J. Use of Unwritten Constitutional Principles in Subsequent Litigation

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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As discussed above, the rule of law was recognized in the Quebec Secession Reference53as one of four unwritten constitutional principles that are fundamental to the Canadian constitutional order. The rule of law is also mentioned in the preamble of the Charter and is promoted by the requirement under section 1 of the Charter that all limits on Charter rights must be "prescribed by law." The rule of law requires that the law apply to governmental officials as well as private citizens; that there be a positive legal order and that the relationship between the state and the individual be regulated by law.54This understanding of the rule of law has been said by the Court to focus on the existence and application of the law and not on its content. "So understood, it is difficult to conceive of how the rule of law could be used as a basis for invalidating legislation . . . based on its content."55The Court has made reference to the unwritten principle of the rule of law in a number of cases. In a series of references involving the setting of judicial salaries, the Court has cited the unwritten principle of the rule of law in support of its conclusion that a commission independent of the judiciary and the state should be able to make recommendations to the legislature about judicial salaries.56This decision resulted in strong criticism by some including La Forest J who argued in dissent that the Court should not resort to unwritten constitutional principles.57The Court also relied on unwritten constitutional principles in the Quebec Secession Reference discussed above.

In recent years, the Court has been more hesitant to rely on unwritten constitutional principles. The Court has rejected a claim made by tobacco companies that provincial legislation that allowed the government to bring actions against them related to health-care costs infringed the rule of law because it retroactively targeted them. The Court

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concluded that the appeals to unwritten principles of the rule of law relating to the desirability of general and prospective legislation "fail to recognize that in a constitutional democracy such as ours, protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box."58The Court has also held that "general access to legal services is not a currently recognized aspect of the rule of law" and as such could...

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