Law and Public Policy

D02(a) - Constitutional Principles and Practice

Date: Jun 3 | Time: 10:15am to 11:45am | Location:

Chair/Président/Présidente : Emma Gill-Anderson (University of Toronto)

Discussant/Commentateur/Commentatrice : Andrew McDougall (University of Toronto)

Who's Afraid of Constitutional Tradition?: Neil Montgomery (University of Victoria)
Abstract: Originalism is often written of as if it was the bête noire of constitutional theory in Canada. The Supreme Court is said to have ensured that living constitutionalism, with its affinity for constitutional development and innovation and its model of the constitution as itself a “living tree,” would be synonymous with constitutional interpretation in the Charter era. Outliers from the living constitutionalist consensus, such as the Court’s approach to Aboriginal rights as grounded in the Van der Peet test, have been attacked as inconsistent with the culture of the “living tree” and Charter values. In the process, the role that constitutional tradition plays in the interpretation of rights has been damned by association with orignalism’s search for original meaning. This paper argues that tradition has played a larger role in constitutional interpretation in Canada than has been recognized and that conflating it with original meaning is a mistake. Constitutional tradition has not only informed the constitutional culture of Aboriginal rights, but has helped constitute a traditionalist theory of constitutional interpretation, according to which practices of long duration have justificatory force in and of themselves, that is in contradistinction to originalism. Through a critical analysis of the doctrinal window of “time immemorial,” this paper describes how traditionalism functions, as a culture and as a method, in Supreme Court jurisprudence. Tracking “time immemorial” demonstrates the doctrinal coherence between the Court’s Aboriginal and Charter rights jurisprudence, leading to a normative defense of Aboriginal rights in their current construction.

The Desuetude of the Federal Notwithstanding Clause: An Empirical Investigation: Charlie Buck (University of Toronto), Andrew McDougall (University of Toronto)
Abstract: Section 33 of the Canadian Charter of Rights and Freedoms controversially allows Parliament or a provincial legislature to enact laws “notwithstanding” the fundamental freedoms, legal rights, and equality rights contained within it. Although increasingly invoked provincially, section 33 has never been used federally in its over 40-year history. Is section 33 still conventionally usable at the federal level after such a long period of nonuse? It may be entering a state of constitutional desuetude—a loss of legitimacy that occurs through a process of long-standing, conscientious nonuse and repudiation by political actors. This process is precisely what unfolded in the case of the constitutional powers of reservation and disallowance. I use process tracing—a methodology increasingly used in the social sciences to uncover causal mechanisms—to probe the observable implications of this claim, drawing from a suite of qualitative and quantitative evidence. Analyzing Hansard, public opinion polls, leadership debates, autobiographies, Supreme Court decisions, and the secondary law and politics literature, I find that section 33 is not constrained by desuetude federally. Its national use, therefore, is conventionally legitimate. This suggests future attempts to employ the notwithstanding clause, such as Conservative leader Pierre Poilievre’s pledge to do so in the area of criminal sentencing are neither surprising nor empty threats. At a theoretical level, this conclusion underscores the enduring significance of the notwithstanding clause to the Canadian constitutional imagination.

Indigenous Peoples’ Inherent Right to Self-Government, Legislative Devolution, and Informal Constitutional Change: An Analysis of Recent Supreme Court Decisions: Emmett Macfarlane (University of Waterloo), Minh Do (University of Guelph)
Abstract: Major formal amendments to the Constitution of Canada are widely perceived as virtually impossible in light of the amending formula’s requirements and the broader political culture around ‘opening the constitution’. In the context of Indigenous-state relations, the colonial constitution’s assertion of the federal level’s jurisdictional control over “Indians and Lands reserved for Indians” under s. 91(24) especially frustrates Indigenous nations’ ability to actualize self-determination. However, recent Supreme Court of Canada (SCC) decisions, like the minority opinions expressed in Dickson v Vuntut Gwitchin First Nation (2024) and the unanimous decision in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, may signal the Court’s acceptance of new informal paths to constitutional change that could support Indigenous people’s inherent right to self-government. We analyze these two decisions to identify the Court’s interpretation of s. 91(24) and the potential trade-offs of devolving federal power through legislation to recognize Indigenous self-government. We argue that sustained legislative action to open jurisdictional space for Indigenous governments through s. 91(24) can meet the goals of UNDRIP and represents a more democratic, and potentially more efficient, form of constitutional amendment than judicial interpretation of s. 91(24) or section 35’s Aboriginal and treaty rights. Yet despite the Court’s support, devolving powers through s. 91(24) without additional legislation to recognize Indigenous nations’ inherent right to self-government more broadly may stifle the potential of “legislative reconciliation” (Metallic 2023): legislative devolution may reify a hierarchical relationship between the federal and Indigenous orders of government and advance only piecemeal instances of Indigenous self-government. This paper will contribute to existing studies on informal constitutional amendment (Macfarlane 2016) and the implications of governments interpreting and asserting rights apart from the courts (Baker 2010).

Are the Supreme Court's use of Unwritten Constitutional Principles Democratic? And Does it Matter?: Mark Harding (University of Guelph)
Abstract: In a 2003 article, Rainer Knopff posed the questions: “How democratic is the Charter? And does it matter?” Knopff answered these questions “not very” and “not really” because the more significant arguments about the Charter lay elsewhere. This paper poses a similar set of questions: How democratic is the Supreme Court’s use of unwritten principles? And does it matter? I answer “not very” for the former but “it does matter” for the latter. In doing so, this paper develops a normative critique of the democratic legitimacy of the judicial use of unwritten constitutional principles. Canada, as a constitutional democracy, requires both courts and legislatures to participate in articulating the meaning of the constitution and the contours of rights-based conflicts. However, the judiciary’s use of unwritten constitutional principles creates tensions between the elected and non-elected branches of government. This paper addresses this tension in three ways. First, this paper explores the democratic implications of using unwritten constitutional principles by considering instances where institutional reforms initiated by a government were part and parcel of what the Court was adjudicating (Senate Reference 2014; City of Toronto 2021). Second, it considers the difficulty of engaging in a legislative response following the use of unwritten constitutional principles. Finally, this paper argues that the Court’s use of unwritten principles has been less controversial when invoked descriptively and will continue to strain democratic legitimacy when used to create new constitutional obligations.