Joseph E. Magnet
Constitutional Law of Canada, 8th ed. (2001)
Part I -- Structure of Canadian Government
Chapter 1, Sources of Constitutional Law
(a)  Constitutional Theory, Constitutional
Principle, Constitutional Law

      Intellectual traditions everywhere overflow with ideas about how societies should organize their governance and states should be designed.  We may call these ideas constitutional theory. Intellectual life also contains an abundance of  ideas concerning how basic institutions of governance should work, and interrelate with each other.  We may call these ideas constitutional principle. And legal systems everywhere include enforceable rules and procedures about how organized political power can, cannot or must be used.  We may call these rules constitutional law.

      Constitutional Theory, Constitutional Principle

      Constitutional theory, the pure philosophy of how to organize political power, is a rich intellectual heritage. The classical texts imagine ideal societies and their ends, or describe the most efficacious organization of different societies. The greatest political philosophers Hume, Locke, Hobbes, Mill, Acton, to cull some of the most illustrious from the British tradition are omnipresent in the birth of British-inspired constitutions, inhabit their deepest existential moments and gently infuse their wisdom into the daily operation, interpretation and exfoliation of national political life (see, for example, the use of Locke's Second Treatise of the Civil Government by the United States Supreme Court in Research Note, Administrative Delegation, infra.). Corwin, American Constitutional History (1964) put it this way:

      These raw materials inspire the living constitutions that are operated in different national circumstances and deepen the moral significance of particular constitutional orders. Constitutional theory explains why particular institutions and procedures have been chosen; and why they are valuable.

      An example may help to clarify: freedom of expression is important because the Canadian Charter of Rights and Freedoms makes it a higher juridical norm than simple legislative rules, but why does the Charter endow freedom of expression with this important significance?  Constitutional theory explains why societies value freedom of expression. Philosophers, political theorists, and constitutional lawyers have developed these values over time. The constitutional theory of freedom of expression continues to inform the meaning of the concept when freedom of expression becomes relevant to a dispute before a constitutional arbiter (see e.g. R.W.D.S.U. v. Dolphin Delivery, [1986] 2 S.C.R. 573, Edmonton Journal v. Alberta (A.G.), [1989] 2 S.C.R. 1326 per Cory J.).

      Constitutions disperse political power to institutions of the state endowed with differentiated mandates. Well-governed states, at the higher levels of state policy, must harmonize the exercise of power by multi-motivated state organs.  How harmonization should occur is problematical, if it is not to lead to undue concentration of power or despotic structures. Few constitutional texts provide guidance.

      During periods of existential moments in national life we can see harmonization occur, and in some cases witness it being explained by constitutional actors.  The most frequent mechanism of harmonization is elaboration of and adherence to constitutional principle.

      An example may again serve to clarify.  The Charter of Rights invests Canadian courts with authority to consider the relevance of equality guarantees to benefit schemes designed by the legislature.  The legislature may itself have studied this problem, and designed its scheme to further equality rights specifically.  How should the court interrelate with the legislature's work?  Deferentially?  Suspiciously? Not at all?  Is it relevant that the legislature may have devised its scheme to respond to previous rulings of the Court?  And how should the legislature interrelate with the court's work when the two institutions differ about the relevance of equality guarantees?  Deferentially?  Suspiciously? Creatively?  By quick resort to constitutional overrides where these are available, as in Canada?

      These are difficult questions.  Important answers are to be found in constitutional principles. The principle that the court and legislature are engaged in a constitutional dialogue is relevant to the benefit scheme example.  The principle of constitutional dialogue imbues each institution with a sense of respect for the work of the other on the understanding that both institutions, fulfilling their separate constitutional mandates, are engaged in a process of imbuing reason and justice into the marketplace of public expectations (see Vriend v. Alberta and R. v. Mills, infra.).

      A second example: In the early 1980s, the Government of Canada proposed extensive renovation of Canada's constitution.

The process, which Canada led, was contentious.  Some, using hyperbole, conceived the process as analogous to a coup d'état. In the Patriation Reference, the Supreme Court reached deep into the sources of constitutional law to explain that the Constitution of Canada includes the global system of rules and principles which govern the exercise of constitutional authority in the whole and in every part of the Canadian state.  By resort to constitutional principle the Court was able to elaborate how the process led by the Government of Canada was occurring within Canada's constitutional framework, and was valid at constitutional law (although departing from 'constitutional conventions'). When, a generation later, the Legislature of Quebec proceeded on a unilateral march towards secession from the Canadian Federation, without involving any other constitutional institutions, the Supreme Court again delved deep into the sources of constitutional law. In the Secession Reference, the Court explained that the supporting principles and rules [...] are a necessary part of our Constitution because problems or situations may arise which are not expressly dealt with by the text of the Constitution. The Court continued:

      In the earlier Reference Re Provincial Judges, [1997] 3 S.C.R. 3 the Court explained how constitutional principles have important legal effects in two ways: by providing a key to construing the express provisions of the Constitution Acts; and also by filling in gaps in the written text (para. 95). The Court then explained how the unwritten constitutional principle of judicial independence could supplement the judicature provisions (s. 96-101) of the Constitution Act, 1867 and s. 11(d) of the Charter of Rights by providing guarantees of judicial independence for the provincial judiciary in the exercise of their civil jurisdiction.

      The Court confirmed this approach in the Secession Reference. Underlying constitutional principles, the Court stated, assist in the interpretation of the text.  The Court extended this point to make constitutional principles relevant to the delineation of spheres of jurisdiction, the scope of rights and obligations and the role of our political institutions; (para 52).  Underlying constitutional principles also fill in gaps in the written constitutional text (para 53).  This is why constitutional principles give rise to substantive legal obligations ... which constitute substantive limitations upon government action ... and are binding upon both courts and governments; (para 54). The court then identified four fundamental and organizing principles of the Constitution relevant to the question of secession -- federalism, democracy, constitutionalism and the rule of law, and respect for minorities. The Court noted that the enumeration was not exhaustive.  By means of these principles, the Court was able to show how unilateral secession by the Legislature of Quebec, without the involvement of other constitutional institutions,
was unconstitutional.

      Constitutional theory, constitutional principle, constitutional law: the progressive hardening of one into the other takes place in the daily work of a nation's political institutions, especially under conditions of stress. Constitutional theory is the collection of grand abstract ideas about how people should be governed, irrespective of local history or national particularity.  Constitutional principle is the adaptation of these grand ideas to the individual circumstances of particular polities. The examples discussed above shed light on the process by which, as constitutional actors operate the political institutions of society, constitutional theory solidifies and takes on a national character. As so formed, constitutional principle secretes itself into the gaps that separate constitutional institutions, reveals the purposes of those institutions and indicates how their diverse mandates may be harmonized.

      Constitutional Law

      Constitutional law is the law that establishes the State and creates its basic institutions.  Constitutional law endows the State's institutions with political power, specifies the procedures through which political power may be exercised and provides for limits to official uses of power.

      In modern times most constitutions are written, although this is not invariably so, and some major constitutions -- that of the United Kingdom, for example -- remain unwritten. Canada's Constitution is somewhat unique.  It is partly written, although the writings are in several rather than one statute; and partly unwritten, consisting of the traditions to which political actors are expected to conform in exercising the power invested in them by the written constitution.

      The written part of Canada's Constitution consists of statutes of the Imperial (that is, the United Kingdom) Parliament, the Parliament of Canada and the legislatures of the Canadian Provinces.  The major constitutional document is the British North America Act, 1867, later renamed the Constitution Act, 1867.  This statute was first enacted by the United Kingdom Parliament in 1867; it brought the Dominion of Canada into being as a federal state.  (A collection of Canada's constitutional statutes is available on the web at http://www.constitutional-law.net/docs.html and http://www.solon.org/Constitutions/Canada/English/index.html.)

      Written constitutions, unlike most ordinary statutes, tend to be phrased in broad general language in many areas. Canada's written Constitution provides for institutions, like the Canadian House of Commons or Canada's Superior Courts, but leaves them incompletely manufactured or subject to renovation.  The written Constitution foresees that the institutions will be completed and from time to time renovated by statutes of Parliament or the legislatures.  Such statutes are called 'organic' enactments -- statutes whose object is to fill in the detail of constitutional institutions left somewhat vague in the formal Constitutional text.

      The Constitution Act, 1867 also expresses the federal distribution of legislative powers in quite general terms. This creates the possibility for much flexibility in interpretation.  Over time, it is the work of the Courts in interpreting the written Constitution that has given more precise meaning to the language of the Constitution Act, 1867. It has been remarked that each decision of the Supreme Court of Canada which interprets the Constitution Act, 1867, as far as it goes, is tantamount to an amendment of the Constitution.

This is not wholly untrue; as a metaphor, the thought does convey colorfully the importance of judicial decision for delimiting the powers of the organs of governance ordained by the Constitution.  Without an understanding of the judicial decisions elaborating the written constitution, the written text would seem very strange as compared to the actual distribution of power observed by governments in practice.

      There are other parts of the Constitution of Canada that derive from the work of the courts. For example, the law of Parliamentary privilege (the implied powers necessary for operating the Parliamentary institution) or the prerogatives of the Crown (the powers inherent in the Crown and so far unextinguished) are to be found in judicial decisions. Some of these areas result from judicial glosses on written constitutional texts (the law of Parliamentary privilege, for example, is referred to in s. 18 of the Constitution Act, 1867).  Other constitutional areas, as with the law of Crown prerogative, may result from court decisions only, without any basis in the written constitutional text.

      Constitutional Convention

      As stated, parts of Canada's Constitution are unwritten. In an important sense these are the most important parts.  The written Constitution provides the formal establishment of the institutions of public power.  Over time, daily political life develops expectations as to how the institutions of governance should  be operated.  Constitutional writers call these expectations the 'usages, practices, customs and conventions' of the constitution.  The institutions of the Prime Minister and Leader of the Opposition, for example, indeed the entire system of responsible government, are nowhere mentioned in the written constitution. Yet, without understanding the usages, practices and conventions established in these institutions, Canada's written Constitution would make no sense. A person reading the written Constitution would think that Judges are appointed by the Governor General.  A person familiar with the constitutional conventions relevant to judicial selection would understand that the Minister of Justice and Prime Minister follow a procedure which results in a name being forwarded to the Governor General for her rubber stamp. If the Governor General were to ignore this process and appoint a person on her own, her act would be 'unconstitutional' in the conventional sense.  The consequences of such 'unconstitutional' action are discussed in two cases that follow (Patriation Reference and Osborne v. Canada). These cases also discuss how constitutional conventions may be identified and their overall significance.

      Constitutional Amendment

      Oddly, the British North America Act, 1867 provided no formula for its general amendment.  The record of conference proceedings leading to enactment does not disclose the reason why, but the result is that as the British North America Act, 1867 was a statute of the United Kingdom Parliament, constitutional amendment in Canada took place through enactments of the United Kingdom Parliament.  Some of these enactments are detailed as a schedule to the Constitution Act, 1982 (the schedule also includes certain 'organic' and other enactments of the Canadian Parliament).  Section 52(2) of the Constitution Act, 1982 states that the Constitution of Canada 'includes' the Acts listed in the Schedule.  The use of the word 'includes' signifies that other Acts also form part of the Constitution of Canada.

      British responsibility for constitutional amendment in Canada continued until 1982, when the Canada Act terminated British involvement, and set out in Part V of the Constitution Act, 1982 a domestic constitutional amending formula for use by the Canadian authorities.  Since that time, the Canadian authorities have used the Part V amending formula on several occasions to modify the Constitution of Canada.  The result is that until 1982 Imperial statutes continued to be added  to the Constitution of Canada.  After 1982, Canada's Constitution has only been modified pursuant to the amending formula at Part V of the Constitution Act, 1982.

      Summary

      As we have observed, written constitutions are typically very sketchy as compared with the detail found in taxing statutes or technical regulatory regimes.  Constitutional language overflows with broad concepts like 'freedom of expression' or incompletely manufactured institutional relationships such as those between the judicial and legislative powers.  For that reason, the work of the courts in the taxation and regulatory areas tends to be more or less straight forward rule application.  By contrast, the work of the courts in the constitutional area tends to be more rule creation and rule definition, and therefore correspondingly more difficult.  The broad language and incomplete manufacture which characterizes constitutions explain why constitutional theory and constitutional principle remain crucially important guides to the judiciary.  The broad language and incomplete manufacture also explains why the elaboration of constitutional theory and constitutional principle is such a lively activity for modern legal writers.