Symposium: ‘A Constitution Similar in Principle to that of the United Kingdom’: Constitutional Principles and the Importance of Context – A Sustainable Jurisprudence

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Peter Oliver

University of Ottawa Faculty of Law

In recent years, unwritten constitutional principles have often found their place in Canadian constitutional law via their supposed foothold in the part of the Preamble to the Constitution Act, 1867 that refers to 'a Constitution similar in principle to that of the United Kingdom'. Principles such as judicial independence, democracy, federalism, constitutionalism and the rule of law, and protection of minorities have been derived from the preamble. In this post, which is based on a longer paper presented at a recent symposium on unwritten constitutional norms and principles, I look through over a hundred years of Supreme Court of Canada case law in order to determine what that preambular phrase has meant over time.

It turns out that in the years immediately after 1867, it largely referred to what we now call political constitutionalism, or the idea that constitutional questions should generally be resolved by democratically-elected institutions. Concepts such as ‘parliamentary sovereignty’, ‘parliamentary privilege’, and the many ‘constitutional conventions’ that filled out the essentially uncodified Constitution were manifestations of this political constitutionalism. Therefore, as a historical matter, it appears mistaken to suggest that the preamble was an ‘invitation’ to courts to fill ‘gaps’ in the Constitution, as the Supreme Court of Canada suggested in the 1990s. For the first 125 years of Confederation, the preamble was used in a constitutionally more orthodox fashion, that is, as an aid to interpretation.

How has it come to be that the preamble is now associated with legal constitutionalism, or the idea that constitutional questions should be resolved -- gaps filled – by the courts?  And if the Supreme Court of Canada’s purported textual justification for this tendency (the 1867 preamble) is not very convincing, then are there better justifications available?  I propose a reading of the preamble and constitutional principles that is attentive to text, case law, principle and an evolving Canadian context: what might be called a ‘sustainable jurisprudence’.  A more detailed account of the latter concept is in preparation.

Even if the preamble is not a convincing justification for the Court’s gap-filling role, other jurisprudential developments since 1982 might serve. The 1980s happened to coincide with the growing influence of the ideas of Ronald Dworkin, according to which ‘hard cases’ (including gaps in the text of the Constitution) can and should be filled with interpretations based in principle and political morality. This approach apparently obviates any need to find a foothold in the preamble. Therefore, for example, when a century’s worth of unilingual Manitoba laws were deemed to violate the constitutional text in the Manitoba Language Reference of 1985, the Supreme Court used other countries’ constitutional experience and the principle of the rule of law to inform its bold use of suspended invalidity, delaying the effects of its opinion until the laws could be brought into compliance. While it is true that ‘the rule of law’ formed part of the United Kingdom constitution, nothing like this sort of muscular deployment of the principle could be grounded in the UK’s more restrained traditions of judicial power. A deeper jurisprudential movement seemed to explain this and subsequent cases, including the Supreme Court’s well-known Secession Reference judgment of 1998.

If the jurisprudential approach of Dworkin and his successors or the tradition of common law constitutionalism had truly taken hold in the 1980s and 1990s, then it would have been hard to see where the courts’ brief stopped in the name of deciding hard cases or filling gaps. And yet the courts clearly began to perceive limits as to how far they could go in reasoning from principles.  The final part of the paper tries to explore the jurisprudential foundations for the courts’ new approach to principles.

As Mark Walters has identified, Dworkin’s earliest writing on constitutional reasoning spoke of a process of ‘reflective equilibrium’, a sort of ‘back and forth’ between, on Dworkin’s account, the underlying principles on the one hand, and the ongoing intuitions as to how to realize those principles as represented by the common law on the other hand.  In a later rendition, this account was set out using the compelling analogy of the chain novel: each judge’s chapter based on his or her best reading of what had come before. Dworkin’s model had the advantage, formally speaking, of confining the judges’ tools to rules, principles and even morality developed in the past, and applied in the present. All our instincts tell us that this is the proper way for law to work. The problem with Dworkin’s version of reflective equilibrium is that, by confining itself in this way, it risked becoming less relevant and less effective in the society to which it was meant to apply. Laws and legal systems, unlike chain novels, have to be relevant, effective and sustainable in the real world.

Another version of reflective equilibrium, a more sustainable version it is argued here, imagines a back and forth not between principle and the intuitions represented in common law cases, but between principle and the actual context in which those principles must play out.  This version of reflective equilibrium is expressly rejected by Dworkin, probably because it opens up law-making in hard cases to accusations of non-legal policy making. I argue that the application of general principles in hard cases is always a matter of judgement, in its more traditional sense of wisdom or statecraft. In this version, taking context seriously is not just desirable, it is essential to the law’s future effectiveness: its sustainability. And, as counter-intuitive as it might sound, those who care about the rule of law should be just as concerned about this forward-looking, judgement-based aspect of law as with its more familiar, binary (law/not law) past-focussed aspect.

At this point, it is usually, and rightly said, that judges are far from infallible (not to mention unelected) assessors of the context into which the law plays out.  It does not follow, however, that with their limited abilities to assess in mind, judges should always leave the law as it is. To do nothing can be as ‘activist’ as to do something in any particular hard case. What good judges generally do in hard cases is to take a measured step in what seems to them to be the best direction, taking into account such rules and principles as exist and such consideration of the context into which their judgement will play out as their experience and counsels’ pleadings allow.  Without suggesting that Canadian courts always employ this jurisprudential method, I do think that it points to some important elements in the current Canadian attempt to balance political and legal constitutionalism.

If this reading and analysis is correct, then Canadian courts have not simply moved from dominant political constitutionalism of 1867-1982 to dominant legal constitutionalism from 1982 onwards. Instead, Canadian courts are moving towards an important compromise between the values that animated both periods of Canadian constitutional history. This more sustainable jurisprudence involves, as it must, respect for the many rules that constitute law in its traditional, binary form. However, in the sorts of hard cases which regularly appear before the Supreme Court of Canada, a more sustainable jurisprudence provides courts with guidance in applying general principles to the context in which the courts’ eventual judgments will play out. 

What, more concretely, does this mean? In the Manitoba Language Reference, referred to above, one version of the rule of law (focussed on past rules rigorously applied in the present) would have resulted in the invalidation of a century-worth of Manitoba laws, with the chaos that would have ensued. A more future-oriented and contextual application of the rule of law principle resulted in the more nuanced and viable approach that the court preferred. A sustainable jurisprudence recognizes the role of both principle and context in hard cases, and arguably provides a better account of the Supreme Court of Canada’s post-1982 practice.

Peter Oliver is Full Professor and Vice Dean of Research in the Common Law Section of the Faculty of Law, University of Ottawa.

Suggested Citation: Peter Oliver, ‘A Constitution Similar in Principle to that of the United Kingdom: Constitutional Principles and the Importance of Context – A Sustainable Jurisprudence’ IACL-AIDC Blog (3 June 2019)