Underlying constitutional principles: the legacy of Justice Rand.

• Author: Mullan, David J.
• Position: Canada

So is it with freedom of speech. The Confederation Act recites the desire of the three provinces to be federally united into one Dominion "with a constitution similar in principle to that of the United Kingdom." Under that constitution, government is by parliamentary institutions, including popular assemblies elected by the people at large in both provinces and Dominion; government resting ultimately on public opinion reached by discussion and the interplay of ideas. If that discussion is placed under license, its basic condition is destroyed; the government, as licensor, becomes disjoined from the citizenry. The only security is steadily advancing enlightenment, for which the widest range of controversy is the sine qua non.

Justice Rand in Saumur v. City of Quebec. (1)

INTRODUCTION

Justice Ivan Cleveland Rand died in 1969, the year before I arrived in Canada from New Zealand as a graduate student. While his voice was influential among those who persuaded me to come to this country to undertake further studies, Justice Rand did not speak to me in person but rather through the power of his judgments. In particular, his seminal judgment in Roncarelli v. Duplessis (2) ("Roncarelli") struck a particularly harmonious chord at a time when I was concerned about the absence from New Zealand case law of any developed theory or conception of the role of the courts when faced by the spectre of abuse of executive powers. If Canada had judges as articulate and reflective as this, it was obviously a place in which graduate legal studies could be a stimulating experience.

Within a few short weeks of my arrival in the Fall of 1970, the invocation of the War Measures Act (3) certainly led to second thoughts about whether I had made the right choice, at least in terms of a jurisdiction where placing constraints on unbridled executive power was a major priority. Indeed, the more I looked into Canadian jurisprudence on the subject, the more I learned that there was no judicial consensus as to the appropriate role of the courts in relation to exercises of executive power. (4) However, Justice Rand seldom if ever disappointed, especially as I read more of his judgments in the public law arena and, in particular, the other constitutional and administrative law cases (5) coming to the Supreme Court of Canada from Quebec during the Duplessis era.

At a time when there again is much interest in, indeed controversy about, the extent to which underlying and unwritten principles have a role to play in our constitutional law, it is timely to re-examine Justice Rand's position on the implicit premises of the Canadian constitution and the extent to which they impose constraints on both executive and legislative powers, both federal and provincial. (6)

THE "IMPLIED BILL OF RIGHTS"

While Justice Rand never apparently used the term, the theory of underlying or "unwritten" principles of the constitution with which he is associated is that of "an implied Bill of Rights", said by many to find its justification in the Preamble to what is now the Constitution Act, 1867. One, and perhaps the dominant or most ambitious conception of this theory, is the following: given the expressed desire of the founding provinces to have "a constitution similar in principle to that of the United Kingdom", there were certain underlying principles incorporated into the Canadian constitution. These principles were inviolable in the sense that neither the provincial legislatures nor the Parliament of Canada could remove them.

The theory first surfaced in the judgments of Chief Justice Duff and Justice Cannon in Re The Accurate News and Information Act of Alberta (7) ("Alberta Press") in 1938 in reference to provincial legislation compelling Alberta newspapers to print government news releases as to the objectives of legislation and the difficulties of achieving those objectives. It was then invoked by some of the judges in two cases coming out of Quebec in the 1950s, notably Switzman v. Elbling (8) ("Switzman") and Saumur v. City of Quebec (9) ("Saumur"), both involving attempts by the Duplessis government to suppress the practice of their faith by Jehovah's Witnesses.

Leaving aside for the moment the merits of the argument for such an implied Bill of Rights, it is important to record once again the limited nature of its acceptance in these three cases. First, in none of the three judgments or elsewhere (at least at that time) did it attract the support of a majority of the Supreme Court of Canada, even as a constraint on provincial legislative activity. Thus, only three (10) of the six justices based their judgments on that theory in the Alberta Press case, with the other three (11) expressly declining to pronounce on this question. Similarly, it was not possible to construct a majority in either Switzman or Saumur accepting its legitimacy as part of Canada's constitutional order. Secondly, of the justices who accepted the validity of the theory, only one, Justice Abbott in Switzman, was prepared to go as far, in what even he described as dicta, as to see it as a limitation on the legislative jurisdiction of Parliament. (12) Even Justice Rand located his discussion of the theory clearly within the domain of challenges to provincial legislative action. (13) However, in Switzman, he made clear that he was not foreclosing the possibility that the principles might be deployed against federal legislation- a matter that "must await future consideration" (14) Thirdly, the scope of the protections derived from the implied Bill of Rights appeared to have been limited in the sense that, in all three cases, the focal points were those of freedom of speech, political expression and the press, freedoms that the relevant justices saw as essential for the maintenance of parliamentary institutions. (15) Fourthly, while there were frequent references to the Preamble of the Constitution Act, 1867, the elaboration of the theory was more broadly-based. This was particularly clear from the judgment of Justice Rand in Switzman, where he described the argument as derived not just from the Preamble but the overall structure of the Constitution Act, 1867:

Indicated by the opening words of the preamble in the Act of 1867, reciting the desire of the four Provinces to be united in a federal union with a constitution "similar in principle to that of the United Kingdom", the political theory which the Act embodies is that of parliamentary government, with all its social implications, and the provisions of the statute elaborate that principle in the institutional apparatus which they create or contemplate. (16) In other words, the foundation on which at least this version of the theory is built is not only the Preamble but also, as Dale Gibson has argued, (17) those parts of the Constitution Act, 1867 which deal with the legislative branch and constitutionalise the "Parliament of Canada" and the legislative assemblies of the provinces. It did not involve the Preamble as an independent, free-standing source of implicit constitutional rights or protections.

Judicial support was therefore equivocal at best and the seeming ambit of the doctrine's operation limited. Indeed, any lingering weight that the theory had in Canadian constitutional law seemed to suffer a mortal blow from the Supreme Court of Canada in Canada (Attorney General) v. Montreal (City) (18) ("Dupond"), where the implied Bill of Rights was advanced as a basis for striking down a Montreal by-law regulating assembly as contrary to freedoms of "speech, of assembly and association, of the press and of religion". However, according to Justice Beetz, for the majority:

None of the freedoms referred to is so enshrined in the Constitution as to be above the reach of competent legislation. (19) This appeared to be the death-knell once and for all of the implied Bill of Rights theory!

Nonetheless, the Court and indeed Justice Beetz himself had second thoughts. In a 1995 article, Andree Lajoie reported a private conversation with Justice Beetz in which he stated that, in the course of writing the judgment in Dupond, he felt himself becoming a conservative but not being able to help it! (20) Obviously, he must have reconsidered because in 1985 he concurred with Chief Justice Dickson in Fraser v. Public Service Staff Relations Board (21) in which the then Chief Justice gave new credence to the implied Bill of Rights theory. (22) Even more significantly and without any reference to what he had said in Dupond, Justice Beetz's concurring judgment in OPSEU v. Ontario (23) went so far as to extol the version of the theory presented by Justice Abbott in Switzman:

There is no doubt in my mind that the basic structure of our Constitution, as established by the Constitution Act, 1867, contemplates the existence of certain political institutions, including freely elected legislative bodies at the federal and provincial levels. (24) After references to both the Alberta Press case (25) and Justice Abbott's reasons for decision in Switzman, (26) he then continued:

Speaking more generally, I hold that neither Parliament nor the provincial legislatures may enact legislation the effect of which would be to substantially interfere with the operation of this basic constitutional structure. (27) However, as Justice Beetz himself observed in the very next paragraph, to the extent the Charter gave even broader protections to political rights than could be comprehended within the scope of the basic structure of the Constitution Act, 1867, it was unlikely that such future claims would arise all that frequently! (28)

Indeed, this became even clearer when one considers the impact of the constitutional changes of 1982. There now seem to be very limited opportunities for invocation of an implied Bill of Rights argument, at least of a democratic, parliamentary institution-enhancing variety. It now takes a constitutional amendment to alter provisions of the...