‘By: Jordan L. Samaroo’[i]
Canadians often struggle to fully grasp the makeup of Canada’s constitutional framework, especially with respect to the role of unwritten constitutional principles (UCPs). This confusion is likely due to our Constitution being written and unwritten, which means that while it lives on paper through constitutional texts and judicial decisions, it is also embodied through our political actors as a set of conventions and derived from the structure of our Constitution in the form of unwritten principles. Fortunately, the Supreme Court of Canada recently issued some guidance on the role of UCPs and their (in)capacity to invalidate legislation in Toronto (City) v Ontario (Attorney General).[ii]
In this 5-4 decision, the majority (comprised of Chief Justice Wagner and Justices Brown, Moldaver, Côté, and Rowe) employed the principles of judicial restraint, originalism, and textualism (described in the United States as the three pillars of conservative legal thought)[iii] to rule in favour of the Attorney General of Ontario. The dispute was regarding the provincial legislature’s constitutional authority to modify the conditions of an ongoing municipal election campaign.[iv] In a book review of the late U.S. Supreme Court Justice Antonin Scalia, Harvard Law School’s Noah Feldman describes judicial restraint as the limitation placed on a judge’s power to apply the law as is without making ‘legislative judgements.’ Feldman defines originalism as the belief that constitutional provisions carry the same meaning today as they did at the time of their adoption. Finally, Feldman explains textualism as the statutory interpretation approach that places primacy on the text rather than the ‘subjective legislative intent’ or ‘broader social purposes’ underpinning the legislation in question.[v] The dissenters (comprised of Justices Abella, Karakatsanis, Martin, and Kasirer) rebuked the majority for this rare American import, triggering an uncertain future for the role of UCPs in Canada’s constitutional framework.
A month after Ontario’s 2018 election, Premier Doug Ford’s newly elected Progressive Conservative government enacted the Better Local Government Act, 2018,[vi] to reduce the number of municipal wards in the City of Toronto from 47 to 25. The City of Toronto immediately challenged the constitutionality of the law invoking sections 2(b) (freedom of expression) and 3 (democratic rights) of the Charter.[vii] In addition, the City of Toronto raised interpretative arguments premised on the unwritten principle of democracy in order to narrow legislative authority over municipalities under subsection 92(8) of the Constitution Act, 1867 and to extend the democratic rights of section 3 of the Charter to municipal elections.[viii] These interpretative arguments are contemplated below.
Writing for the majority, Chief Justice Wagner and Justice Brown first employed a textualist approach, holding that “[UCPs] are not ‘provisions of the Constitution.’ Their legal force lies in their representation of general principles within which our constitutional order operates and, therefore, by which the Constitution’s written terms—its provisions—are to be given effect.”[ix] The majority found that the democratic principle cannot be used to invalidate legislation independent of any written constitutional foundation.[x] UCPs can however be “used in the interpretation of constitutional provisions”[xi] and “to develop structural doctrines unstated in the written Constitution per se ….”[xii] This conclusion necessarily places more weight on the text of our constitutional provisions rather than on the values or beliefs that operate as principles. The majority reasoned that any legislation undermining the structure of the Constitution could be addressed via “purposive textual interpretation.”[xiii]
To further buttress this textualist approach, the majority addressed the impact of UCPs on sections 1 and 33 of the Charter, which generated palpable discord between Justices Brown and Abella during the hearing. The majority concluded that the courts cannot invalidate legislation on the basis of a UCP alone, since doing so would “afford the state no corresponding justificatory mechanism.”[xiv] Wading into seemingly new territory, the majority found that declarations of invalidity based solely on a UCP would deprive the legislature of its ability to justify Charter breaches under section 1 or invoke the notwithstanding clause under section 33, since these mechanisms apply to the rights and freedoms expressly set out in the Charter. The majority concluded its doctrinal analysis of UCPs by swiftly distinguishing decades of precedent. In doing so, they reiterated the primacy of the text when answering questions of constitutional interpretation, thus relegating UCPs to a status of mere “context and backdrop” within Canada’s constitutional framework.[xv]
The majority further rejected the policy-driven notion that municipalities’ increasing importance in public governance should warrant the circumscription of the province’s ‘absolute and unfettered legal power’ under subsection 92(8).[xvi] The majority then relied on the Federation of Canadian Municipalities’ (FCM) submissions to ground an originalist interpretation of subsection 92(8). FCM argued that a historical study of municipal governance in Canada reveals that municipal councils and elections, and therefore municipal democracy, existed at the time of Confederation such that the democratic principle always lived within subsection 92(8). That is the conclusion that flows by necessary implication from the historical context in which subsection 92(8) was adopted. The majority, however, adopted a rival originalist position. Agreeing that the importance of municipal government was known to the framers in 1867 and even debated during patriation in 1982, the majority concluded that “[t]he absence of municipalities in the constitutional text, is on the contrary, a deliberate omission.”[xvii]
Finally, although the majority found that Ontario’s disruption of an ongoing municipal election was constitutional, they exercised judicial restraint to avoid commenting on the apparent wisdom behind the impugned legislation. While avoiding such legislative judgements could be seen as a bare minimum for respecting the separation of powers, the majority nevertheless made this position known when it explicitly declared, in reference to the “full legal force” of UCPs being limited to interests within the judicial realm rather than to resolve non-justiciable political issues, that “courts do not supervise the legislature or the executive as to political process.”[xviii] By importing this ostensibly American judicial philosophy, the Court has yielded to the legislature in recognition of parliamentary supremacy and has constrained what Justice Scalia saw as illegitimate activism from an unelected judiciary. Indeed, the majority stated as much when it concluded that “[i]t is not for the Court to do by ‘interpretation’ what the framers of our Constitution chose not to do by enshrinement, or their successors by amendment.”[xix]
However, to the extent that today’s dissent may appeal to society’s collective intellectual curiosity tomorrow, Justice Abella’s opinion must not fall by the wayside.[xx] Her opinion, which referred to UCPs as our Constitution’s “most basic normative commitments”[xxi] to “assess state action for constitutional compliance,”[xxii] garnered three other judges’ support for being aligned with the Court’s past use of UCPs as a means to invalidate legislation.[xxiii] Justice Abella observed that the majority’s needless foreclosure on the possibility of using UCPs to invalidate legislation in the future was unprecedented and imprudent since the issue on appeal did not warrant such a sweeping conclusion.[xxiv]
The Court’s sharp disagreement over the proper role of UCPs within Canada’s constitutional framework portend an uncertain future for the adjudication of constitutional law disputes. Has the majority truly erected the pillars of conservative legal thought to overturn longstanding precedent and trigger a new era of constitutional interpretation?[xxv] Or are the dissenting judges attempting to deny the will of the legislature by growing the “living tree” far beyond its natural limits?
Either way, I note that the Court speaks with greater force and offers clearer guidance when it does so with one voice. To that end, the Court could have engaged in “dialogue” with the legislature to denounce Ontario’s disruption of Toronto’s municipal election as being inconsistent with the principle of democracy without invalidating the operative legislation. In doing so, the Court would have signaled its disapproval of the legislature’s chosen means to achieve its policy objective, while refraining from engaging in judicial overreach. As explained by constitutional scholar Yan Campagnolo, this approach acknowledges that legislation may be constitutionally valid, having not breached any specific provision of the Big-C Constitution, yet inconsistent with UCPs, which at the very least brings into question the statute’s legitimacy.[xxvi] For now though, I find the battle lines in this case to have been drawn clearly, leaving the existence of our constitutional principles not just unwritten, but uncertain in their future application.
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Disclaimer: The opinions expressed in this text belong to the author and do not reflect those of their positions nor of their affiliated institutions.
[i] Jordan Samaroo is in his final year of study in the combined Bachelor of Commerce and Juris Doctor Program at the University of Ottawa’s Faculty of Law. He is the former Editor-in-Chief of Administration for the Ottawa Law Review (Volume 52) and assisted counsel for the Federation of Canadian Municipalities, in his capacity as a law student, in its intervention before the Supreme Court of Canada. The author is grateful to Mathew Zaia and anonymous peer reviewers for their thoughtful comments on an earlier draft.
[iii] Noah Feldman, “Deep Bench: The Vision Thing” (17 October 2020), online (podcast): Deep Background with Noah Feldman by Pushkin Industries < https://www.pushkin.fm/episode/deep-bench-the-vision-thing/>.
[iv] Supra note ii at para 1.
[v] Noah Feldman, “The Battle Over Scalia’s Legacy”, Book Review of The Essential Scalia: On the Constitution, the Courts, and the Rule of Law by Antonin Scalia, ed by Jeffrey S Sutton and Edward Whelan, and with a foreword by Justice Elena Kagan, (17 December 2020) The New York Review 67 at 67 < https://www.nybooks.com/articles/2020/12/17/the-battle-over-scalias-legacy/>.
[vii] Canadian Charter of Rights and Freedoms, ss 2(b), 3, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[viii] 30 & 31 Vict, c 3, s 92(8), reprinted in RSC 1985, Appendix II, No 5.
[ix] Supra note ii at para 54 [emphasis in original].
[x] Ibid at para 48.
[xi] Ibid at para 55.
[xii] Ibid at para 56.
[xiii] Ibid at para 53.
[xiv] Ibid at para 60.
[xv] Ibid at para 50.
[xvi] Ibid at para 79.
[xvii] Ibid at para 81 [references omitted].
[xviii] Ibid at para 68.
[xix] Ibid at para 82.
[xx] Ruth Bader Ginsburg, My Own Words (New York: Simon & Schuster Paperbacks, 2016) at 282-83 (Chief Justice Hughes of the U.S. Supreme Court, in a book about the Court published in 1936, famously described the role of dissenting opinions, writing, “A dissent in a court of last resort is an appeal…to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed”).
[xxi] Supra note ii at para 168.
[xxii] Ibid at para 171.
[xxiii] See e.g. Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59.
[xxiv] Supra note ii at paras 170–71.
[xxv]Sean Fine, “Supreme Court upholds Ontario law slashing Toronto’s city council”, The Globe and Mail (2 October 2021), online: <www.theglobeandmail.com/canada/article-supreme-court-upholds-provincial-law-that-cut-toronto-city-council/> (“[l]egal observers characterized the at-times sharp words that went back and forth between the majority and minority as a U.S.-style debate over how closely judges should stick to the text of the Canadian Constitution.” Jason Madden, a lawyer representing Métis groups that intervened in the case stated that: “[t]he majority adopted an increased focus on the express text of the Constitution that is more like an American approach to these issues than what previous Supreme Court of Canada judgements have emphasized”).
[xxvi] Yan Campagnolo, “Cabinet Immunity in Canada: The Legal Black Hole” (2017) 63:2 McGill LJ 315 at 325–26, 373; Yan Campagnolo, Behind Closed Doors: The Law and Politics of Cabinet Secrecy (Vancouver: UBC Press, 2021) at 180, 220.