Unwritten Constitutional Principles Like Democracy Is Part Of Constitution; But Cannot Be Used As Bases For Invalidating Legislation: Canada Supreme Court

The Supreme Court of Canada (5:4) observed that 'unwritten constitutional principles' like democracy, though part of Constitution, cannot be used as bases for invalidating legislation.

The court was considering a challenge against a law viz. Better Local Government Act, 2018, reducing the size of Toronto City Council wards from 47 to 25. The City and two groups of private individuals challenged the constitutionality of this Act on the ground that  it limited the Charter rights of electoral participants and violated the unwritten constitutional principle of democracy.

The majority judgment authored by the Chief Justice Wagner and Justice Brown, referred to its earlier rulings and observed that unwritten principles like democracy are  part of the Constitution, in the sense that they form part of the context and backdrop to the Constitution's written terms

"The democratic principle is relevant as a guide to the interpretation of the constitutional text. It supports an understanding of free expression as including political expression made in furtherance of a political campaign. But it cannot be used in a manner that goes beyond this interpretive role. In particular, it cannot be used as an independent basis to invalidate legislation", the majority observed. It gave two reasons to conclude thus:

(1) Such attempts trespass into legislative authority to amend the Constitution, thereby raising fundamental concerns about the legitimacy of judicial review and distorting the separation of powers

(2) unwritten constitutional principles are "highly abstract" -the nebulous nature of the 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.

"Even had the City established that the Act was inconsistent with the principle of democracy, it follows from the foregoing discussion that a court could not rely on that inconsistency to find the Act unconstitutional. The Act was enacted pursuant to a valid legislative process and the Province had no obligation to consult with the City before it introduced the legislation, or to introduce the legislation at a particular time.", the majority observed while dismissing the challenge.

Dissent Quotes Kesavananda Bharati case

The dissent, referring also to Indian judgment in Kesavananda Bharati case, noted that many Parliamentary system have recognized that unwritten constitutional principles have full legal force and can serve as substantive limitations on all branches of government.  Justice Abella, with whom other three judges agreed to, said that unwritten constitutional principles are not, as the majority suggests, merely "context" or "backdrop" to the text. On the contrary, unwritten principles are our Constitution's most basic normative commitments from which specific textual provisions derive, the judge said.

"That unwritten principles may be used to invalidate legislation if a case arises where legislation elides the reach of any express constitutional provision but is fundamentally at odds with our Constitution's "internal architecture" or "basic constitutional structure". This would undoubtedly be a rare case. But with respect, the majority's decision to foreclose the possibility that unwritten principles be used to invalidate legislation in all circumstances, when the issue on appeal does not require them to make such a sweeping statement, is imprudent. It not only contradicts our jurisprudence, it is fundamentally inconsistent with the case law confirming that unwritten constitutional principles can be used to review legislation for constitutional compliance. Reviewing legislation for constitutional compliance means upholding, revising or rejecting it. Otherwise, there is no point to reviewing it", the dissenting opinion read.

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