The Structures of Power

The standard model of the Canadian Constitution involves two structures: an internal structure and an institutional structure. The internal structure can be understood as what the Constitution is, whereas the institutional structure can be understood as what the Constitution establishes.

This double aspect of constitutional structure is reflected in many Supreme Court of Canada reasons, including:

• Reference re Senate Reform, 2014 SCC 32: “The Constitution of Canada is ‘a comprehensive set of rules and principles’ that provides an ‘exhaustive legal framework for our system of government’” (¶23, citing Quebec Secession Reference ¶32)
• Toronto (City) v. Ontario (Attorney General), 2021 SCC 34  (majority): “The Constitution of Canada embodies written and unwritten norms. This Court has recognized that our Constitution describes an architecture of the institutions of state and of their relationship to citizens that connotes certain underlying principles” (¶49).

Each of the standard structures is contested: the Justices do not agree on the constituent elements of the internal or institutional structures, their arrangement, or their relative importance. 

Consider just a few select quotations:

• Attorney-General for Ontario v. Attorney-General for Canada, [1892] AC 571, 581: “In 1867, the desire of Canada for a definite Constitution embracing the entire Dominion was embodied in the British North America Act.”
• Re Resolution to amend the Constitution, [1981] 1 SCR 753, 883-884: “constitutional conventions plus constitutional law equal the total constitution of the country.”
• Reference re Secession of Quebec, ¶32: “ The “Constitution of Canada” certainly includes the constitutional texts enumerated in s. 52(2) of the Constitution Act, 1982.  Although these texts have a primary place in determining constitutional rules, they are not exhaustive.  The Constitution also “embraces unwritten, as well as written rules”,as we recently observedin the Provincial Judges Reference, supra, at para. 92.  Finally, as was said in the Patriation Reference, supra, at p. 874, the Constitution of Canada includes “the global system of rules and principles which govern the exercise of constitutional authority in the whole and in every part of the Canadian state.” These supporting principles and rules, which include constitutional conventions and the workings of Parliament, are a necessary part of our Constitution because problems or situations may arise which are not expressly dealt with by the text of the Constitution.”
• Canada (Attorney General) v. Power, 2024 SCC 26, ¶264 (Rowe J., dissenting): “Canada’s constitutional arrangements (aside from Aboriginal and treaty rights) consist of four components: (1) Constitution Acts of 1867 and 1982; (2) constitutional conventions; (3) Crown prerogative; and (4) parliamentary privilege.”

However, the two standard structures are not only contested: they are also complex. Each contains at least one additional structure, folded within and visible only to those trained to notice them, like the esoteric, higher-order dimensions of string theory. 

The Structure of Unwritten Constitutional Principles

The internal structure – the written and unwritten norms – includes the unwritten constitutional principles. Justice Rowe disagrees, but for now those principles form part of the Constitution and are understood as a coherent whole. As the entire Court explained in QSR: “These defining principles function in symbiosis. No single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other” (¶49). 

The unwritten principles may be interdependent, but they are distinct and differentiated. The spatial and physical metaphors employed by the majority in Power confirm that the principles have different functions and relationships. They have a structure of their own:

• Constitutionalism and the rule of law “lie at the root of our system of government” (¶55, citing QSR¶70).
• The separation of powers “is part of the foundational architecture of our constitutional order” (¶50).
  • That architecture is constructed on the roots of the rule of law and constitutionalism, without which the separation of powers could not exist.
  • The phrase “part of” implies other principles which comprise that architecture, unspecified here but elaborated in other cases (e.g. federalism, democracy).
• Parliamentary privilege “plays an essential role in our democratic and constitutional order by allowing legislative officials to carry out their function” (¶51)
  • Parliamentary privilege operates within the “constitutional order” which the separation of powers established atop constitutionalism and the rule of law
  • Other constitutional principles also appear to operate within – rather than form part of – that order, such as parliamentary sovereignty, the protection of minorities, judicial independence, judicial immunity.

From these abstract aspirations, the Court conjures firm ground (roots), a stable edifice (foundational architecture), and an orderly system (our democratic and constitutional order, in which principles have essential roles and officials have known functions). The metaphors domesticate concepts that otherwise could prove disruptive.

This unwritten structure composed of unwritten elements resembles – reflects? – the familiar institutional structure established by the written components of the Constitution. However, the stronger that resemblance, the stranger the case for unwritten principles. If they can all be found in the constitutional text, then maybe they serve to make the written constitution less familiar, not more.

They certainly alienate laypersons from the Constitution, since they require special knowledge, training, and status to access. Even for initiates, the unwritten principles make constitutional text weird: the text is never just the text.

The “Basic Constitutional Structure”

The standard institutional structure is also more complicated than it may seem, as it harbours a more “basic constitutional structure” that consists only of the most essential elements identified by the Court. 

As the Court wrote in Re Senate Reform: “The Constitution implements a structure of government and must be understood by reference to “the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning”: Secession Reference, at para. 32…These rules and principles of interpretation have led this Court to conclude that the Constitution should be viewed as having an “internal architecture”, or “basic constitutional structure” (¶¶25-26). 

Similarly, Beetz J. wrote in Ontario (Attorney General) v. OPSEU, [1987] 2 SCR 2: “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” (¶151).

Once again, the Court hints at a more sophisticated analysis that permits experts (and aspiring experts) to move beyond a naïve interpretation of constitutional text and access the essence of our constitutional settlement.

The Court has confirmed that the “basic constitutional structure” includes:

• those freely elected legislative bodies;
• the division of powers;
  • Parliament cannot amend the architecture of the Constitution (Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, ¶¶ 9, 120, 130, 133)
• the Supreme Court of Canada (Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21 ¶88); 
• an unelected federal Senate (Re Senate Reform Act, ¶¶3, 58); and
• parliamentary sovereignty (Re An Act, ¶57).

However, that basic structure apparently does not include other familiar features of the overall constitutional settlement, such as:

• the Charter; and
  • in OPSEU, Beetz J. referred to “the political rights guaranteed under the Canadian Charter of Rights and Freedoms, which, of course, gives broader protection to these rights and freedoms than is called for by the structural demands of the Constitution…it remains true that, 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” (¶152).
    • If the Charter exceeds the structural demands of the Constitution, and the structural demands of the Constitution define the basic constitutional structure, then the Charter is not part of that internal architecture: it is a laneway house, not an integral component of the main building.
  • in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, Wilson J. wrote: “It seems to me that it is important to bear in mind that the rights and freedoms set out in the Charter are fundamental to the political structure of Canada and are guaranteed by the Charteras part of the supreme law of our nation” (¶69).
    • Justice Wilson was careful to refer to “the political structure of Canada” rather than the basic constitutional structure, which begs the question of how the two structures differ.
• Indigenous legal orders, aboriginal rights, aboriginal title, and treaty rights, which are consistently discussed in artisanal rather than architectural terms and which the Court has not (yet) identified as part of the “basic structure.”

The Four Constitutional Structures (So Far)

On closer examination, the Court uses two simple structures (internal and institutional) and at least two obscure structures (unwritten principles and the “basic constitutional structure”). The purpose, role, and effect of those hidden structures are unclear, likely evolving, and possibly inconsistent with Court’s own explanations. Further, the possibility of other hidden structures cannot be ruled out ex ante.

Of course, if we subject constitutional principles to enough scrutiny, then we can break them open and catch glimpses of the quantum realm within, which has its own confusing structure.

But even if we stay on the surface of its reasons, the Court’s convoluted metaphors and analyses create a real risk of “structures all the way down”: an Escher sketch with consequences.

The juxtaposition of recent judgments that use these structures can generate awkward questions, such as:

• how can parliamentary sovereignty be both a “fundamental postulate of our constitutional architecture” (Re an Act, ¶57) and one constitutional principle among many (Power, ¶5) subject to procrustean “reconciliation” with other principles?
• what does it mean for the Charter and parliamentary privilege each to be classified as (1) constitutional principles (Power) and (2) constitutional imperatives (Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, ¶28)…especially since in each case they are apparently also subject to “reconciliation”? Once again, what is the relationship between constitutional principles and constitutional imperatives?

Such questions are interesting but operate within the terms and structures established by the Court: they seek to make the Court’s statements more coherent by, among other things, identifying tensions and exploring potential resolutions. This approach takes very seriously what the Court says about the Constitution without thinking hard enough about what the Court does not say or cannot say. It is difficult but necessary to turn that corner. One might even say it is an imperative.