Canada’s Unfathomable Unwritten Constitutional Principles
Article [Accepted Manuscript]
Publisher(s)Queen's Law Journal
- Université de Montréal. Faculté de droit
- Unwritten constitutional principles
- Principes non écrits de la constitution
- Loi constitutionnelle de 1867
- Constitution Act of 1867
- Judicial review
- Contrôle judiciaire
- Rule of law
- Primauté du droit
- Souveraineté parlementaire
- Parliamentary sovereignty
Since the advent of the Canadian Charter of Rights and Freedoms in 1982, Canadians courts have become bolder in the law-making entreprise, and have recently resorted to unwritten constitutional principles in an unprecedented fashion. In 1997, in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, the Supreme Court of Canada found constitutional justification for the independence of provincially appointed judges in the underlying, unwritten principles of the Canadian Constitution. In 1998, in Reference re Secession of Quebec, the Court went even further in articulating those principles, and held that they have a substantive content which imposes significant limitations on government action. The author considers what the courts' recourse to unwritten principles means for the administrative process. More specifically, he looks at two important areas of uncertainty relating to those principles: their ambiguous normative force and their interrelatedness. He goes on to question the legitimacy of judicial review based on unwritten constitutional principles, and to critize the courts'recourse to such principles in decisions applying the principle of judicial independence to the issue of the remuneration of judges.
LECLAIR Jean, "Canada’s Unfathomable Unwritten Constitutional Principles", (2002) Vol. 27, Queen’s Law Journal 389-443.