The Supreme Court and “unwritten principles”
by Gareth Morley
We all know when Canada got its original constitution.
On July 1, 1867, the British North America Act (now called the Constitution Act, 1867) united the colonies of Nova Scotia, New Brunswick and Canada (Ontario and Quebec) into a federal country. Canada’s First Constitution still sets out the form of our executive, legislative and
judicial branches of government. It divides legal powers between the provinces and Ottawa. Every year, we celebrate its anniversary with a long summer weekend.
And we all know that on April 2, 1982, Canada got a new supplementary constitution. The Constitution Act, 1982 sets out a written Charter of Rights, a commitment to regional equalization, guarantees for Aboriginal people and a made-in-Canada amending formula. There is no long weekend, but commemorations of the Second Constitution are common enough, especially in the legal and political professions.
But unless you are a specialized observer of constitutional law, you probably don’t know about Canada’s Third Constitution. Its tenth anniversary, next September, will pass without fanfare. This revolution was not the subject of public debate or political negotiation. No document – other than obscure passages in law reports – embodies it. But it may in the end have as big an effect on the country as the other two.
The First Constitution basically left lawmaking up to Parliament in Ottawa and the legislatures in the provincial capitals. The courts could strike down a law primarily if the wrong level of government enacted it. If the federal Parliament passed a law in an area that should be dealt with only by provincial legislatures, or vice versa, the courts could act. But subject to this principle, and with some minor exceptions set out in the written text, the elected legislatures were sovereign within their spheres.
The Second Constitution gives courts more latitude. It allows them to strike down laws that in their view conflict with the freedoms and rights set out in the text and do not constitute “reasonable limits prescribed by law” on those rights and freedoms. However, with some exceptions, the 1982 Constitution gives legislatures the power to immunize laws from judicial scrutiny by declaring that they operate “notwithstanding” the Charter of Rights.