In Defence of the Canadian Supreme Court’s Majority – Responding to Arvind  Datar and Rahul Unnikrishnan

Recently, the Canadian Supreme Court delivered a significant verdict on the issue of whether unwritten principles of the Constitution can be used to strike down legislations [Toronto (City) v. Ontario (Attorney General), 2021 SCC 34]. While the minority ruled in the affirmative, the majority in a close 5:4 verdict held to the contrary.   

In a recent post, Senior Advocate Arvind Datar and Advocate Rahul Unnikrishanan have supported the dissenting judgment (authored by Abella J.). In this post, I shall defend the majority verdict and attempt to respond to Mr. Datar and Unnikrishnan. The post shall only discuss the issue of unwritten principles of the Constitution.

Before moving to my defence, a brief summary of the judgment and the key issue involved would be helpful. The Constitution of Canada much like India, is divided into a federal government at the Centre and several provincial governments responsible for the respective provinces. Section 92(8) of the Constitution Act, 1867 grants legislative authority over ‘municipal institutions in the province’ to the provinces.

In the year 2013, the City of Toronto conducted the Toronto Ward Boundary Review of its City Council’s existing 44 ward structure. It was recommended that the wards should be expanded to 47, which was accepted in 2016. On July 27, 2018, which was the last date for nominations, over 500 candidates had registered to run for the expanded 47 wards but on that very day the provincial government of Ontario announced that it would be introducing a legislation to reduce the size of the Toronto City Council to 25 wards. Subsequently, on 4 August 2018 the provincial government introduced the Better Local Government Act, 2018 bringing the 25 wards structure in effect. The nomination period was extended to September 14.

The constitutionality of these measures was challenged before the Ontario Superior Court of Justice. The Court struck down the measures on two grounds i.e., (a) it limited the municipal candidate’s right to freedom of expression under Section 2(b), since it was enacted during the election campaign; and (b) it limited municipal voter’s right to effective representation by increasing the ward population sizes (an effect of reduced ward numbers). The province appealed to the Court of Appeal for Ontario which ultimately ruled in favour the government. It interestingly also observed that reliance on unwritten principles does not confer upon the judiciary power to invalidate legislation which otherwise do not infringe the Charter. An appeal was filed before the Supreme Court which ultimately upheld the legislation.

  1. What the Majority and the Minority Held respectively:

The majority held that unwritten principles of the Constitution are extremely important and assist the Court in two ways. First, while interpreting constitutional provisions i.e., they aid the Court to arrive at a particular interpretation. The majority judgment gave the example of the Provincial Court Judges Reference Case wherein the Court used the principles of Rule of Law and Judicial Independence to aid its interpretation of Section 96 to 100 of the Constitution.

Second, unwritten principles can be used to develop doctrines that are not stated in the Written Constitution explicitly and can also be used to fill gaps or address questions where the Constitution is not silent. By this the Court meant, that unwritten principles could be used to interpret an existing provision of the Constitution to deal with a lacuna or ambiguity. The Court observed that instead of allowing unwritten principles to run amok, it uses them to aid the existing written provisions and adopt a purposive interpretation.

It observed,

53.  ‘The structure of our Constitution is identified by way of its actual provisions, recorded in its text. This is why our colleague can offer no example of legislation that would undermine the structure of the Constitution that cannot be addressed as we propose, which is via purposive textual interpretation. It is also why, once “constitutional structure” is properly understood, it becomes clear that, when our colleague invokes “constitutional structure”, she is in substance inviting judicial invalidation of legislation in a manner that is wholly untethered from that structure.’

The majority used the abstract nature of these unwritten principles to support its argument. It argued that given their abstract nature, these principles if allowed to invalidate legislations, will promote uncertainty. It observed,

More particularly, and as the Court affirmed in Quebec (Attorney General), the Constitution “is not ‘an empty vessel to be filled with whatever meaning we might wish from time to time’” (para. 9, quoting Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 394). Rather, constitutional interpretation “must first and foremost have reference to, and be constrained by, [its] text” (para. 9).”

Minority (led by Abella J.):

The minority opinion held that unwritten principles of the Constitution can be used to strike down legislations. It primarily held that these principles are standalone in themselves and are not to be used merely as aids to interpretation. It relied on several precedents delivered primarily by the Courts of Canada, United Kingdom (‘U.K.’) and few other jurisdictions. It observed,

165. The precedential Constitution of the United Kingdom is not a written document, but is comprised of unwritten norms, Acts of Parliament, Crown prerogative, conventions, custom of Parliament, and judicial decisions, among other sources.”

Mr. Datar and Unnikrishnan support this view and argue that it has important significance for India, given that a legislation can be struck down here on the ground of violating a fundamental right or other constitutional provisions. I believe that even the majority agrees with them in saying that so long as the legislation is being struck down for violating a provision in the Canadian Charter, the act is valid. The majority disagrees with the use of unwritten principles. The mention of India by the authors is interesting and I shall come to it soon.

Coming back to the minority opinion. First, in my opinion, the reliance on U.K. as a jurisdiction damages the minority’s case rather than supporting it (see paragraphs 165-166 of the judgment). Due to the principle of parliamentary sovereignty, the U.K. Supreme Court lacks the power to strike down a legislation enacted by the Parliament and therefore its precedents cannot be used to further an argument for using unwritten principles to strike down a legislation.

Second, the minority despite arguing that there are precedents supporting its argument, fails to point out any instance wherein a legislation has been struck down solely on the basis of flouting the Constitution’s unwritten principles. The minority cites the case of Provincial Judges Reference and Trial Lawyers Association of British Columbia (Attorney General), however in both these cases unwritten principles were relied only partially to strike down the legislation, a fact later admitted by the minority. It observed,

“174. In the Provincial Judges Reference, this Court relied, in part, on the unwritten constitutional principle of judicial independence to strike down legislative provisions in various provincial statutes.”

Third, the majority raised an interesting argument concerning the implication of Parliament’s power under Section 33 of the Canadian Charter of Rights and Freedoms, which the minority poorly responds to. Section 33 of the Charter, is a notwithstanding clause that allows the Parliament or a provincial legislature to declare that a legislation would operate/continue to be valid, and Section 2 or 5-7 of the Charter (which contain key fundamental rights)  will have no effect on it. The majority argued that by allowing the use of unwritten principles to strike down legislations, in effect the Courts would circumvent the legislative override available to the Parliament and the provincial legislature. This is a tenable argument; however, the minority opinion gives a one-line response to this by stating that the question is not directly before us.

2. In Defence of the Judgment-

In addition to the above, if one adopts the argument proposed by the minority, we might end up with a doctrine akin to the Basic Structure doctrine in India (‘BSD’). The doctrine states that there are certain essential features of the Constitution of India which cannot be curtailed or modified with by amending the Constitution. The minority proposes having a similar doctrine in Canada which can be applied to legislations passed by either the Parliament or the provincial legislature. I shall use the problems with the BSD to highlight the flaw in the minority judgment’s approach.

First is the problem of uncertainty surrounding these principles. The job of identifying these principles will ultimately fall on the Judges hearing the case, thereby opening them to subjective interpretation. Flowing from this is the danger of giving Judges a power that originally belongs to the people and the Parliament. Both India and Canada’s political framework vest the people with the constituent power to create a Constitution and the Parliament with the constituted power to amend that Constitution. The Canadian Constitution does not textually permit the Courts to solely use unwritten principles to strike down a law. By allowing the sole use of unwritten principles to strike down validly enacted legislations, we are letting the Courts equip themselves with powers that the Constitution did not envisage for them.

Further, since the Judges will themselves identify what these unwritten principles are and use them to strike down a law, they are exercising a constituted power and changing the Constitution. A version of this argument has been used to attack the Indian Supreme Court’s use of the BSD as the Court has regularly updated the list of basic features of the Constitution. This has been seen as an act of an unelected Judges assuming the role of elected representatives.  

I believe the majority judgment has rightly adopted a middle path. The judgment has proposed a purposive interpretation i.e., using unwritten principles of the Constitution to aid the existing substantive provisions of the Constitution and interpret them in light of their purpose. This I believe respects the principle of parliamentary sovereignty in law-making, legitimacy of elected legislatures and also wards of concerns emanating from a doctrine akin to the basic structure. The minority opinion views this interpretation as an adherence to textualism which is incorrect in my opinion. Textualism requires adherence to the textual meaning of a provision even if the result is absurd and by adopting a purposive interpretation, the majority does the exact opposite of that.

(PS – As a young lawyer, I have looked up to Mr. Datar immensely and have learned from his arguments in Court and lectures. This article is a humble attempt to respond to his arguments.)

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