Guest Editors' Introduction: Contemporary Perspectives on Unwritten Constitutional Principles

Vanessa MacDonnell & Se-shauna Wheatle

University of Ottawa Faculty of Law & Durham Law School

On March 22, 2019, a group of scholars and practitioners convened at the University of Ottawa Faculty of Law for a full-day symposium on the role of unwritten constitutional principles in contemporary constitutional law. Scholars from Canada, Jamaica and the United Kingdom presented innovative new research, a portion of which is featured in this blog symposium. The day also included a moderated discussion between three of the lawyers involved in the ongoing Toronto City Council litigation. As one of us explained in a previous IACL blog post, this litigation was initiated in 2018 after legislation was enacted in Ontario reducing the size of Toronto City Council from 47 to 25 wards during an ongoing municipal election. One of the legal arguments advanced in the case was that the Better Local Government Act violated the unwritten constitutional principle of democracy. A similar position was adopted by some legal commentators in the media. While these arguments were ultimately unsuccessful before the court at first instance, they thrust the concept of unwritten constitutional principles into a rare position of prominence in the public discourse.

The status of unwritten constitutional principles is an important issue in a number of jurisdictions. However, the issue can arise against very different backdrops. For example, Canada possesses an at least partly codified written constitution, whereas in the United Kingdom, the constitution is uncodified, with significant unwritten elements. Tentative moves in the direction of, and then away from, statutory rights protection in the UK have created considerable uncertainty around what role the common law will and ought to play in protecting human rights. While the status of unwritten constitutional law might be described as more stable in Canada, the jurisprudence on unwritten constitutional principles has been the subject of significant criticism. Moreover, the political events giving rise to the Toronto City Council litigation demonstrate the need to carefully reflect on the unwritten aspects of Canada’s Constitution.

The contributions to this blog symposium are rich in their diversity. The first post by Kate Glover Berger examines how the unwritten principle of judicial independence shapes the process by which the Canadian Judicial Council decides whether a judge should be removed from office. She concludes from her case study that “unwritten constitutionalism can make concrete demands on the design of individual institutions and the public order as a whole.”

Next, Peter Oliver looks at how the preamble of the Canadian Constitution Act, 1867 has historically been interpreted. The Supreme Court has drawn on the preamble, which states that Canada is to have “a Constitution similar in principle to that of the United Kingdom,” as an important source of unwritten constitutional principles. Oliver finds that the pre-1982 case law did not understand the “similar in principle” language to create a repository of unwritten principles to which judges might have resort to fill “gaps” in the written Constitution, as the Supreme Court suggested in the Secession Reference. He nonetheless argues that the post-1982 case law can be justified jurisprudentially by a “more sustainable version” of Dworkin’s reflective equilibrium.

In her contribution, Lynda Collins posits that ecological sustainability should be understood as an unwritten constitutional principle. She argues that the principle is consistent with the Supreme Court of Canada’s definition of unwritten constitutional principles in the Secession Reference. This principle could be pressed into service in a range of contexts, including in ongoing pipeline litigation, in structuring the discretion of administrative decision-makers in environmental matters, and in public policy discussions.   

Christina Lienen’s post traces the development of common law constitutional rights protection in the United Kingdom. She explains that developments in common law constitutionalism have gradually moved in the direction of more robust protection for individual rights. While she is generally supportive of these developments, she also notes that common law constitutionalism is inherently “reactive” and tends to favour procedural over substantive rights.

Finally, Vanessa MacDonnell examines how unwritten constitutional principles shape political decision-making in Canada. She argues 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.

We hope you enjoy the blog symposium!

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

Se-shauna Wheatle is an Associate Professor in Law at Durham Law School, University of Durham.

Suggested Citation: Vanessa MacDonnell & Se-shauna Wheatle, ‘Guest Editors' Introduction: Contemporary Perspectives on Unwritten Constitutional Principles’ IACL-AIDC Blog (27 May 2019) https://blog-iacl-aidc.org/unwritten-constitutional-principles/2019/5/25/introduction-contemporary-perspectives-on-unwritten-constitutional-principles

Publication Schedule

Monday 27 May:

Vanessa MACDONNELL and Se-shauna WHEATLE – ‘Introduction: Contemporary Perspectives on Unwritten Constitutional Principles’

Wednesday 29 May:

Kate GLOVER BERGER – ‘The Demands of Unwritten Constitutionalism on Institutional Design’

Monday 3 June:

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

Wednesday 5 June:

Lynda COLLINS, ‘The Unwritten Constitutional Principle of Ecological Sustainability: A Lodestar for Canadian Environmental Law?’

Monday 10 June:

Christina LIENEN – ‘The English Common Law as a Vehicle for the Protection of Uncodified Constitutional Rights’ 

Wednesday 12 June:

Vanessa MACDONNELL – ‘Foundation and Framework: How Unwritten Constitutional Principles Shape Political Decision-Making’