on the Court's role, if any, in effecting reconciliation.

2. CONSTITUTIONAL PRINCIPLES: ORIGINS, DEVELOPMENT, AND CHALLENGES

   The Court has a long history of relying on unwritten constitutional principles, with the Secession Reference representing the most comprehensive explanation of constitutional principles to date. While the Court's use of constitutional principles has varied over the course of time, including in the years that followed the Secession Reference, the Court's prominent use of principles in the Secession Reference should not be characterized as a simple anomaly. The Court's jurisprudence leading up to the Secession Reference demonstrates a clear trend of affirming and relying on constitutional principles.

   In order to place the Secession Reference in its proper context, this section provides an overview of the origins and development of constitutional principles. First, it examines the ways in which the unwritten elements of the Constitution were recognized and used prior to the Secession Reference (Section II.A). Second, it discusses the framework provided by the Court in the Secession Reference (Section II.B). Finally, it analyzes the inherent challenges and ambiguities associated with the use of constitutional principles (Section II.C).

   1. The Jurisprudential Foundation for the Secession Reference

      While constitutional principles were brought to the fore in the 1980s and 1990s, it is important to note that the Constitution has long been held to include unwritten elements. For example, as its name suggests, the so-called "implied bill of rights" doctrine from the 1930s to 1950s recognized that the Constitution contained certain implied (i.e. unwritten) rights. While never fully embraced by the entirety of the Court, the implied rights cases are an early manifestation of an approach to constitutional interpretation that recognizes, and relies upon, the unwritten Constitution--an approach that later becomes the dominant one adopted by the Court. Specifically, through four key cases in the 1980s and 1990s, the Court affirmed and developed the unwritten Constitution, laying the jurisprudential foundation for the Secession Reference.

      Beginning with the 1938 Reference re Alberta Statutes (Alberta Press), where the Court struck down a provincial statute prescribing political speech, the "implied bill of rights" doctrine represents early judicial recognition of the unwritten Constitution. (6) As Peter Hogg explains, the theory of an implied bill of rights "was that the Constitution, although lacking an explicit bill of rights (a deliberate choice of the framers in 1867), nonetheless contained an implied bill of rights that restrained the provincial Legislatures and perhaps the federal Parliament from restricting freedom of expression and other fundamental freedoms." (7)

      This doctrine gained further expression in the 1950s when parts of the Court relied upon these implied rights to support invalidating certain laws. For example, in Saumur v City of Quebec, Justice Rand, citing Alberta Press, invoked freedom of speech and religion to invalidate a by-law prohibiting the distribution of pamphlets by Jehovah's Witnesses. (8) Similarly, in Switzman v Elbling and AG of Quebec, Justices Rand, Kellock, and Abbott held ultra vires a law that, in their view, limited freedom of speech by permitting the Attorney General of Quebec to order the closure of buildings used to propagate communism. (9)

      While never adopted by the majority of the Court, the implied bill of rights doctrine is noteworthy in that it marked an important development in Canadian constitutional jurisprudence. As former Chief Justice Brian Dickson wrote extrajudicially:

      For those who had grown up with the British tradition of Parliamentary sovereignty, in which courts are obliged to respect the will of the legislature, the line of reasoning set out in the implied Bill of Rights cases marked a rather novel development. It meant that the highest court was prepared to protect individual rights, even if limited to reviewing legislation on the basis of the division of powers. (10) In recognizing that the Constitution included certain unwritten rights that could inform constitutional interpretation, the implied bill of rights doctrine was an early articulation of what would later become a more explicit adoption of the unwritten elements of the Constitution by the Court.

      Specifically, in the 1980s and 1990s, four major cases signalled the Court's increasing recognition and reliance on constitutional principles and the unwritten Constitution: (1) the 1981 Reference re Resolution to Amend the Constitution (Patriation Reference), (11) which...