RETHINKING THE INVISIBLE CONSTITUTION: HOW UNWRITTEN CONSTITUTIONAL PRINCIPLES SHAPE POLITICAL DECISION-MAKING.

• Author: MacDonnell, Vanessa A.
• Position: Unwritten Constitutional Norms and Principles: Contemporary Perspectives

"Unwritten" or "common law" constitutionalism has a long history in Canada. To date, the scholarship has tended to focus on the question of when, if ever, it is appropriate for courts to invoke unwritten constitutional principles. Less attention has been paid to how these principles shape political decision-making. In this paper, I suggest that focusing on the situations in which unwritten constitutional principles operate at their most visible and interventionist--to provide a warrant for courts to strike down laws or invalidate government action--emphasizes their less important, if more dramatic, applications. Rather, it is in the day-to-day application of these principles by the executive and the legislature that unwritten constitutional principles perform their most important role.

Le constitutionnalisme << non ecrit >> ou de << common law >> ne date pas d'hier au Canada. A ce jour, la litterature academique s'est concentree sur la question de savoir si et quand il est approprie pour les cours d'invoquer des principes constitutionnels non ecrits. Moins d'attention a cependant ete accordee a la facon dont ces principes peuvent influencer la prise de decision politique. Dans cet article, nous suggerons que de se concentrer sur les circonstances dans lesquelles ces principes operent de maniere particulierement visible et interventionniste--pour annuler une loi ou invalider une action gouvernementale --met l'accent sur leurs applications moins importantes, bien que plus spectaculaires. Nous soutenons que c'est dans l'application au quotidien de ces principes par les pouvoirs executif et legislatif que les principes constitutionnels non ecrits perforaient leur role le plus fondamental.

Introduction I. The Focus on Courts II. The View from the Political Branches III. Amendment Conclusion Introduction

"Unwritten" or "common law" constitutionalism has a long history in Canada. (1) The British North America Act, enacted in 1867, proclaimed that Canada was to have a "Constitution similar in Principle to that of the United Kingdom". (1,2) Then, as now, the UK constitution was primarily an unwritten one. (3) Its legal (as distinct from political) rules were for the most part articulated by judges following the common law method. (4) Since that time, the unwritten constitution has subsisted alongside the written one in Canada, sometimes assisting in its interpretation, and sometimes playing a more direct role. (5) In the 1959 decision of Roncarelli v. Duplessis, (6) for example, a majority of the Supreme Court of Canada concluded that, in directing the manager of the Quebec Liquor Commission not to renew Frank Roncarelli's liquor licence on the ground that he had posted bond for Jehovah's Witnesses, Quebec Premier and Attorney General Maurice Duplessis had violated the rule of law. Justice Rand referred to the rule of law--a principle not then articulated in the constitutional text--as a "fundamental postulate of our constitutional structure." (7) The ripples of this decision were felt throughout the legal system. (8)

The enactment of the Canadian Bill of Rights in 1960 and the Canadian Charter of Rights and Freedoms in 1982 created uncertainty about the continued significance of unwritten constitutionalism. The "implied bill of rights" cases, (9) in which some members of the Court formally ruled on federalism grounds but seemed to give effect to individual rights protected by the common law, (10) were now of little practical consequence given that the rights they secured were codified. (11) Indeed, the nature of the 1982 reforms seemed to suggest that many of the legal aspects of Canada's unwritten constitution had assumed a written form.

Since the early 1980s, however, the Supreme Court has carved out a jurisprudence of "unwritten constitutional principles." In a series of decisions dealing with constitutional questions in contexts ranging from patriation (12) to secession, (13) the Court has recognized several unwritten principles as constitutional, including parliamentary sovereignty, (14) federalism, (15) democracy, (16) constitutionalism, (17) the rule of law, (18) the separation of powers, (19) judicial independence, (20) the protection of minorities, (21) parliamentary privilege, (22) the honour of the Crown, (23) the duty to consult, (24) and the doctrine of paramountcy. (25) The Supreme Court has explained that unwritten constitutional principles find their source in "the general object and purpose of the Constitution," (26) the preambles of the Constitution Act, 1867 and 1982, (27) the operative provisions of the Constitution,28 the Constitution's architecture, (29) the United Kingdom's and Canada's constitutional history, (30) the common law, (31) practice, (32) and logic. (33) Unwritten constitutional principles are the foundational principles "implicit in the very nature of a Constitution." (34) As the Court put it in the Secession Reference, in relation to the democracy principle, these principles are "a sort of baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated. It is perhaps for this reason that [they were] not explicitly identified in the text of the Constitution Act, 1867 itself. To have done so might have appeared redundant, even silly, to the framers." (35)

To date, the scholarship has tended to focus on the question of when, if ever, it is appropriate for courts to invoke unwritten constitutional principles. Less attention has been paid to how these principles shape political decision-making. (36) In this paper, I suggest that focusing on the situations in which unwritten constitutional principles operate at their most visible and interventionist--to provide a warrant for courts to strike down laws or invalidate government action--emphasizes their less important, if more dramatic, applications. Rather, it is in the day-to-day application of these principles by the executive and the legislature that unwritten constitutional principles perform their most important role.

In Part I of this paper, I explain that scholars' approach to unwritten constitutional principles has been distinctly judicial in its focus. Part II explains that important new insights about these principles emerge when they are considered from the standpoint of the executive and the legislature. In particular, I emphasize the important role that unwritten constitutional principles play in setting minimum ethical standards for political actors.

1. The Focus on Courts

   Unwritten constitutional principles form part of Canada's unwritten constitution. Unlike constitutional conventions, which are also part of the unwritten constitution, unwritten constitutional principles are legal principles that have been articulated by courts. (37) They are generally understood to be justiciable, though courts have occasionally concluded that they should limit themselves to recognizing these principles as opposed to enforcing them. (38)

   It is perhaps unsurprising, then, that scholars have tended to focus their attention on how unwritten constitutional principles are applied by courts. When scholars train their gaze on the courts, they tend to conclude that unwritten constitutional principles are a marginal phenomenon. When invoked successfully in litigation, they can produce dramatic results, but such instances are rare. In the Manitoba Language Reference, for example, the Supreme Court concluded that most of Manitoba's laws were of no force or effect because they did not comply with section 23 of the Manitoba Act, 1870, (39) the constitutional document that secured Manitoba's entry into Confederation. Section 23 requires that all statutes be printed in both French and English. Most of Manitoba's laws were written only in English. Rather than strike down the laws, which would have had significant and deeply problematic consequences, the Court relied on the unwritten principle of the rule of law to conclude that the statutes should continue in force until they could be brought into compliance with section 23. (40)

   In the Judges Remuneration Reference, the Supreme Court was asked to provide an opinion on whether the Constitution permitted the executive to decrease the income of provincial court judges. (41) The majority explained that judicial independence is a core constitutional principle that is reflected in several provisions of the Constitution, including sections 96 to 100 of the Constitution Act, 1867, which establish and secure the independence of the superior courts, (42) and subsection 11(d) of the Charter, which confers a right to a trial by an independent tribunal on accused persons. (43) Although the majority formally decided the Reference on the basis of subsection 11(d) of the Charter, Chief Justice Lamer, writing for the majority, explained that "judicial independence is at root an unwritten constitutional principle, in the sense that it is exterior to the particular sections of the Constitution Acts." (44)

   The majority went on to conclude that the salaries of judges could be decreased, but that judicial independence required that any such measure be implemented only after salary recommendations had been sought from an independent commission. Chief Justice Lamer provided detailed guidelines on how such a commission was constitutionally required to operate, including its composition, the frequency with which it was required to convene, and how the government should treat its recommendations. The majority also concluded that the judiciary's independence would be compromised if it were to negotiate directly with the executive over salaries, and that there was a floor below which judicial salaries should not fall in order to preserve independence. (45) This decision has proven to be very controversial, given the inevitable perception of self-dealing. (46)

   In Lalonde v. Ontario (Commission de restructuration des services de sante), (47) the...