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David Schneiderman
guide the behavior of the political branches in the event of a “clear majority”
voting to pursue secession. A more orthodox legal analysis would have focused
on Part V of the Constitution. A UDI on the part of one of the constituent
units of the federation would, as the Court declared in passing, run afoul of
Part V’s amending formulae. But there was no specificity to the discussion.
The Court exhibited little interest in these, more conventional, legal details.
57
Instead, it chose to emphasize unwritten elements, like a constitutional duty
to negotiate. Though the federalist side had asked for a more conventional
legal analysis, this was not what the Court embraced. Instead, it chose an
outcome that ensured maintenance of the Court’s legitimacy within Quebec.
It was, in short, an adroit performance.
The ruling was greeted with applause by both sides. Federalists and sov-
ereignists could both claim victory. Each side would battle things out in the
media circus that followed release of the opinion, each side seeking inter-
pretive control over the ambiguities in the Court’s ruling.
58
Members of the
Court could quietly resume their role as neutral arbiters in federalism disputes,
deflating the long-standing Quebec narrative of the Court as partisan in such
conflicts. The Court’s reputation was greatly enhanced. Indeed, the Court
recognized that the outer reaches of its legitimacy had been reached when
it declared the four unwritten constitutional principles would guide future
negotiations. The Court would not enforce or supervise those negotiations,
nor would it play any role in determining whether either party had discharged
its constitutional duty. It could safely return to the task of shuffling papers.
18.3. Abandonment
Unwritten constitutional law was now trending in Canadian scholarship. The
intensity with which scholars and lawyers took up unwritten principles was
startling. Warren Newman, for instance, described the Court’s opinion as “a
ringing declaration on the importance of constitutionalism and the rule of law
in Canada, and a powerful affirmation by the Supreme Court of the legal and
normative value that must be accorded to these principles by governments and
citizens alike.”
59
The Court’s objective, observed Mark Walters, was to “articu-
late basic legal assumptions that inhere in the human condition itself and that
57
Donna Greschner, “Goodbye to the Amending Formulas?” in David Schneiderman (ed.), The
Quebec Decision: Perspectives on the Supreme Court Ruling on Secession (Toronto: Lorimer,
1999), 153.
58
Sauvageau et al., Supra note 34, 121–5.
59
Warren J Newman, “The Principles of the Rule of Law and Parliamentary Sovereignty in
Constitutional Theory and Litigation” (2005) 16 National J of Constitutional L 175, 183.
Unwritten Constitutional Principles in Canada
529
therefore possess normative force independent of legislative enactment.”
60
Fervor dampened significantly six years later, when the Court signaled that
it was not very interested in such arguments. In British Columbia v. Imperial
Tobacco Canada Ltd., the Court was dismissive of arguments made by
tobacco manufacturers premised on unwritten principles.
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Tobacco manu-
facturers argued that British Columbia’s Tobacco Damages and Health Care
Costs Recovery Act, SBC 2000, c. 30, which authorized novel civil action to
recover healthcare expenditures incurred by the provincial government treat-
ing patients suffering from the health effects of consuming tobacco products,
violated the constitutional principles of judicial independence and the rule of
law. Justice Major, writing for a unanimous Court, found that no principles
of judicial independence were violated and that the broad version of the rule of
law that was invoked “would render many of our written constitutional rights
redundant.”
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Justice Major wrote:
The rule of law is not an invitation to trivialize or supplant the Constitution’s
written terms. Nor is it a tool by which to avoid legislative initiatives of which
one is not in favor. On the contrary, it requires that courts give effect to the
Constitution’s text, and apply, by whatever its terms, legislation that conforms
to that text.
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What the Imperial Tobacco case signaled is a Court disinterested in argu-
ments based upon unwritten constitutional principles. It underscored the
hunch that the Court, in the Secession Reference, did not mean what it
said when it described underlying principles as having “powerful normative
force.”
64
It would be wrong, however, to leave readers with the impression that the
Court gave up entirely on unwritten constitutional principles. Unwrittenness
played a modest role in Reference re Senate Reform, which considered the
constitutionality of a federal plan to hold provincial elections for appoint-
ment to the Canadian Senate.
65
The Canadian Senate is divided into four
regions, and senators are appointed to sit as representatives from each of the
ten provinces. As appointments are entirely under the control of the Prime
Minister, the Senate has served mostly as a house of patronage rather than an
60
Mark Walters, “The Common Law Constitution in Canada: Return of Lex Non Scripta as
Fundamental Law” (2001) 51 University of Toronto LJ 91, 93.
61
[2005] 2 SCR 473.
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