Unfinished Business in Unwritten Justice: Unwritten Constitutional Principles After Toronto (City) v. Ontario (Attorney General)

Abstract

This article examines unwritten constitutional principles (UCPs) within the context of the Supreme Court of Canada’s 2021 obiter opinion in Toronto (City) v. Ontario (Attorney General). The Supreme Court has traditionally accepted three main arguments in justifying the use of UCPs. The Toronto (City) v. Ontario (Attorney General) majority strictly prescribed a “textual approach,” whereby a court broadly interprets the written Constitution, negating the importance of UCPs as independent legal tools. I respectfully submit that the majority failed to provide a reasoned framework for UCPs. I argue that certain constitutional issues arise that cannot be addressed through explicit constitutional provisions. Relying exclusively on enumerated provisions to invalidate legislation may stress the democratic authority of the Constitution when its provisions have a weak tie to a desired principle that addresses the constitutional threat at hand. In these cases, it is better if constitutional principles and values are openly acknowledged and subjected to careful consideration, analysis, caution, and criticism through structural argumentation. While the written text of the Constitution must always take priority, Canadian courts must sometimes turn to the full legal power of UCPs when faced with novel constitutional issues unforeseen when the Constitution was drafted.