Unwritten Constitutionalism in Canada: Where Do Things Stand?

“Unwritten Constitutionalism in Canada: Where Do Things Stand?” (2001) 35 Canadian Business Law Journal 113-122.

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Constitutional argument based on unwritten norms is much in vogue these days, in large part because of the decision of the Supreme Court of Canada in the Secession Reference. In that judgment, the Court departed in several important respects from the normal way in which constitutional cases in Canada are adjudicated. The Court stated that the Constitution consisted of both written and unwritten legal rules or principles. It also argued that those unwritten principles were fundamental or foundational, inasmuch as the text merely implemented them or actualized them, and that those principles could be used to fill gaps in the constitutional text through a process of amendment-like interpretation. The Secession Reference has spawned a cascade of constitutional cases across the country. This article surveys these cases and makes three points. First, it is easy to exaggerate both the volume and significance of this case-law. Second, unwritten constitutionalism is potentially very dangerous. Third, in the face of open-textured or ambiguous constitutional provisions in constitutional texts that require courts to make difficult choices, we can expect courts to interpret them openly and transparently in accordance with underlying political theories.