Unwritten constitutional principles are the “lifeblood” of the Canadian Constitution (Reference re Secession of Quebec (QSR), [1998] 2 S.C.R. 217, ¶51) and “the vital unstated assumptions upon which the text is based” (QSR ¶49) which are so fundamental that to explicitly identify them in the text “might have appeared redundant, even silly, to the framers” (QSR ¶62).
We know at least a dozen of them: the separation of powers, parliamentary sovereignty, parliamentary privilege, the honour of the Crown, federalism, democracy, the rule of law, constitutionalism, the protection of minorities, judicial independence, the doctrine of paramountcy, responsible government, and so on.
We know what we can do with them. According to a majority of the Supreme Court of Canada in Toronto (City) v. Ontario (Attorney General): “unwritten constitutional principles may assist courts in only two distinct but related ways…First, they may be used in the interpretation of constitutional provisions… Secondly, and relatedly, unwritten principles can be used to develop structural doctrines unstated in the written Constitution per se, but necessary to the coherence of, and flowing by implication from, its architecture” (2021 SCC 34, ¶¶54-56).
And we know what we cannot do with them. According to the same majority, acknowledging a possible (sui generis) caveat for the (sui generis) honour of the Crown, “unwritten constitutional principles cannot serve as bases for invalidating legislation” (Toronto (City) ¶63).
But what do we know about constitutional imperatives?
Already in 2024, the Court has clearly identified two constitutional imperatives: reconciliation (Shot Both Sides v. Canada, 2024 SCC 12, ¶79) and judicial independence (R. v. Edwards, 2024 SCC 15, ¶11). It has made ambiguous statements about a third potential imperative: the separation of powers (Edwards ¶89).
The proliferation of frameworks may have dominated the headlines (at least around here), but the (re)emergence of constitutional imperatives may prove by far the more consequential development of this Supreme Court season.
Each of these concepts had previously received a constitutional classification from the Court: judicial independence (Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 SCR 3, ¶83) and the separation of powers (Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, ¶35; R v. Albashir, 2021 SCC 48, ¶27) are also constitutional principles, whereas reconciliation is “a first principle of Aboriginal law” (Mikisew Cree (2018) ¶22) and the “grand purpose” of s. 35 (Beckman v.Little Salmon/Carmacks First Nation, 2010 SCC 53, ¶10).
Now we know they are also constitutional imperatives, but it remains unclear whether this label is intended to convey something meaningful about these concepts or is another rhetorical flourish (which itself would convey something meaningful about these concepts).
This is not the first time the Court has invoked constitutional imperatives. In Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40, it classified the duty to consult as a constitutional imperative (¶24). It also has identified at least three other imperatives during its drive to constitutionalize private international law. In Hunt v. T&N plc, the Court determined that order and fairness are “constitutional imperatives, and as such apply to the provincial legislatures as well as to the courts” ([1993] 4 SCR 289, p. 324). In Club Resorts Ltd. v. Van Breda, the Court wrote: “Since Hunt, the real and substantial connection test has been recognized as a constitutional imperative in the application of the conflicts rules. It reflects the limits of provincial legislative and judicial powers and has thus become more than a conflicts rule” (2012 SCC 17, ¶28).
The Court has found at least six (order, fairness, the real and substantial connection test, judicial independence, reconciliation, and the duty to consult) and possibly seven (the separation of powers) constitutional imperatives in the last 30 years. Fortunately for this post, it has provided just enough commentary on their nature, status, and implications to maintain an air of mystery.
In its private international law jurisprudence, the Court has characterized constitutional imperatives as requirements. In Imperial Tobacco, the Court wrote: “The territorial limitations on provincial legislative competence reflect the requirements of order and fairness underlying Canadian federal arrangements…” (British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, ¶27).
The characterization of constitutional imperatives as requirements is consistent with a plain language interpretation of “imperative” and consistent with a very recent statement from the Court in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families: “Government actors are bound by legislative limits imposed on them by Parliament and the legislatures, subject to constitutional imperatives” (2024 SCC 5, ¶57). The Court presents constitutional imperatives as constraints that act directly on government actors and that legislatures cannot override. In short: as requirements.
This understanding of constitutional imperatives as requirements is consistent also with a much earlier statement from Beetz J. in OPSEU v. Ontario (AG): “quite apart from Charter considerations, the legislative bodies in this country must conform to these basic structural imperatives and can in no way override them” ([1987] 2 SCR 1, p. 57). On the same page, Beetz J. also referred to those “basic structural imperatives” as “the structural demands of the Constitution” and the “basic constitutional structure”: namely, “freely elected legislative bodies at the federal and provincial levels,” as well as the freedoms and other institutions required for the free public discussion of affairs on which those bodies depend. We are still talking, at least in part, about the implied bill of rights.
From these excerpts, it appears that constitutional imperatives have a structural character. They are inherent in our constitutional arrangements and may capture essential aspects of certain constitutive institutions, including the superior courts, the Crown, and the provincial legislatures. For example, the Court in Hunt explained that, due to the imperatives of order and fairness, the doctrine of full faith and credit is “inherent in the structure of the Canadian federation, and, as such, is beyond the power of provincial legislatures to override” (p. 324).
These constitutional imperatives run deep and, much like unwritten constitutional principles, are bound up with notions of legitimacy that are rarely expressed (and, when expressed, rarely made clear). In Van Breda, the Court acknowledged this connection between structure and legitimacy: “in Canadian constitutional law, the real and substantial connection test has given expression to the constitutionally imposed territorial limits that underlie the requirement of legitimacy in the exercise of the state’s power of adjudication” (Van Breda ¶32). The same connection with legitimacy exists for imperatives that are less obviously structural than federalism, as demonstrated by the apparently immortal concerns embodied by the implied bill of rights.
For now, these quotations and observations raise more questions than they answer. Consider, for example, how the use of naturalistic metaphors (e.g. “reflect”) can obscure the nature of and relationships between these concepts. In Imperial Tobacco, the Court claimed that “The territorial limitations on provincial legislative competence reflect the requirements of order and fairness underlying Canadian federal arrangements” (¶27). In Van Breda, it wrote that the real and substantial connection test “reflects the limits of provincial legislative and judicial powers and has thus become more than a conflicts rule” (¶28). In the former, the constitutional imperatives of order and fairness precede and generate the territorial limitations on provincial legislative competence. But in the latter, those limitations are the source of the constitutional imperative of the real and substantial connection test. Do these constitutional imperatives somehow occupy different ranks in the constitutional order? How can we distinguish those ranks and relate them to other constitutional elements? What, if anything, lies beneath the most fundamental imperatives?
The Court’s use of constitutional imperatives also suggests a potential inconsistency with the majority in Toronto (City) and the underlying preoccupation with parliamentary sovereignty that has characterized so many of the Court’s judgments in recent years. Most of these constitutional imperatives are also unwritten constitutional principles. As noted above, the Toronto (City) majority found that “unwritten constitutional principles cannot serve as bases for invalidating legislation.” However, the Court has repeatedly indicated that constitutional imperatives can and do impose substantive limitations on legislative bodies (OPSEU p. 57; Reference re An Act ¶57; Hunt p. 324). Is the subtle rise of constitutional imperatives a response to the surge in support for parliamentary sovereignty over the past few Court seasons? Is parliamentary sovereignty no longer primus inter pares?
A seemingly offhand remark in R. v. Kruk, 2024 SCC 7 implies an even more profound role for constitutional imperatives: “When the rule [against ungrounded common-sense assumptions] comes into play in sexual assault cases in particular, constitutional imperatives call for the consideration of the Charter rights of both accused persons and complainants as well as the interests of society at large (R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v. J.J., 2022 SCC 28)” (¶17). The only reference to constitutional imperatives in those three cases comes in Rowe J.’s dissent in JJ, where he writes: “In order to bring coherence to the application of s. 7 and ss. 8 to 14 when constitutional claims allege violations of s. 7 as well as other sections of the Charter, the Court should adopt and consistently apply an interpretive approach that is in line with the structure and purpose of the Charter. Doing so is a matter of constitutional imperative.” This excerpt reveals a meta-structural concern (what structural elements are implied by the very notion of constitutional structure?) with coherence that is beyond the scope of this (admittedly long) post but that we may need to address in order to understand the nature, function, and operation of constitutional imperatives.
In the meantime, constitutional imperatives can do more than inspire arcane musings. They can also help us resolve practical issues, such as the standard of review for compliance with the duty to consult. According to the Court in Haida Nation (and as explained in a previous post), whether Crown conduct meets the constitutional standard of meaningful consultation is a mixed finding of law and fact subject to review on the standard of reasonableness. However, the judgments in Societé des Casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec indicate that, after Vavilov, the standard of review for mixed findings of law and fact in the constitutional context is correctness. According to Vavilov, the default standard of reasonableness embodies deference to institutional design choices made by the legislature (and that deference is driven by underlying concerns about parliamentary sovereignty (a constitutional principle), democracy (another constitutional principle), and (it goes without saying) the legitimacy of judicial review (e.g. Vavilov ¶¶24, 26, 30).
Those concerns do not apply with the same force in the context of the duty to consult, which is a constitutional imperative that also serves the constitutional imperative of reconciliation (another strange conceptual relationship). Whether the government is exercising a prerogative or an authority assigned by legislation, it does not act on a constitutional blank slate: “[t]he honour of the Crown is always at stake in its dealings with Aboriginal peoples” (Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, ¶16). The honour of the Crown is always already present and in doubt: it is inherent in the Crown itself and is imperiled by the Crown’s relationships with indigenous peoples due to the unilateral assertion of sovereignty. The Crown is required by its own nature to live up to the promise inherent in that assertion: it will act lawfully and therefore respect their rights. That substantive limitation on the authority of the Crown is expressed in Section 35 of the Constitution Act, 1982. The Crown is expected – but not assumed – to act honourably: that is why the duty to consult and accommodate exists and is one (albeit complex) reason courts rely so heavily on declaratory relief in cases involving indigenous peoples and aboriginal rights (e.g. Shot Both Sides ¶70). The honour of the Crown is itself an unwritten constitutional principle (Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, ¶69). According to Abella J.’s dissent in Mikisew Cree(2018), it is also a constitutional imperative (¶55). Regardless of its own ambiguous status, the purpose of the honour of the Crown is the freshly minted constitutional imperative of reconciliation (Mikisew Cree (2018) ¶22).
Viewed in light of such fundamental legal and constitutional obligations, a legislature’s decision to delegate (or simply leave) decision-making responsibility to the government does not entail deference when indigenous peoples’ rights are involved: the imposition of Crown sovereignty has placed the honour of the Crown permanently in question and spawned the constitutional imperative of reconciliation. As stated repeatedly by the Court, legislatures must abide by constitutional imperatives: their institutional design choices cannot displace this basic constraint on the Crown, which requires the perpetual justification of its exercise of authority over indigenous peoples and their territories. We may not yet know a lot about constitutional imperatives, but we do know reconciliation presents fundamental challenges for the legitimacy of Crown rule because it implicates the very essence of the Crown. What does the honour of the Crown require? Tough question, no doubt, but it seems important to get the answer right. Therefore, reasonableness is not the proper standard of review for Crown efforts to discharge the duty to consult. The question of whether Crown conduct constitutes meaningful consultation (and workable accommodation) should be reviewed on a standard of correctness.
This close connection with the constitutional imperative of reconciliation may also explain why the honour of the Crown, unlike every other unwritten constitutional principle, may apply directly to government action.
Hopefully, we will get answers to some of these questions when the Court releases its reasons in Restoule v. Canada (Attorney General) later this year.
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