such security. See W. R. Lederman, “The Independence of the Judiciary” (Part II) (1956) 34
, para. 109.
Unwritten Constitutional Principles in Canada
519
signaled a novel enlargement and significant departure from, the stock of
readily available legal techniques.
15
Informed by literature on judicial politics, I argue that the Court invoked
unwritten constitutional principles for “strategic” reasons. Though it often is
hard to separate out strategic judicial choices from legal ones, the Court in
the Secession Reference drew upon salient features of Canada’s constitutional
order, but without recourse to typical legal methods in order to reveal a novel
constitutional duty to negotiate. This had the distinct advantage of getting the
court out of a difficult predicament. What the Secession Reference together
with later decisions signals is that when the Court embraces unwritten princi-
ples it is likely engaging in some version of strategic behavior. This leads me
to a second hypothesis: that the Court’s invocation of unwritten constitutional
principles in the Secession Reference was not intended to determine consti-
tutional outcomes going forward. It was not meant, in other words, to harden
into doctrinal precedent. In short, the justices were being legally disingenuous.
Such an interpretation helps to explain the most recent test case of unwrit-
tenness in Quebec v. Canada,
16
concerning the destruction of Canada’s fire-
arms registry by the federal Conservative government. The Government of
Quebec sought to preserve those records for the purposes of law enforcement
within the Province. Quebec argued that the unwritten constitutional princi-
ple of cooperative federalism required that the federal government hand over
to its provincial counterpart registry records constructed using Quebec data.
The Supreme Court rejected this argument by a five to four vote (all three
Quebec justices dissenting). I hypothesize that a reluctance to innovate in
Quebec v. Canada, in the direction of adopting an unwritten constitutional
principle of federal loyalty, underscores the degree to which the Supreme
Court of Canada acted strategically in the past. As the Court was divided in
Quebec v. Canada, and as its personnel changes over time, one cannot say
that the justices are not at all interested in unwritten constitutional principles,
only that most are less interested than originally thought.
The discussion also provides an opportunity to consider the appeal of com-
parative constitutional law to the Supreme Court of Canada. This is because
the government of Quebec sought to import into Canadian constitutional
doctrine via unwritten principles, though not explicit about this, the con-
tinental idea of “federal loyalty.” This would have required that the federal
15
But see David J. Mullan, “Underlying Constitutional Principles: The Legacy of Justice Rand”
(2010–11) 34
Manitoba LJ 73, who describes “judicial support” in the period in which an
implied bill of rights was read into the division of powers of the Constitution Act, 1867 as
“equivocal at best and the seeming ambit of the doctrine’s operation limited” 76.
16
Quebec (
Attorney General) v.
Canada (
Attorney General) [2015] 1 SCR 693.
520
David Schneiderman
government act in ways consistent with the constitutional sinews that connect
the two orders of government.
17
As others have observed, the Canadian jus-
tices are not that interested in foreign constitutional law. This is despite the
long-standing tradition of drawing upon English constitutional law (the law
of the mother country), together with the occasional citation of American
constitutional law (the law of the parent company). There is, apart from these
exceptions, a tendency to be mostly disinterested in constitutional develop-
ments elsewhere.
I begin in Section
18.1
, with a brief discussion of the judicial politics liter-
ature and strategic decision-making. In Section
18.2
, I turn to the Secession
Reference and, in Section
18.3
, address a selection of the subsequent case
law, including Quebec v. Canada.
18
Section
18.4
turns to arguments made
by scholars from within Quebec who sought to adapt comparative constitu-
tional developments to Canadian circumstances. This provides an occasion
to reflect on the state of the constitutional law of federalism and comparative
constitutional influences.
18.1. Strategic
If we understand judges as being constrained principally by text, prec-
edent, and history, together with practices of judicial propriety – the tradi-
tional legal tools with which judges reason legally – it can be said that high
court decision-making operates under few other constraints.
19
In vexatious
constitutional disputes, where there will be no single obvious answer, there
is even more room for judicial maneuvering.
20
The political science lit-
erature on judicial behavior turns out to be helpful insofar as it offers up a
number of models, beyond traditional legal methods, with which to under-
stand high court decision-making. In the interests of brevity, two are taken up
for discussion here. The “attitudinal model” suggests that judicial preferences,
17
Concordat Case (1957) 6 BVerfGV 309 in Donald P Kommers, The Constitutional Jurispru-
dence of the Federal Republic of Germany, 2nd edn (Durham: Duke University Press 1997)
80–2.
18
I have elected not to discuss in this chapter the full complement of lower court and Supreme
Court of Canada decisions that invoke unwritten principles. For a broader discussion, see Jean
Leclair, “Canada’s Unfathomable Unwritten Constitutional Principles” (2002) 27 Queen’s Law
Journal 389.
19
Richard A Posner,
How Judges Think (Cambridge, MA: Harvard University Press, 2008) 12.
20
Michael McCann, “How the Supreme Court Matters in American Politics: New Institutional-
ist Perspectives” in Howard Gillman and Cornell Clayton (eds.), The Supreme Court in Amer-
ican Politics: New Institutionalist Interpretations (Lawrence, KS: University of Kansas Press,
1999) 65–6.
