Unwritten Constitutional Principles Redux?

In a recent post on this site, Jodi Martin ably canvassed the access to justice argument that lies at the heart of British Columbia (Attorney General) v. Dugald E. Christie, 2005 BCCA 631 [Christie]. My own interest in Christie is perhaps less-civic minded: for me, the interesting thing about this case is that it presents the Supreme Court of Canada (“SCC”) with an opportunity – indeed, Newbury J.A.’s majority judgment seems almost a challenge – to answer some of the many questions concerning the unwritten constitutional principles.

The rather spectacular emergence of the unwritten constitutional principles in the Provincial Judges Reference, [1998] 2 SCR 443 [Provincial Judges Reference], and Secession Reference, [1998] 2 SCR 217 [Secession Reference], has been followed by judicial reluctance to make use of the principles. Post Secession Reference, the SCC has largely declined to exercise the power of the unwritten constitutional principles or to define more certainly their scope, power, and relationship to the rest of the Constitution and to each other. In fact, in Imperial Tobacco, 2005 SCC 49 [Imperial Tobbaco], the SCC explicitly acknowledged the uncertainty the principles have introduced into Canadian law and seemed to emphasize the centrality of legislative supremacy; most striking of all, Major J. noted that “protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box.” The cumulative effect is, almost 10 years after the Secession Reference, the role the unwritten constitutional principles play in our law is still unclear.

Given the SCC’s apparent reluctance to engage with the unwritten constitutional principles, it will be very interesting to see how it chooses to respond to Newbury J.A.’s majority decision in Christie (Southin and Thackray JJ.A. dissenting). Newbury J.A. found that the Social Service Tax Amendment Act was ultra vires the province because it applied a 7% tax to legal services with no provision made for the indigent, and thereby violated the constitutional principle of access to justice. Notably, she engaged in a lengthy discussion about the principles and their use, including the central question regarding the extent to which the “right of access to justice, as a component of the rule of law, can provide a basis for striking down duly enacted legislation.” She found that it could, overriding the Province’s argument that the unwritten principles could only be used to “fill in gaps” in the express terms of the Constitution.

Newbury J.A. went on to provide a model for how the unwritten constitutional principles should be used – with careful reference to past cases that treated similar issues. In finding that “access to justice” is a constitutional norm – part of the rule of law – she traced the history of the concept and arrived at her own definition for the term. She then went on to consider at length the history of the unwritten constitutional principles, noting the uncertainty surrounding them and the difference between the earlier “ringing endorsement” of the principles in the Provincial Judges Reference and the Secession Reference and the recent deference to the legislatures in Imperial Tobacco.

Finally, she rejected the SCC’s conclusion in Imperial Tobacco, finding that it would allow even for legislation that completely blocked access to justice (whether through prohibitive fees or closing the courts) if the proper “manner and form” of legislation were complied with. She found that if access to the court is not guaranteed, then the rule of law is not guaranteed and that access to justice “flows by necessary implication” as does judicial independence, from the Constitution. She also found the principles of constitutionalism and democracy insufficient to justify the upholding of the legislation, because without access to the courts, those principles would have no meaning. She thus implicitly created a hierarchy among the principles, positing that when the rule of law and constitutionalism and democracy come into conflict, the rule of law must prevail.

Southin J.A.’s short but trenchant dissent (Thackray J.A. concurring) encapsulated the concerns that arise from the majority decision. She would have followed Imperial Tobacco and found that no court has the power to hold a statute that is validly enacted under the Constitution and not in conflict with any of the Constitution’s written terms to be of no force and effect. She found it to be irrelevant whether the tax in question is a good or a bad tax, or whether it impedes access to justice, as it is a statute enacted by the province within their sphere of power. She concluded that,

the words “rule of law” in the preamble do not create any substantive independent ground upon which a court can find duly enacted legislation to be “inconsistent with the provisions of the Constitution” and therefore of no force and effect.

She found that if the words “the rule of law” in the preamble do create such a power, then the courts must also find a way to define and apply the words “supremacy of God” in judicial review. Southin J.A. thus placed her emphasis on the written text of the constitution, clearly locating it above the unwritten constitutional principles in the hierarchy of power. She extended the argument in Imperial Tobacco, however, in suggesting that, contrary to the decision in the Secession Reference, those principles that find their origins in the preamble to the Constitution Act, 1867 cannot supersede the written text.

Regardless of whether or not one agrees with Newbury J.A., she is to be commended for a bold and well-reasoned judgment that will put the SCC in the position of having to answer questions relating to conflict between the unwritten constitutional principles themselves and to the balance between legislative supremacy and the principles. I hope very much that the SCC takes this opportunity to bring some clarity to the principles’ status, use and power.