The Supreme Court and Unwritten Constitutional Principles

1
The Supreme Court and Unwritten Constitutional
Principles

• Honourable Beverley McLachlinChief Justice of
  the Supreme Court of Canada

2
McLachlins Questions

• 1. what are unwritten constitutional principles?
  What gives them legitimacy?
• 2. How and by whom are these principles to be
  discovered?
• If by judges, why not Parliament?

3

• First, Whats Going On?
• the idea that there exist fundamental norms of
  justice so basic that they form part of the legal
  structure of governance . . .
• . . .and must be upheld by the courts, whether or
  not they find expression in constitutional texts.
  

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• Whats at stake?
• judges have the duty to insist that the
  legislative and executive branches of government
  conform to certain established and fundamental
  norms, even in times of trouble.
• Constitutional an overriding principle that
  can invalidate laws and executive acts.

5

• Lord Cookes view (sympathetic to McLachlins)
• He argued that an independent judiciary is the
  safeguard of parliamentary democracy, and urged
  courts not to be afraid to assume their role in
  protecting certain fundamental principles as
  essential to the rule of law and the expression
  of democratic will, even if these deep rights
  were not in written form.

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• One may have to accept that working out truly
  fundamental rights and duties is ultimately an
  inescapable judicial responsibility. (Lord
  Cooke)
• Compare this with Aristotle, Locke, Declaration
  of Independence and Canadian Founding Debates.

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• So what are unwritten constitutional principles?
• First, . . .unwritten norms. . . essential to a
  nations history, identity, values and legal
  system.
• Second, constitutions provide the normative
  framework for governance. . .theres no reason to
  believe that they cannot embrace both written and
  unwritten norms.
• Third - the idea of unwritten constitutional
  principles is not new (E.g., medieval natural
  law)

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• The new natural law that McLachlin looks to is
  somehow different
• the identification of these unwritten
  principles seems to presuppose the existence of
  some kind of natural order. Unlike them, however,
  it does not fasten on theology as the source of
  the unwritten principles that transcend the
  exercise of state power. It is derived from the
  history, values and culture of the nation, viewed
  in its constitutional context.
• (contrast with recent R. v. Labaye (2005) Supreme
  Court decision, written by McLachlin
  Historically, the legal concepts of indecency
  and obscenity, as applied to conduct and
  publications, respectively,  have been inspired 
  and informed by the moral views of the
  community.  But over time, courts increasingly
  came to recognize that morals and taste were
  subjective, arbitrary and unworkable in the
  criminal context, and that a diverse society
  could function only with a generous measure of
  tolerance for minority mores and practices.
  Labaye decision

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• The. . . Court adopted a test based on the
  community standard of tolerance.  On its face,
  the test was objective, requiring the trier of
  fact to determine what the community would
  tolerate.  Yet once again, in practice it proved
  difficult to apply in an objective fashion.  How
  does one determine what the community would
  tolerate were it aware of the conduct or
  material?  In a diverse, pluralistic society
  whose members hold divergent views, who is the
  community?  And how can one objectively
  determine what the community, if one could define
  it, would tolerate. . .?  In practice, once
  again, the test tended to function as a proxy for
  the personal views of expert witnesses, judges
  and jurors.  In the end, the question often came
  down to what they, as individual members of the
  community, would tolerate. . . .The result was
  that despite its superficial objectivity, the
  community standard of tolerance test remained
  highly subjective in application.
• Justice McLachlin writing for the majority in the
  Labaye case.

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• The majority . . .departs from the case law of
  this Court propose a new approach to indecency
  that is,. . .neither desirable nor workable and
  constitutes an unwarranted break with the most
  important principles of our past decisions
  regarding indecency.  It replaces the community
  standard of tolerance with a test that treats
  harm as the basis of indecency rather than as a
  criterion for determining the communitys level
  of tolerance.. . .the new principle cannot take
  the place of a contextual analysis of the
  Canadian community standard of tolerance without
  completely transforming the concept of indecency
  and rendering it meaningless.
• Dissenting judges in R. v. Labaye, 2005).

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• Some of the unwritten Principles
• Rule of law
• Human rights
• Good governance
• Where is the source for some of this thinking?
• McLachlin cites commonwealth Principles and
  U.N. Declaration of Rights. But did she not say
  that the unwritten principles were supposed to
  come from the democratic nation itself (p.2)?
• Or does it come from democratic theory e.g.
  John Stuart Mill
• But then, why not cite why not Aristotle, for
  that matter or John Locke?

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John Lockehow his theory might contradict
McLachlin

• The legislative cannot transfer the power of
  making laws to any other hands for it being but
  a delegated power from the people, they who have
  it cannot pass it over to others (sec. 141)
• And when the people have said, We will submit to
  rules, and be governed by laws made by such men,
  and in such forms, no body else can say other men
  shall make laws for them nor can the people be
  bound by any laws, but such as are enacted by
  those whom they have chosen, and authorized to
  make laws for them.

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Also contrast McLachlin with the Federalist Papers

• Publius Federalist 49
• The three branches of government being
  perfectly coordinate by the terms of their
  commission, neither of them, it is evident, can
  pretend to an exclusive or superior right of
  settling the boundaries between their respective
  powers.
• Or Publius, Federalist 47
• quoting Montesquieu If the power of judging
  were joined with the legislative power, the
  life and liberty of the subject would be exposed
  to arbitrary control, for the judge would then be
  the legislator (p.271).

• McLachlin
• judges have the duty to insist that the
  legislative and executive branches of government
  conform to certain established and fundamental
  norms, even in times of trouble.
• Judges who enforce unjust laws laws that run
  counter to fundamental assumptions about the just
  society lose their legitimacy.

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A False dichotomy?

• McLachlins false dichotomy
• Either accept Parliamentary supremacy (legal
  positivism)
• Or accept new natural law, and human rights
  (which entails judicial supremacy)
• In this sense, Parliament would make rules but
  they would not necessarily be laws unless the
  Court could show the fundamental norm beneath the
  rule that makes it a law, something we should
  obey.
• Is this not to turn the Court into the law maker?

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• McLachlin addresses this
• The role of judges in a democracy is to interpret
  and apply the law.
• The law involves rules of different orders. The
  highest is the order of fundamental
  constitutional principles.
• These are the rules that guide all other
  law-making and the exercise of executive power by
  the state (notice she excludes the court from
  the formulation implication, the constitution
  does not guide or limit the court).
• judges must look to the written constitution for
  the values that capture the ethos of the nation
  yet she also said judges may be called upon to
  find new norms. They are not bound by the
  written constitution. . .they can look abroad for
  these norms.
• Yet It is not making the law, but interpreting,
  reconciling and applying the law, thus fulfilling
  the judges role as guarantor of the
  Constitution.
• Objection if the law is unwritten we rely on
  them to tell us that this or that particular law
  exists. How can we know that they are not making
  up the law merely to fit the conclusions they
  want to establish? If Parliament tried to reign
  in the court because it was overstepping its
  legitimate authority, would the court rule that
  action as unconstitutional a violation of
  judicial independence, and out of bounds for
  parliament? So who protects us against the court?

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• McLachlin takes it as established that the Court
  is the sole guarantor of the Constitution.
• If it were true, this would be another one of
  those unwritten constitutional principles, a
  fundamental norm. But this is precisely what is
  not agreed upon and has not been established.

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• Part of the question is whether judges should be
  doing justice or simply interpreting the law.
  She is worried that the latter would lead to the
  application of unjust laws, and would then be a
  violation of the Court.
• But isnt doing justice what the whole
  institution of government, with all its branches
  is supposed to do? Not just the Court?

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• Conclusion
• Assumptions of her argument
• Fundamental unwritten norms are/can be more
  authoritative than written laws and written
  constitutions
• Judges must interpret the law as written, but
  they have a higher obligation to do justice, and
  should override any laws that to them appear
  unjust
• Judges alone have the power to declare what the
  norm is by looking to such sources as past usage
  and customs, history, values affirmed (but only
  implicitly) by constitutional texts, principles
  of international law endorsed by the nation,
  and/or the ethos of a people, or nature as a
  standard, or the essence of the democratic will.
  what if these sources reveal contradictory
  answers? Who decides then?
• When the judges declare what the norm is
  (sometime it is a new norm p.8), the other
  branches of government must conform.

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• Other government branches derive their power from
  the Constitution
• Court derives its power from a fundamental,
  unwritten authority to declare, with finality,
  what is or is not just.
• The court is to determine the precepts of the new
  natural law
• The Court determines what the Constitution is.
  The Court can and should unilaterally determine
  what is and is not essential to a nations
  history, identity, values and legal system (2).
  It will tell the people what the people really
  want (not just what they think they want).
• It is not bound by the written constitution, nor
  to laws passed in parliament. Its guided by
  judicial conscience.

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• If, then, the rule of a number of persons who
  are all good men is to be regarded as
  aristocracy,. . .aristocracy would be more choice
  worthy for cities than kingship. . .provided it
  is possible to find a number of persons who are
  similarly good and virtuous.
• Aristotle, Politics 1286b 4-8

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• If the Constitution is deficientis
  unclearshould it be amended instead of simply
  reinterpreted by 5 unelected individuals
  (McLachlin doesnt say the Courts judgment must
  be unanimous, so a 5/4 decision could suffice).
• Conclusion Canada should be ruled by 5 good
  men (and women).