The Invisible Constitution in Comparative Perspective

Unwritten Constitutional Principles in Canada 

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that amendment to the “method of selecting Senators” required the consent of 

provincial governments. It could be that the Court wished to signal continuity 

with its earlier, pre-amending formula, decision responding to another unilat-

eral federal proposal to abolish and then erect a reformed (but still appointed) 

Senate. The federal proposal, the Court ruled in 1979, would destroy the fun-

damental features and “essential characteristics” of the Canadian Senate.

71

 

The justices may have been desirous of drawing upon the logic of the Court’s 

earlier ruling. Yet, this seemed an unnecessary strategy in light of the amend-

ing formula in Part V.

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 Perhaps the justices were fortifying their reasons 

because they were fearful of federal government blowback?

This is precisely what happened a week after release of the Senate Reference, 

at which time the Prime Minister and the Chief Justice of the Supreme Court 

publicly drew swords. In an unprecedented assault on judicial independence, 

the government alleged that the Chief Justice acted “inappropriately” by con-

tacting the Prime Minister’s Office about a legal dispute likely to come before 

the Court. The attack appeared precipitated by the anger directed toward the 

Court by the governing federal Conservative Party for ruling against them in 

the Senate Reference, released a week earlier.

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 The allegation turned out to 

be without substance, and the Prime Minister quickly retreated.

74

 However 

frigid the relationship was between the executive and the judicial branches, 

there was little or no threat at this time to the Court’s legitimacy owing to these 

false allegations. The reference to unwritten constitutional principles turns 

out not to have succeeded in forestalling this kind of response.

The intuition that the Court did not fully mean what it said in the Secession 

Reference was fortified by the decision in Quebec v. Canada.

75

 The constitu-

tional dispute concerned the destruction of federal firearms registry data that 

had been collected with the effort and cooperation of provincial governments. 

The registry was a 1995 initiative of the Chretien Liberal government respond-

ing to the 1989 massacre of fourteen female engineering students at the École 

71 

Re Authority of Parliament in Relation to the Upper House [1980] 1 SCR 54, 78. See discussion 

in Schneiderman, Supra note 66, 195–8.

72 

A similar unnecessary reliance upon the unwritten constitution appears to have been em-

braced in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General)  

[2014] 3 S.C.R. 31 where the Supreme Court of Canada invoked the “rule of law” (without 

referring to it as an unwritten principle) as supplemental to a reading of the judicature section 

of the Constitution Act, 1867, s. 96. The majority, as a consequence, were able to “resolve the 

fundamental issue of principle in this appeal” with reference to the text of the constitution 

(para. 38). The majority’s appeal to the rule of law, however, signals that something more was 

going on.

73 

See discussion in Schneiderman, Supra note 66, 234–5.

74 

Sean Fine, ‘High Court Drama’ The Globe and Mail (May 24, 2014) A1.

75 

Quebec (Attorney General) v. Canada (Attorney General) (note 16).

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