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David Schneiderman
noted that the appropriate way to resolve “complex governance problems”
in a federation such as Canada’s was “by seeking cooperative solutions that
meet the needs of the country as a whole as well as its constituent parts.”
This approach, the Court continued, “is supported by Canadian constitu-
tional principles” which “respect” the constitutional authority of each level of
government.
104
“Cooperation is the animating force,” the Court wrote: “The
federalism principle upon which Canada’s constitutional framework rests
demands nothing less.”
105
From this, Gaudreault-Desbiens describes the principle of federalism as
having played “a crucial role in the court’s reasoning.”
106
This does not seem a
fair reading of the case. The Court’s decision was driven primarily by its prior
interpretation of the textual division of powers (in GMC).
107
Most surprising
about the Securities Act Reference was the Court’s return to policing the divi-
sion of powers. This was a function the Court, up till now, appears to have
abandoned.
108
It is reminiscent of the period associated with classical legal fed-
eralism of the late nineteenth and early twentieth centuries, when the Judicial
Committee of the Privy Council invoked a “watertight compartments” met-
aphor to describe the law of Canadian federalism. Rather than succumbing
to the modern discourse of inevitable overlap (or “double aspect”), the Court
vindicated traditional provincial authority over property and civil rights as
Quebec, Alberta and others had argued before the Court. Again, text and
precedent mostly persevered.
Which is not to say that there was no political context for the constitutional
dispute. Karazavin and Gaudreault-Desbiens claim, for instance, that the
Court’s legitimacy hung in the balance. So long as the Court issued reasons
having “genuine normative stringency,” its legitimacy would be preserved.
That is, so long as the Court applied the tests for federal trade and commerce
authority persuasively, legitimacy concerns were less likely to arise. That
the Court need only apply precedent persuasively was an implicit acknowl-
edgment that the stakes in the Securities Act Reference were not so high.
109
Having sought judicial rulings from provincial courts of appeal as a means of
halting the federal scheme it could hardly be a source of complaint for the
104
Reference re Securities Act (note 87), paras 132–3.
105
Ibid.
106
Gaudreault-Desbiens, Supra note 99, 14.
107
General Motors of Canada Ltd. v. City National Leasing [1989] 1 S.C.R. 641.
108
Bruce Ryder, “Equal Autonomy in Canadian Federalism: The Continuing Search for Balance
in the Interpretation of the Division of Powers” (2011) 54 Sup Ct L Rev (2d) 565.
109
Noura Karazivan and Jean-François Gaudreault-Desbiens, “On Polyphony and Paradoxes in
the Regulation of Securities within the Canadian Federation” (2010) 40 Can Bus LJ 1, 38–9.
Unwritten Constitutional Principles in Canada
539
Quebec government to have the Supreme Court of Canada assume the task
of authoritatively resolving the dispute.
To the extent that an unwritten principle of federalism played a role in
the Securities Act Reference, it served, in the reading offered here, merely to
smooth ruffled feathers. It was a rhetorical aid – a strategic device, one could
say – a means by which the Court could convince its various audiences that
it was doing the right thing.
110
Particularly ironic is the fact that the Harper
government was espousing a version of classical legal federalism and the res-
toration of “constitutional balance” in the federation, namely, withdrawal of
the federal government from provincial jurisdictional space, in its campaign
platforms.
111
There was no need to make mention of unwritten constitutional
principles in Conservative campaign discourse, just as it was unnecessary in
the Securities Act Reference. The Court, from this perspective, acted consist-
ently with the expectations of many of the relevant political actors, though
at odds with the federal government’s attempted power grab in this instance.
18.5. Conclusion
If the argument in this chapter has been that the identification of unwritten con-
stitutional principles is best explained by the Supreme Court’s strategic behav-
ior, this does not mean that unwritten principles will not evolve into something
more legally robust having precedential value. Legal concepts have an ability
to live well beyond the reasons for their initial prompting, and can take on a
life of their own.
112
As the personnel on the Court changes, and as law students
are schooled in their utility, the Supreme Court may become more recep-
tive to unwritten constitutional principles. Some Justices, like Louis LeBel,
who did not sit on the Secession Reference bench and joined in the minority
opinion in Quebec v. Canada, have exhibited less timidity in this regard.
113
There is no reason to think that unwritten principles will not have more of a
110
Such a rhetorically minded approach to constitutional review was inaugurated, in Canada, by
Marc Gold and expounded by Andrée Lajoie. See e.g., Marc Gold, “The Mask of Objectivity:
Politics and Rhetoric in the Supreme Court of Canada” (1985) Supreme Court L Rev 455, and
Andrée Lajoie, Jugements des valeur (Paris: Presses Universitaires de France, 1997).
111
Schneiderman, Supra note 94, 89–93.
112
Karl Renner, The Institutions of Private Law and their Social Functions trans. Agnes
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