Architects and Artisans

The Constitution of Canada has an architecture. Another name for that architecture is the basic constitutional structure. 

• “Our Constitution has an internal architecture, or what the majority of this Court in OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at p. 57, called a “basic constitutional structure”” (Reference re Secession of Quebec, [1998] 2 S.C.R. 217, ¶50).

• “The Constitution should not be viewed as a mere collection of discrete textual provisions. It has an architecture, a basic structure” (Reference re Senate Reform, 2014 SCC 32, ¶27).

This familiar metaphor is profound: architecture is built by humans but must comply with certain natural laws (e.g. gravity) to serve its various physical and aesthetic functions. 

The notion of constitutional architecture also has profound implications for the Constitution and the Court.

• “The notion of architecture expresses the principle that “[t]he individual elements of the Constitution are linked to the others, and must be interpreted by reference to the structure of the Constitution as a whole”: Secession Reference, at para. 50… In other words, the Constitution must be interpreted with a view to discerning the structure of government that it seeks to implement. The assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another must inform our interpretation, understanding, and application of the text” (Re Senate Reform ¶26, emphasis added).

The Constitution has a purpose: it “seeks to implement” a specific “structure of government.” 

That purpose was built into the Constitution by the framers: the people who wrote and approved the texts that comprise the explicit parts of the Constitution. Our constitutional structure is immanent within the constitutional text.

• “The principle of democracy has always informed the design of our constitutional structure, and continues to act as an essential interpretive consideration to this day.  A majority of this Court in OPSEU v. Ontario, supra, at p. 57, confirmed that “the basic structure of our Constitution, as established by the Constitution Act, 1867, contemplates the existence of certain political institutions, including freely elected legislative bodies at the federal and provincial levels”.  As is apparent from an earlier line of decisions emanating from this Court, including Switzman v. Elbling, 1957 CanLII 2 (SCC), [1957] S.C.R. 285, Saumur v. City of Quebec, 1953 CanLII 3 (SCC), [1953] 2 S.C.R. 299, Boucher v. The King, 1950 CanLII 2 (SCC), [1951] S.C.R. 265, and Reference re Alberta Statutes, 1938 CanLII 1 (SCC), [1938] S.C.R. 100, the democracy principle can best be understood as a sort of baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated.  It is perhaps for this reason that the principle was not explicitly identified in the text of the Constitution Act, 1867 itself.  To have done so might have appeared redundant, even silly, to the framers.  As explained in the Provincial Judges Reference, supra, at para. 100, it is evident that our Constitution contemplates that Canada shall be a constitutional democracy. Yet this merely demonstrates the importance of underlying constitutional principles that are nowhere explicitly described in our constitutional texts. The representative and democratic nature of our political institutions was simply assumed.” (QSR ¶62)

The framers’ use of the medium of law to establish the constitutional structure implicates the rule of law, which imposes a certain discipline on the judiciary that requires courts to respect the text, much like a carpenter must respect wood to construct a stable building.

• “The rule of law is not an invitation to trivialize or supplant the Constitution’s written terms.  Nor is it a tool by which to avoid legislative initiatives of which one is not in favour.  On the contrary, it requires that courts give effect to the Constitution’s text, and apply, by whatever its terms, legislation that conforms to that text” (British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, ¶67).

• “…constitutional interpretation, being the interpretation of the text of the Constitution, must first and foremost have reference to, and be constrained by, that text. Indeed, while constitutional norms are deliberately expressed in general terms, the words used remain “the most primal constraint on judicial review” and form “the outer bounds of a purposive inquiry”…The Constitution is not “an empty vessel to be filled with whatever meaning we might wish from time to time”: Reference re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313 (“Re PSERA”), at p. 394; Caron, at para. 36. Significantly, in Caron, the Court reiterated this latter passage and reasserted “the primacy of the written text of the Constitution”: para. 36; see also para. 37” (Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, ¶9)

Further, the structure envisioned by the framers in the constitutional texts dictates the existence and function of the Court as the apex court in our legal and constitutional system.

• “We have seen that the Supreme Court was already essential under the Constitution’s architecture as the final arbiter of division of powers disputes and as the final general court of appeal for Canada. The Constitution Act, 1982 enhanced the Court’s role under the Constitution and confirmed its status as a constitutionally protected institution” (Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21 ¶88).

The manner and form in which the framers expressed their intent to implement a specific structure of government also dictates how the Court must perform its function. Specifically, the Court must discern and help to realize that constitutional structure (aka the intent of the framers) by interpreting the texts “in a broad and purposive manner and placed in their proper linguistic, philosophic, and historical contexts” and also in a manner “informed by the foundational principles of the Constitution” (Re Senate Reform ¶25). 

In these excerpts, the Court expresses and reinforces tight conceptual connections between text, intent, structure, function, and legitimacy:

• The text of the Constitution embodies the framers’ intent 
• The framers’ intent was to use law to realize a particular structure of government 
• That structure necessitates the existence and function of the Court as a final constitutional arbiter
• The Court’s legitimacy depends on fealty to the framers’ intent, namely by complying with the formal bounds of the Court’s role, which includes serving the framers’ intent when interpreting the Constitution.

These connections have been confirmed by the majority reasons in recent cases concerning the use of international law and unwritten constitutional principles, which ultimately reinforced the relative prominence of text within purposive interpretation.

• “This felicitous phrase [‘courts ought “not to read the provisions of the Constitution like a last will and testament lest it become one”’] cannot, however, be taken as minimizing the primordial significance of constitutional text as it has since, and repeatedly, been recognized in this Court’s jurisprudence: see, e.g., Caron, at para. 36; Vancouver Island Railway, at p. 88. It is not the sole consideration, but treating it as the first indicator of purpose is not in the least inconsistent with the principles of Charter interpretation; it is in fact constitutive of them” (9147-0732 Québec inc. ¶11).

• “It is not for the Court to do by “interpretation” what the framers of our Constitution chose not to do by enshrinement, or their successors by amendment” (Toronto (City) v. Ontario (AG), 2021 SCC 34, ¶82).

These interlocking concepts of constitutional text, structure, and legitimacy explain the Court’s preoccupation with alterations to constitutional architecture in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families. In that case, the Court repeatedly stated that Parliament cannot and the Act itself does not alter the division of powers contained in the Constitution Act, 1867 or, more broadly, “the architecture of the Constitution” (2024 SCC 5, ¶¶9, 120, 130, 133).

The Court has identified some elements of the constitutional architecture (or “basic constitutional structure”), including:

• the division of powers (obviously);
• the Supreme Court of Canada (as above);
• “freely elected legislative bodies at the federal and provincial levels” and the freedoms and other institutions required for the free public discussion of affairs on which those bodies depend (OPSEU v. Ontario (AG), p. 57);
• an unelected federal senate (Re Senate Reform Act, ¶¶3, 58); and
• parliamentary sovereignty (“One fundamental postulate of our constitutional architecture is parliamentary sovereignty” (Reference re An Act, ¶57); “the principle of parliamentary sovereignty remains foundational to the structure of the Canadian state: aside from these constitutional limits, the legislative branch of government remains supreme over both the judiciary and the executive” (Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48, ¶58)).

Indigenous peoples, governments, and rights are not – yet – recognized by the Court as part of the constitutional architecture. 

Instead, recent judgments suggest Indigenous peoples and their institutions have been relegated to a different constitutional metaphor: the constitutional fabric. 

• “As expressions of partnership between nations, modern treaties play a critical role in fostering reconciliation. Through s. 35 of the Constitution Act, 1982, they have assumed a vital place in our constitutional fabric.” (First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58 , ¶1, emphasis added)

• “Fundamentally, the protection of Indigenous difference in s. 25 reflects the central place of Indigenous peoples and their governments in Canada’s constitutional fabric” (Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10, ¶171 (majority), emphasis added).

Most recently, in R. v. Tayo Tompouba, 2024 SCC 16, the Court reminded us that English-French bilingualism is another thread in our constitutional fabric. Before referencing s. 133 of the Constitution Act, 1867 and ss. 16-20 of the Charter, Wagner C.J.’s reasons for the majority explained that “The inextricable link between institutional judicial bilingualism and the protection of linguistic minorities, as well as the importance of these two concepts, are reflected in Canada’s constitutional fabric” (¶28). 

This excerpt echoed (but did not cite) Karakatsanis J.’s dissenting reasons in Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2013 SCC 42, ¶106: “Sections 16 and 23 of the Charter affirm the fundamental importance of bilingualism in the Canadian constitutional fabric.”

Instead, to explain the constitutional significance of institutional judicial bilingualism, Wagner C.J. in Tayo Tompouba cited both sets of reasons from Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13 (CSF (2020)):

• At ¶¶12-13 of CSF (2020), Wagner C.J. wrote for the majority: “The historical and social context at the root of language rights in education makes clear the unique role of s. 23 in Canada’s constitutional landscape. In an oft‑quoted passage, Dickson C.J. illustrated the section’s importance by stating that it represents a “linchpin in this nation’s commitment to the values of bilingualism and biculturalism” (Mahe v. Alberta, 1990 CanLII 133 (SCC), [1990] 1 S.C.R. 342, at p. 350). More recently, in Association des parents de l’école Rose‑des‑vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139 (“Rose‑des‑vents”), Karakatsanis J. noted that Canada has a bicultural founding character and that its commitment to bilingualism sets it apart among nations…However, the importance of s. 23 is not based solely on its role in the formation of Canada’s identity as a country. The section is also important because of the role it plays in the identity of Canadians as individuals and as members of linguistic communities. Section 23 is intended to preserve culture and language, two core elements of the notions of identity and well‑being of individuals and communities.”
• At ¶188 of CSF (2020), Brown and Rowe JJ. wrote in dissent: “As our colleague notes, it is impossible to separate the history of Canada from the history of its official languages: paras. 5‑12. Language and culture are inextricably linked to the Canadian identity.”

These bilingualism cases strongly suggest that our “constitutional fabric” concerns culture and identity.

Of course, the Court also has defined aboriginal rights in cultural terms. Recall the Van der Peet test for aboriginal rights: “an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right” (R v. Van der Peet, [1996] 2 SCR 507, ¶46). 

The characterization of Indigenous peoples primarily in cultural terms risks denying them constitutional agency. The Court has already defined the activities that establish and elaborate the “basic structure” of the Constitution in a way that excludes Indigenous peoples from its “primordial” textual origins. Per Re Senate Reform, “the Constitution must be interpreted with a view to discerning the structure of government that it seeks to implement” and the Court must discern that structure from the form and content of the texts adopted by the framers. Notoriously, the framers of the documents listed in the Schedule to the Constitution Act, 1982(or those listed in RSC 1985, App. II) did not include Indigenous peoples and their governments. Even if certain Indigenous organizations were involved in the negotiations that led to the adoption of s. 35 of the Constitution Act, 1982, Indigenous peoples and their governments were not among the constituent authorities (i.e. the provincial and federal governments) that approved the text as part of the constitutional amendment process. 

This risk is compounded when the marginalization of Indigenous peoples takes place via homespun metaphors such as “constitutional fabric” rather than openly and explicitly. At present, Indigenous peoples have a “place” in the sprawling Canadian Constitutional Universe. But that place – by definition – lies outside the “basic constitutional structure” because that structure arises from texts that Indigenous peoples did not write. 

Rather than architects, the Court’s imagery renders Indigenous peoples as artisans. They are sitting with Parliament and “braiding” different types of legal norms into a single “rope” (that somehow forms yet another framework) (Reference re An Act ¶7). But they are sitting in the shadow of the basic constitutional structure that was built by non-Indigenous framers and that, according to the Court, cannot be altered by their bespoke efforts.

Among other things, our “basic constitutional structure” dictates the function of certain core institutions and defines the nature and bases of their legitimacy (e.g. the Supreme Court must discern the structure immanent within constitutional text, while the Senate serves as “a complementary legislative body of sober second thought” with some measure of regional and minority representation (Re Senate Reform ¶¶15, 16, 63)). That structure also appears to have an inherent connection with the flourishing field of constitutional imperatives, which themselves have significant implications for the interpretation and application of the Constitution.

By contrast, it is not yet clear what our “constitutional fabric” does. Is it a decorative distraction from the radical effects of the Court’s new textualism? If it does hem Indigenous peoples into a primarily cultural role (aka a stereotype), how is it consistent with the constitutional imperative of reconciliation? Are there other interpretations and uses that can subvert this metaphor into a source of strength for Indigenous peoples and their governments?