The Invisible Constitution in Comparative Perspective

Unwritten Constitution: The Precedents and Principles We Live By (New York: Basic Books, 

2012) 20.

3 

Tribe, Supra note 1, 10.

4 

Ibid.

, 28.

5 

See Rosalind Dixon and Adrienne Stone, “The Invisible Constitution in Comparative Per-

spective” Chapter 

1

 in this book.

6 

It more appropriately should be counted as the fifth. See Peter Russell, Constitutional Odys-

sey: Can Canadians Become a Sovereign People? 3rd edn (Toronto: University of Toronto Press, 

2003) 12.

18

Unwritten Constitutional Principles in Canada

Genuine or Strategic?

David Schneiderman

---

518 

David Schneiderman

to make war and peace).

7

 This is presaged by the Constitution’s suggestive 

preamble that declares the Constitution of 1867 to be one “similar in Principle 

to that in the United Kingdom.”

Much of the Canadian Constitution evinces elements of both specificity 

and generality, calling for numerous enhancements through the application 

of judicial methods together with intergovernmental practice.

8

 Judges in 

Canada have been granted license to adapt the constitution, within “natural 

limits,” to modern times.

9

 The Supreme Court of Canada has enthusiasti-

cally embraced this judicial practice of “filling in the gaps” of Canada’s con-

stitutional order in the 1990s with reference to constitutional principles. The 

preamble, the Supreme Court declared, serves as the “grand entrance hall 

to the castle of the Constitution.”

10

 Swept onto its threshold was the unwrit-

ten constitutional principle of “judicial independence.” The Court was there 

answering a question concerning the independence of provincial court judges 

who did not have constitutional security equivalent to that available to fed-

erally appointed justices.

11

 The Court construed the preamble as “inviting” 

the use of “organizing principles to fill” in “gaps in the express terms of the 

constitutional scheme.”

12

 Judicial independence could be inferred, in this way, 

as an “unwritten norm, recognized and affirmed by the preamble.”

13

 As a con-

sequence, provincial court judges were entitled to a semblance of institutional 

and financial security. The opinion helped to kick-start Canada’s contempo-

rary preoccupation with unwritten principles. The Court’s ruling in Reference 

re Secession of Quebec represents its apotheosis. The Court articulated a new 

“constitutional duty to negotiate,” drawing on what the Court described as 

four “constitutional principles” underlying the constitutional text (without 

mention of the Constitution’s preamble or convention).

14

 These decisions  

7 

See Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics 

2nd edn (Oxford: Oxford University Press 2014).

8 

For example, it declares, in its third schedule, that “Lighthouses and Piers, and Sable Island” 

fall within federal jurisdiction. The text also confers authority on the federal government to 

make laws in relation to various omnibus classes including a general one concerning “peace, 

order and good government.”

9 

This refers to the “living-tree” metaphor. It took some fifty years after its initial articulation, in 

Edwards v. AG Canada [1930] AC 124, for this interpretive rule to truly gain ground in Canada. 

See Vicki C. Jackson, “Constitutions as ‘Living Trees’? Comparative Constitutional Law and 

Interpretive Metaphors” (2006) 75 Fordham Law Review 921, 947.

10