The Invisible Constitution in Comparative Perspective

The Supreme Court of Canada as an Instrument of Political Change, Royal Commission on 

the Economic Union and the Development Prospects for Canada vol. 47 (Toronto: University 

of Toronto), 60.

51 

Sauvageau et al., Supra note 34, 108.

52 

Reference re Secession of Quebec (note 14), paras 76, 84.

53 

The duty was derived, specifically, from two unwritten constitutional principles: democracy 

and the rule of law. All four of the constitutional principles, however, would be expected to 

guide negotiations between the two principal “majorities.”

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Unwritten Constitutional Principles in Canada 

527

not “explicit,” the Court wrote, but represented the “vital unstated assumptions 

upon which the text is based.”

54

 The “principles dictate major elements of the 

architecture of the Constitution itself and are as such its lifeblood.”

55

 This 

was “not an invitation to dispense with the written text of the Constitution,” 

the Court added. Nevertheless, underlying constitutional principles “may 

give rise to substantive legal obligations.”

56

 This looked like an invitation to 

question, under the umbrella of broad constitutional principles, all variety of 

government action.

It is curious that the Court would describe these features as unwritten. 

Each is given expression in constitutional text. Federalism is, of course, a 

key element: a division of powers between federal and provincial levels is 

expressly provided for in sections 91 and 92 of the Constitution Act, 1867. 

Democracy, admittedly, was not expressly provided for in 1867, though 

“having a Constitution similar in principle to that of the United Kingdom” 

probably ensured this by convention, in addition to the practice of having an 

executive responsible to the elected chamber. It is now expressly provided 

for, however, in the “democratic rights” sections of the Constitution Act, 1982  

(ss. 3–5). Constitutionalism and the rule of law, both old ideas, are present in 

contemporary constitutional text. Supremacy of the Constitution is provided 

for in section 52 of the 1982 Constitution, where it is described as “supreme law,” 

while Canada is described as having been “founded upon . . . the rule of law” in 

the 1982 preamble. There are multiple textual references to the protection of 

minorities in 1867 and 1982, among them, aspects of provincial autonomy, guar-

antees of denominational education rights and, later, official minority language 

education, together with equality rights and religious freedom. Reference to 

unwritten constitutional principles seemed overwrought, therefore, in light of 

the available constitutional text. These unwritten principles were not invisible 

to the Court’s audience. They could reasonably be derived from the text and 

from practice, but this not what the Court purported to be doing.

I surmise that the Court was acting strategically. It was providing cover 

for yet another unwritten feature of Canada’s constitutional order that it had 

newly discovered for the purposes of resolving this particularly fraught consti-

tutional dispute, namely, the constitutional duty to negotiate. By elucidating 

a number of powerful constitutional principles, apparently not derived from, 

but familiar to, the constitutional text, the Court would not be seen to be 

overreaching if, in addition, it found another unwritten principle that would 

54 

Reference re Secession of Quebec (note 14), para. 49.

55 

Ibid.

, para. 51

56 

Ibid.

, para. 54.

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528