Organizing principles for organizing principles

The Supreme Court of Canada’s framework era may have been short lived. Its framework usage rate has dropped from early-term heights like the Nikkei 225:

• Reference re An Act: 17 “frameworks” in 137 paragraphs (12.4 FWs/100¶)
• Dickson: 59 “frameworks” in 523 paragraphs (11.2  FWs/100¶)
• Société des Casinos: 103 “frameworks” in 221 paragraphs (44.6 FWs/100¶!)
• Canada (Attorney General) v. Power: 14 frameworks in 383 paragraphs (3.6 FW/100¶)
• Ontario (Attorney General) v. Restoule: 11 frameworks in 311 paragraphs (3.5 FW/100¶)

Frameworks may have fallen out of favour (for now), but the Court remains preoccupied with constitutional structure. It continues to rely on concepts and metaphors that may seem banal or familiar but nonetheless have profound implications.

Most recently, in Restoule, the Court referred to “organizing principles.” Specifically, at ¶17, Jamal J. wrote: 

“The Anishinaabe of the upper Great Lakes have a longstanding system of law and governance that informed, and continues to inform, their perspectives on the Robinson Treaties. Two key organizing principles of Anishinaabe law and governance are pimaatiziwin, the principle that everything is alive and sacred, and gizhewaadiziwin, the way of the Creator, which encompasses sacred laws of creation (emphasis added).”

Jamal J. did not himself divine these “organizing principles.” The trial judge and the Court of Appeal attribute them to the testimony of Anishnaabe Elder Fred Kelly (2021 ONCA 779, ¶13; 2018 ONSC 7701, ¶21). The Court has been using “organizing principles” to organize Canadian law for nearly 40 years now. By discussing Anishnaabe law in the same terms, the Court appears to recognize and respect Anishnaabe law as law. However, the implications of such treatment are not yet clear, since the operation of “organizing principles” in Canadian law remains unclear.

The concept of “organizing principles” may seem basic, even redundant. Do principles necessarily organize the phenomena to which they relate, or can “non-organizing” or “dis-organizing” principles even exist?

Despite their ordinary appearance, and leaving such philosophical questions aside, the Court’s use of “organizing principles” warrants closer examination. Their relatively recent emergence and rapid diffusion confirm subtle yet pervasive influence over the development of Canadian law.

Perhaps most prominently, the Court referred to organizing principles in Reference re Quebec Secession when it announced the four era-defining unwritten constitutional principles: 

“In order to endure over time, a constitution must contain a comprehensive set of rules and principles which are capable of providing an exhaustive legal framework for our system of government.  Such principles and rules emerge from an understanding of the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning.  In our view, there are four fundamental and organizing principles of the Constitution which are relevant to addressing the question before us (although this enumeration is by no means exhaustive): federalism; democracy; constitutionalism and the rule of law; and respect for minorities.” (¶32, emphasis added)

So the unwritten constitutional principles are also “organizing principles.” But the story neither starts nor stops there. 

In fact, the Court first invoked organizing principles when interpreting the Criminal Code in 1987 and, by 2024, they had spread throughout and beyond Canadian law. 

Often, but not always, the Court has applied the concept retroactively to characterize previous judgments.

This timeline confirms the swift spread of organizing principles via the Court’s reasons.

1987	Criminal Code	R. v. Paré, [1987] 2 SCR 618, ¶33: “The offences listed in s. 214(5) are all offences involving the unlawful domination of people by other people. Thus an organizing principle for s. 214(5) can be found. This principle is that where a murder is committed by someone already abusing his power by illegally dominating another, the murder should be treated as an exceptionally serious crime. Parliament has chosen to treat these murders as murders in the first degree.”
1988	Evidence	R. v. Corbett, [1988] 1 SCR 670, ¶99: “The organizing principles of the law of evidence may be simply stated. All relevant evidence is admissible, subject to a discretion to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy. Questions of relevancy and exclusion are, of course, matters for the trial judge, but over the years many specific exclusionary rules have been developed for the guidance of the trial judge, so much so that the law of evidence may superficially appear to consist simply of a series of exceptions to the rules of admissibility, with exceptions to the exceptions, and their sub‑exceptions.”
1994	Criminal Law	R. v. P. (M.B.), [1994] 1 SCR 555, p. 577: “Perhaps the single most important organizing principle in criminal law is the right of an accused not to be forced into assisting in his or her own prosecution.”R. v. Jones, 1 [1994] 2 SCR 229, p. 249: “It should therefore be made clear here that I distinguish between the principle against self-incrimination and the privilege against self-incrimination…The principle is a general organizing principle of criminal law from which particular rules can be derived (for example, rules about non-compellability of the accused and admissibility of confessions).”
1996	Statutory Interpretation	Reference re Amendments to the Residential Tenancies Act (N.S.), 1996] 1 SCR 186, ¶98: “Lamer C.J. in Reference Re Young Offenders Act and La Forest J. in Sobeys identified organizing principles and philosophies in the respective legislative schemes under consideration in those cases which were distinctly different from the conceptual basis for the powers exercised by the courts at the time of Confederation.”
1996	Aboriginal rights	R. v. Côté, [1996] 3 SCR 139: “These actors, of course, did not have the benefit of this Court’s recent holdings in Van der Peet, Gladstone, and N.T.C. Smokehouse Ltd. which articulated the organizing principles governing claims under s. 35(1) of the Constitution Act, 1982.”
1997	Constitutional text and structure	Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3, ¶95: “In the words of Rand J., the preamble  articulates “the political theory which the Act embodies”: Switzman, supra, at p. 306.  It recognizes and affirms the basic principles which are the very source of the substantive provisions of the Constitution Act, 1867.  As I have said above, those provisions merely elaborate those organizing principles in the institutional apparatus they create or contemplate.  As such, the preamble is not only a key to construing the express provisions of the Constitution Act, 1867, but also invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme.  It is the means by which the underlying logic of the Act can be given the force of law.”
1998	Charter	Schreiber v. Canada (Attorney General), [1998] 1 SCR 841: “the concept of a “reasonable expectation of privacy” is the organizing principle around which one can determine whether s. 8 applies to protect an individual’s interests in a given situation.”
2005	Private international law	Unifund Assurance Co. v. Insurance Corp. of British Columbia, [2003] 2 S.C.R. 63, ¶68: “In Hunt, supra, an organizing principle of the federation was found in the requirements of order and fairness, described by the Court as “constitutional imperatives” (p. 324). Within the Canadian federation, comity requires adherence to “principles of order and fairness, principles that ensure security of transactions with justice” (Morguard, supra, at p. 1097).”
2007	Public international law	R. v. Hape, 2007 SCC 26, ¶43: “While sovereignty is not absolute, the only limits on state sovereignty are those to which the state consents or that flow from customary or conventional international law.  Some such limits have arisen from recent developments in international humanitarian law, international human rights law and international criminal law relating, in particular, to crimes against humanity… Nevertheless, despite the rise of competing values in international law, the sovereignty principle remains one of the organizing principles of the relationships between independent states.”
2014	Contract law	Bhasin v. Hrynew, 2014 SCC 71, ¶66: the “organizing principle of good faith manifests itself through the existing doctrines about the types of situations and relationships in which the law requires, in certain respects, honest, candid, forthright or reasonable contractual performance.”
2024	Anishnaabe law	Restoule, ¶17: see above.

In less than 40 years, the concept of “organizing principles” has developed from shorthand for a method of determining legislative intent to a nearly universal, possibly defining feature of law itself. Organizing principles are now found throughout private law, public law, constitutional law, international law, and Indigenous law.

Examples of organizing principles include:

• good faith (Bhasin);
• sovereignty (Hape);
• the real and substantial connection test (Unifund; Sharp v. Autorité des marchés financiers, 2023 SCC 29, ¶160);
• the right of an accused not to be forced into assisting in his or her own prosecution (Smith v. Jones, [1999] 1 SCR 455);
• the presumption of innocence (R. v. Sinclair, 2010 SCC 35, ¶156; R. v. P. (M.B.), p. 577); and
• “The treatment of criminal offenders as rational, autonomous and choosing agents” (R. v. Ruzic, 2001 SCC 24, ¶45; R. v. Ryan, 2013 SCC 3, ¶40).

Some of the organizing principles are also unwritten constitutional principles (e.g. federalism, democracy, the rule of law, and respect for minorities, as noted above). Other organizing principles are also principles of fundamental justice, but not necessarily unwritten constitutional principles (e.g. the principle against self-incrimination). 

But what are organizing principles? The Court provides perhaps its most direct explanation in Bhasin at ¶64:

“As the Court has recognized, an organizing principle states in general terms a requirement of justice from which more specific legal doctrines may be derived. An organizing principle therefore is not a free-standing rule, but rather a standard that underpins and is manifested in more specific legal doctrines and may be given different weight in different situations. R. v. Jones, [1994] 2 SCR 229 at p. 249, R. v. Hart, 2014 SCC 52 at ¶124, Dworkin “Is law a system of rules?”. It is a standard that helps to understand and develop the law in a coherent and principled way.”

The reference to Dworkin and the metaphor of the “weight” these principles “may be given” are revealing: the Court is deploying and developing a non-positivist conception of law. This may be one important reason why, once adopted, the concept of “organizing principles” has not been limited to any one domain of law. 

Of course, this metaphor also obscures. Specifically, when combined with the passive voice, it obscures the power judges wield under this approach to law: who, exactly, weighs these principles?

Consider the hierarchy established by this quotation:

• A specific legal doctrine, which manifests or is underpinned by
• An organizing principle, which restates
• A requirement of justice.

Other cases have explained that organizing principles can be found in “found in the requirements of order and fairness” (Unifund), which have been linked to an effort to entrench neoliberal values into Canadian federalism, or “grounded in the value “placed by Canadian society upon individual privacy, personal autonomy and dignity”” (R. v. Jones, 2017 SCC 60, ¶29, citing Hart, at ¶ 123, citing R. v. White, [1999] 2 S.C.R. 417, at ¶ 43).

Judges use organizing principles to convert values into rules, and vice versa (i.e. when they retroactively recognize previous judgments as having established organizing principles). 

As used by the Court, organizing principles appear to have three basic functions:

1. Explanatory: the Court uses organizing principles to distill judgments into a general standard that can be used to render cases and entire areas of law more coherent. There are levels to this narrative, as the Court not only elaborates particular principles that define certain domains (e.g. criminal law, evidence, private international law) but by doing so also reinforces its preferred naturalistic account of how these principles “manifest” as new rules, as if the Court is just tending a garden and watching it bloom.

• Normative: the Court uses organizing principles to express and demonstrate what law should be. Consider again the final sentence from the Bhasin excerpt above. An organizing principle is “a standard that helps to understand and develop the law in a coherent and principled way.” Again, the sketch is incomplete: who, exactly, does this standard help to understand the law? More importantly, the sketch is circular, like an Escher drawing: these principles make the law principled.

• Generative: the Court uses organizing principles to produce new, more specific doctrines or “to fashion a “contextually-sensitive” new rule to address the gap in the law” (R. v. Hart, 2014 SCC 52, ¶123). In the passive voice the Court often prefers when minimizing its own influence, an organizing principle “manifests itself in specific circumstances” (Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, ¶65).

To be continued.