AuthorPal, Michael
PositionUnwritten Constitutional Norms and Principles: Contemporary Perspectives

Introduction I. Democracy in the Canadian Constitution: A Brief Overview II. Critiques of the Unwritten Principles A. Legitimacy Critique B. Interrelatedness C. Implications for die Content of Unwritten Principles III. The Content of the Democracy Principle A. Thin Versus Thick Democracy B. Thin Democracy: Accountability and Equality IV. The Scope of the Democracy Principle A. Referendums 1. The Right to Vote and Voter Qualifications B. Municipal Elections Conclusion Introduction

This article considers the content of the unwritten principle of democracy and its potential relevance in Canadian constitutional interpretation. The unwritten constitutional principles of federalism, constitutionalism and the rule of law, democracy, and the protection of minorities enunciated into being by the Supreme Court of Canada (the Court) in the Secession Reference (1) have received extensive academic attention. Much yet remains unknown, however, about the democracy principle. Post-Secession Reference, important and substantial scholarly work has taken on justifying or critiquing the use of unwritten principles in constitutional interpretation. The courts have assessed the meaning of the principles of federalism, the rule of law, and judicial independence in some detail. The content of the democracy principle has received less elaboration, apart from the Court's comments in the Secession Reference, and indirect definition implied from judicial interpretation of the related principle of parliamentary sovereignty. (2)

Democracy is an "essentially contested concept," meaning one that "inevitably involve[s] endless disputes about [its] proper uses on the part of [its] users." (3) There are radically competing notions of what "democracy" entails. Gunter Frankenburg writes that "[t]he conceptual histories of democracy span more than 2,500 years and refer to a variety of normative orders, institutional arrangements of political decision-making, social and economic structures, and basic values of a community." (4) The contested nature of the concept and its pohtical salience muddy what vision of "democracy" should prevail in constitutional interpretation. (5) Perhaps resulting from this conceptual uncertainty, the scholarship has rarely tackled head-on the meaning of democracy as a legal principle in Canada. (6) Delineating the content of the unwritten principle for the purposes of constitutional interpretation from the concept of democracy in the abstract is, therefore, an important task.

Focusing on the content of the principle of democracy is also particularly relevant at this moment in Canadian constitutionalism. First, there is a lack of clarity regarding its content in the case law. Claimants have raised the principle recently in constitutional litigation in a number of different contexts, from electoral reform and referendums (7) to municipal elections and electoral boundaries, (8) among others. The unwritten principle of democracy remains of direct contemporary relevance.

Second, the Canadian Constitution is showing its age. The Constitution Act, 1867 and even the more recent Constitution Act, 1982 simply do not address important aspects of contemporary democracy, no matter the interpretive approach adopted to deciphering the text. There are gaps in the constitutional text in relation to the conduct of elections and representation, for example. (9) While textual silence in a constitution can of course be deliberate, (10) the basic fact of representative democracy remains underspecified in the Canadian Constitution. The lack of specificity with regard to "democracy" in the text means the unwritten principle has a lot of work to do. Expectations for constitutional protection of democracy have shifted quite rapidly since 1982, as have global trends in constitutional design of democracy. Many influential constitutions, for example, protect a much larger set of political rights and electoral institutions than the text of the Canadian Constitution. (11)

Third, hovering in the background of most debates in Canadian constitutional law is the reality that constitutional amendments requiring any degree of federal-provincial consensus are nearly impossible, politically. (12) Put bluntly, we are stuck with the text that we have for the near future. Without a realistic chance of amendment, there will continue to be pressure on courts to resolve constitutional disputes where the text provides little clear guidance or no longer reflects the social, economic, or demographic facts of Canada. (13) Given that the text in relation to democracy has gaps and is out of date in relation to global practice, there is likely to be ongoing impetus to resort to the unwritten principle. (14)

This article argues that we should interpret the unwritten principle as embodying a "thin" or procedural account of democracy tied to meaningful participation, rather than a "thick" version imposing specific outcomes or broader obligations. The article proceeds as follows. Part I details the ways in which "democracy" has manifested itself in the Canadian Constitution and the gaps in the text. Part II presents the most forceful critiques raised about the use of unwritten principles in constitutional interpretation, namely, that (1) judicial review based on unwritten principles lacks legitimacy, and (2) there is an "interrelatedness" problem, in that the principles are incoherent in relation to one another. (15) Part III engages with these critiques to argue that a "thin" or procedural version of democracy best responds to the legitimacy and incoherence critiques. In relation to the legitimacy critique, a thin version of democracy is compatible with the existing constitutional text and has less scope for the arbitrary imposition of any particular judge's policy preferences. In relation to the incoherence critique, I argue that a thin version of democracy is a better fit with the other principles. A thin version of democracy would require meaningful participation through fair procedures in what I call democratic events. This interpretation of the principle furthers the values of political accountability and political equality. Part IV then applies this thin understanding of the unwritten principle in two contexts either not addressed, or only partially so, by the constitutional text: 1) referendums; and 2) municipal elections. I outline how the unwritten principle should result in fair procedures in both of these democratic events. I conclude the article by briefly considering the future of the unwritten principle of democracy.

  1. Democracy in the Canadian Constitution: A Brief Overview

    The Constitution Act, 1867 is parsimonious in its treatment of democracy. It does not expressly determine democracy's contours in any great detail, largely because of the assumption that Canada would follow the British model of an unwritten constitution. Accordingly, parliamentary sovereignty was the pre-eminent feature of democracy. (16) The text creates a bicameral Parliament with the qualifications for Senators (17) set out along with other features of the Upper House. (18) Constitutional conventions largely determine the relationship between the different branches of government. (19) Parliament controls its own internal operations through parliamentary privilege (20) and the operation of the conventions. The provisions on federalism delineate separate, democratically elected orders of government accountable to different publics. (21) Where the text does go into detail is on representation, particularly geographic representation. The text establishes the names, number, and boundaries of the early electoral districts, as well as the number of seats assigned to each province in the House (22) and Senate. (23)

    The Constitution Act, 1982 addressed the functioning of legislatures by setting limits on their traditional freedoms. (24) Parliament and each legislature are required to sit at a minimum once per year (25) and cannot continue more than five years between elections, (26) except in circumstances of "war, invasion or insurrection." (27) The procedures on constitutional amendment in Part V of the Constitution Act, 1982 also reinforce the focus from 1867 on representation of the provinces in a diverse federation. The smaller provinces have a guarantee in Part V that the existing rule that they can have no fewer MPs than they have Senators can only be changed with unanimous consent. (28) The "proportionate representation" of the provinces in the House set out in section 51 of the Constitution Act, 1867 can only be altered according to the 7/50 formula. (29) Part V as interpreted by the Court also locks in the method of selecting Senators, as the Court has read down the unilateral amendment procedure in section 44. (30)

    The Canadian Charter of Rights and Freedoms brought with it a host of entrenched rights and freedoms of direct relevance to elections. (31) Section 3 provides the right to vote in federal and provincial elections as well as to stand as a candidate. Parliament and the provincial legislatures frequently treated the right to vote as a privilege within their purview to restrict or rescind, prior to 1982. (32) Outright bans on voting by a defined group of citizens appear impermissible. (33) The only remaining group of citizens barred from voting are individuals under the age of eighteen. (34) Courts have also interpreted the provision as protecting much more than simply the right to cast a ballot. Section 3 protects "effective representation" in the allocation of the number of electoral districts and the design of their boundaries. (35) The "meaningful participation" of electors through the political parties that they choose to support is also included. (36) The text appears on its face to limit the application of section 3 to federal and provincial elections. It has been interpreted to date to exclude territorial, municipal, school board, and band council...

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