The Principles of Power

The majority in Power v. Canada (Attorney General), 2024 SCC 26 insists constitutional principles like “constitutionality and the rule of law” are “an essential part of our constitutional law” (¶5). This position is consistent with the unanimous opinion in Re Quebec Secession, which stated that underlying constitutional principles are “foundational” (¶49), and even the majority in Toronto (City): “Unwritten principles are therefore part of the law of our Constitution, in the sense that they form part of the context and backdrop to the Constitution’s written terms” (¶50).

However, Rowe J. dissents: “underlying/unwritten” constitutional principles “while being descriptive of the Constitution…are not themselves components of the Constitution” (¶265). Writing extrajudicially, he has acknowledged they are “features” of the unwritten Canadian Constitution (Rowe & Déplanche, 432). What is the difference between a “component” and a “feature”?

If (1) constitutional principles are not part of the Constitution, (2) they are “ascertained from the relationship between the institutions of the state, and (3) having been so ascertained, they are used to give further definition to those relationships” (¶265), then are these principles law or just ideas about law? The majority in Toronto (City), which included Rowe J., said “law”: “Unwritten principles are therefore part of the law of our Constitution, in the sense that they form part of the context and backdrop to the Constitution’s written terms” (¶50).

Does their status matter if judges can use them to interpret and fill gaps in the Constitution (i.e. to make and change constitutional law, including other constitutional principles)? 

Again, what is the point? Questions like these have been explored extensively elsewhere. To what end?

Are constitutional principles part of the Constitution? Check back next term. And the term after that. And probably the term after that. In the meantime, let’s try to figure out what the Court is actually doing with all these principles, structures, and imperatives. And frameworks. Never forget the frameworks.