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What Can We Learn from Canada About Judicial Use of Unwritten Principles?

An interesting 2021 ruling from the Supreme Court of Canada is very relevant to the conversation in Israel about judicial reform: What is the relation between “the language of the constitution” and the “spirit of the constitution”, and is the Court authorized to strike down laws according to unwritten constitutional principles?

One Line Answer:

The Supreme Court of Canada ruled that the Court identifies the “basic structure” of the constitution by its language and not by amorphous, unwritten principles. Relying on unwritten principles for judicial review of legislation undermines the very idea of a constitution.

According to the Canadian constitution drafted in 1867, the authority to design local government institutions was granted to the regional government. During the 2018 municipal elections for Toronto, (the biggest city in Canada), the regional government of Ontario passed a law reducing the number of representatives for the Toronto municipality from 47 to 25.

The Toronto Municipality petitioned the Court, claiming that the law violated the constitution’s provisions ensuring freedom of speech, freedom of association and the principle of equality. The municipality did not base their claims solely on the constitution’s written provisions, but on the constitution’s unwritten principles as well: democracy and the rule of law. The case moved through the courts till it reached the Supreme Court of Canada.  

The Canadian constitution, according to the Supreme Court of Canada, is comprised of both written and unwritten norms. The latter assist the Court in two ways. First, unwritten principles can serve as an interpretive tool, clarifying legislation’s purpose or the content of rights the laws enumerate. Secondly, these principles can fill the gap of a lacuna.  

However, the Court also explicitly stated that unwritten principles cannot serve as an independent basis for repealing laws – due to their highly abstract nature; because they are not clearly articulated; and since they haven’t gone through parliamentary committee. There is no defined content for the term “democracy” for instance. The Supreme Court of Canada determined that vesting the Court with the authority to interpret abstract principles undermines the will of the people as expressed by the ballot box and the legislative process. Likewise, the Canadian constitution allows for Parliament to overrule the repeal of laws that contradict specific rights enumerated in the constitution; Parliament cannot, however, overcome a court ruling based on an unwritten principle.

The Supreme Court of Canada added that “such attempts [to strike down legislation based on unwritten constitutional principles] trespass into legislative authority to amend the Constitution, thereby raising fundamental concerns about the legitimacy of judicial review and distorting the separation of powers”.

Finally, as opposed to the written language of the constitution, “which promotes legal certainty and predictability in the exercise of judicial review, the nebulous nature of unwritten principles makes them susceptible to be interpreted so as to render many of our written constitutional rights redundant and, in doing so, undermine the delimitation of those rights chosen by our constitutional framers.”

For all of the above, the Supreme Court of Canada ruled that legislation could not be repealed on the grounds of unwritten principles.

In Israel, the use of unwritten foundational constitutional principles regarding striking down laws and basic laws has recently been widely discussed. The Supreme Court in Israel would do well to consider the Supreme Court of Canada’s reasoning and excercise caution in such use.  

By: Adv. Avraham Russel Shalev

Further Reading:

Toronto (City) v. Ontario (Attorney General), 2021 SCC

Published originally in the KPF news-sheet, “One Line Answers” (B’Mishpat Echad)

https://scc-csc.lexum.com/…/scc-csc/en/item/19011/index.do

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  • עו"ד אברהם שלו

    בעל תואר ראשון במדעי המדינה ולימודי מזרח התיכון מאוניברסיטת מקגיל בקנדה, בעל תואר ראשון במשפטים ותואר שני בלימודי מזרח תיכון מאוניברסיטת בר-אילן. חוקר במחלקה המשפטית בפורום קהלת ומתמחה במשפט ציבורי.

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