Symposium: Foundation and Framework: How Unwritten Constitutional Principles Shape Political Decision-Making

Vanessa MacDonnell

University of Ottawa

Since the 1980s, the Supreme Court of Canada has articulated a jurisprudence of “unwritten constitutional principles.” In a series of decisions dealing with constitutional questions in contexts ranging from patriation to secession, it has recognized a number of unwritten principles as constitutional, including parliamentary sovereignty, federalism, democracy, constitutionalism, the rule of law, the separation of powers, judicial independence, and the protection of minorities.

To date, the jurisprudence and scholarship has tended to focus on the question of when, if ever, it is appropriate for courts to invoke unwritten constitutional principles, whether to invalidate legislation or government action or for some other purpose. Less attention has been paid to how these principles shape political decision-making in a forward-looking, proactive manner. In this short blog post I suggest that focusing on the situations in which unwritten constitutional principles operate at their most 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 unwritten constitutional principles and other constitutional values by the executive and the legislature that the fundamental pillars of constitutional democracy are secured.

Unwritten constitutional principles anchor Canada’s constitutional order. While they may occasionally function in the same way as negative rights, in the sense of grounding an infringement claim for which a judicial remedy is sought, they are best understood as “the underlying principles that animate the whole of [the] Constitution.” As animating principles, they influence how law, constitutional and otherwise, is interpreted by the courts. They also shape the decisions of political actors, whose primary responsibility it is to respect, protect and advance these principles and the constitutional order they secure. Given that only a fraction of legislation and state action is ever judicially reviewed, it is essential to examine how the executive and the legislature internalizes these principles, a point Janet Hiebert has made eloquently in her work on the Canadian Charter of Rights and Freedoms.

Robert Alexy once stated that “a good constitution must be both a foundation and a framework.” Unwritten constitutional principles perform both of these functions. As the Supreme Court explained in the Secession Reference, unwritten constitutional principles form part of the core “assumptions” of Canadian constitutionalism and anchor the textual elements of the constitution. They also operate alongside other aspects of the constitution to supply the executive and the legislature with a framework for ethical, constitutional governance.

The importance of this latter function of unwritten constitutional principles, and of the Constitution more broadly, has become increasingly obvious as evidence of democratic decline emerges around the world. A pressing question being debated in the United States and elsewhere at the moment is whether the Constitution and its core principles can continue to thrive when political actors are determined to achieve their own ends irrespective of the limits the Constitution places on their authority. In many cases, the only recourse for small but cumulatively significant incursions on unwritten constitutional principles is the ballot box. Large-scale constitutional controversies may engage political accountability mechanisms (questions in Question Period or committee investigations, for example) or lead to litigation. But it is far from clear that either members of the legislature or the courts are capable of preventing the deep damage to the constitutional order caused by persistent political disregard or neglect of constitutional principles. For as Jamal Greene explains, “The… Constitution lives less in its sparse text than in the connective tissue its normative order forms and reinforces.”

In short, the effectiveness of the Constitution’s framework for ethical governance currently depends to a significant extent on political actors’ willingness to internalize it. Faced with evidence of democratic decay in the US, Greene proposes a series of reforms intended to reinvigorate the “democratic culture”, including increasing public financing of independent media and creating independent institutions for the dissemination of information. Canadian scholars should be thinking in a similar vein about how best to ensure the take-up and implementation of unwritten constitutional principles by the executive and the legislature. As a starting point, the existing Charter vetting process, which involves government lawyers assessing proposed legislation for compliance with the Charter, could be expanded to include unwritten constitutional principles. So too could the newly-legislated requirement that the Minister of Justice table Charter Statements when government legislation is introduced. The scholarship of Hiebert and others amply demonstrates the benefit of these processes for the consideration of Charter issues within the executive. Although unwritten constitutional principles may not always add much to the vetting process, at the margins, an explicit focus on unwritten constitutional principles (I am thinking of the democracy principle in particular) may well have a positive impact on the content of proposed legislation and on the quality of legislative debate.

The Supreme Court has explained that unwritten constitutional principles are foundational to the constitutional order. But the relative infrequency with which they appear in the case law tends to create the impression that these principles do not do much work in the day-to-day. Nothing could be further from the truth. It is also clear, however, that these principles are susceptible to disregard by politicians. For these reasons, further thought is needed about how best to prompt politicians to consider these principles systematically as part of the law and policy-making process.

The author is grateful to Jonathan Shanks for his comments on an earlier version of this post, and to Ann Chaplin for conversations on some of the topics discussed in this post

Vanessa MacDonnell is Associate Professor at the University of Ottawa and Scholar-in-Residence at the Department of Justice Canada.

Suggested Citation: Vanessa MacDonnell, ‘ Foundation and Framework: How Unwritten Constitutional Principles Shape Political Decision-Making’ IACL-AIDC Blog (12 June 2019) https://blog-iacl-aidc.org/unwritten-constitutional-principles/2019/6/12/foundation-and-framework-how-unwritten-constitutional-principles-shape-political-decision-making