What the Canadian Supreme Court held on Unwritten Constitutional Principles

On October 1, 2021, the Supreme Court of Canada delivered a historic verdict on the permissibility of striking down legislation on the basis of unwritten constitutional principles. In City of Toronto v. Attorney General of Ontario, by a majority of 5:4, the Canadian Supreme Court held that unwritten constitutional principles cannot be used as the basis for invalidating legislation.

In a powerful dissent, the minority held, and rightly so, that unwritten constitutional principles such as judicial independence and the rule of law can indeed be the basis for invalidating legislation. The facts of the case are indeed interesting.

The City of Toronto was divided into 25 wards. A Boundary Review Committee, after four years of deliberations, concluded that the then existing 25 wards did not achieve effective representation, and recommended 47 wards. On this basis, elections were announced for 47 wards and the campaigning had started. Just 70 days before the scheduled election date, a legislation was enacted reducing the wards from 47 to 25. This created an enormous disruption in the election process as nominations had been filed for all the 47 wards and amounts had been spent on campaigning.

This legislation was challenged and a single judge held that the impugned legislation was violative of the candidate’s right of freedom of expression and the voters’ right to effective representation. The Court of Appeals reversed this view. The majority view at the first appeal stage observed that unwritten constitutional principles did not confer upon the judiciary the powers to invalidate any legislation unless such enactment had infringed specific provisions of the Canadian Charter of Rights and Freedoms. This view was upheld by a nine-judge bench of the Supreme Court by a slender majority.

It is submitted that the minority view is far better reasoned and merits acceptance. This ruling has important significance for India, as the validity of a legislation can usually be struck down on the ground that it violates a fundamental right or any other constitutional restriction or if it is beyond the legislative competence of the particular legislature.

The minority judgment has extensively referred to cases from several jurisdictions including a reference to Kesavananda Bharati and the basic structure doctrine. The minority noted that unwritten constitutional principles had been held to be the lifeline of the Constitution and represented the vital unstated assumptions upon which the text was based. These are not merely the context or backdrop of the text; on the contrary, they are the Constitution’s most basic normative commitments from which the specific textual provisions are derived.

Thus, the minority held that “rule of law” is a fundamental postulate of their constitutional structure. Similarly, judicial independence is another unwritten principle which was a constitutional imperative in view of the central place that courts held within the Canadian system of government. It noted that the principles of judicial independence had indeed been used to strike down legislative provisions that concerned the deduction of salary of provincial court judges or the right of an accused to independent tribunals.

Interestingly, reference was made to earlier decisions which traced judicial independence to the Preamble of the Constitution Act, 1867. It observed that the Preamble was the “grand entrance to the castle of the Constitution” and was the true source of the Constitution’s commitment to the foundational principles of judicial independence. Similarly, as part of the unwritten constitutional principle of the rule of law was the principle of access to justice. The minority judgment is truly remarkable and merits careful consideration.

Finally, the minority refers to an essay by Prof Mark Walters, who pointed out that unwritten principles were not merely to fill up gaps in the express terms of the constitutional scheme. These principles were the underlying foundation of the Constitution and their importance was beautifully summarised thus:

“The constitutional text is not just supplemented by unwritten principles; it rests upon them.”