Administrative and Citizen Interpretations of Unwritten Constitutional Principles and Constitutional Silences

Who gets to interpret and articulate unwritten constitutional principles (UCPs), such as the rule of law, democracy, or federalism, or fill constitutional silences in the Canadian constitutional order? In answering that question, we often assume that the key institutional actors are either the courts and Parliament (or both, depending on one’s position). However, such assumptions lead us to exclude both the role of the executive and ordinary citizens from constitutional interpretation. Drawing on Canadian law, this blog post aims to elucidate the way in which citizens articulate UCPs as part of their interactions with the administrative state, and vice-versa. Enabling both administrative decision-makers and citizens to interpret UCPs, I suggest, provides a valuable opportunity for the public to engage with, and breathe life and meaning into, UCPs in the context within which most people are likely to encounter state actors.

Administrative Interpretations of Unwritten Constitutional Principles

Ever since Lalonde v Ontario, administrative actors in Canada have a duty to take UCPs into account as interpretive aids when exercising discretion or interpreting questions of law. In Lalonde, the Commission de restructuration des services de santé closed a hospital that provided healthcare primarily to the minority Francophone community in Ottawa. The court set aside the decision on the grounds that the Commission had not engaged with the UCP of protection for linguistic minorities. The court stated at para 184:

“The Commission failed to pay any attention to the relevant constitutional values, nor did it make any attempt to justify departure from those values on the ground that it was necessary to do so to achieve some other important objective.”

Furthermore, the court was clear that while the Commission was entitled to deference, where decisions impinged on fundamental Canadian constitutional values, the Commission needed to offer a justification for the decision. In this case, the Commission failed to give “serious weight and consideration to the importance of the [the hospital] as an institution to the survival of the Franco-Ontarian minority” (para 187).

The main consequence of Lalonde is that the scope of executive power is ultimately constrained by UCPs. However, a correlated consequence is that executive decision-makers are empowered to engage in an interpretive exercise about what those constitutional principles mean. In other words, executive decision-makers can engage with constitutional principles and demonstrate that engagement via the reasons for their decisions. This empowers administrative decision-makers to fill potential silences in the Constitution and potentially create an internal jurisprudence around constitutional principles. These interpretive choices must also be justified to interested citizens and to the court as part of a review process.

Standard of Review

In Lalonde, the court declined to decide which standard of review would apply to administrative interpretations of UCPs – correctness or reasonableness (at para 186). In correctness review, the court would come to its own conclusion about how UCPs should be applied and interpreted by the administrative decision-maker, whereas in the case of reasonableness review, the court would offer some deference to the decision-maker’s reasons and interpretive choices. It has not been entirely clear since Lalonde whether the correctness or reasonableness standard will be applied to administrative interpretations of UCPs. While on the one hand, the court stated recently in Vavilov at para 17 that constitutional questions will be dealt with on a standard of correctness, the methodology of the Lalonde case, with its focus on deference and justification, is better aligned with reasonableness review.

The Vavilov Framework and The Role of Citizens

As such, if Lalonde-type cases were treated under the banner of post-Vavilov reasonableness review, as I believe they should be, then administrative decision-makers would not only be required to provide reasons that engage with UCPs (as per Lalonde), but where relevant, these reasons would also need to engage with the citizen’s interpretation of those UCPs. Thus, if citizens were to put forward certain interpretive viewpoints about the scope of a particular UCP, then these interpretive viewpoints will also need to feature productively in administrative decisions. Over time, therefore, citizen interpretations will come to affect what those principles mean in certain interpretive contexts. In that sense, we can understand citizens, in consort with administrative decision-makers, as engaging in constitutional decision-making and authoring and articulating the scope and meaning of UCPs.

Perhaps an important thing to note is that while Lalonde-like cases do not happen often, arguably all administrative decision-making implicitly involves the application of two key unwritten principles, namely, parliamentary sovereignty and the rule of law. While administrative decision-makers may not explicitly say they are drawing on these principles when interpreting their enabling statutes, decision-makers must always have in mind legislative intent (a concern of parliamentary sovereignty) and the way in which the decision might impact the individual (a rule of law concern). Decision-makers may also have these principles consciously in mind. For instance, in Moore v Canada (CA IRB), the Immigration and Refugee Board of Canada was asked to determine the extent of the Immigration Appeal Division’s jurisdiction to allow Mr. Moore to remain as a permanent resident in Canada, despite the fact he had acted contrary to his stay order. The Board found that the IAD had no jurisdiction to issue such an exception because s68(4) of the Immigration and Refugee Protection Act 2001 automatically cancelled the stay order. In so deciding, the Board stated that the principle of the rule of law was of “primordial importance” (at para 45) and that the section removed any policy choice from the IAD and “enshrined the principle of the rule of law” (at para 49).  Engagement with the rule of law and parliamentary sovereignty is thus often unavoidable and ubiquitous. Perhaps we should therefore accept that administrative decision-makers do, and indeed must, be entitled to interpret them.

Moreover, given that administrative tribunals are often more flexible and responsive than courts are, administrative tribunals are also arguably a good place for new UCPs to be recognised to “address important questions on which the text of the Constitution is silent” (Toronto City at para 56). Individuals could assist in filling those constitutional silences by advocating for new constitutional principles to be recognised by tribunals. Similarly, tribunals could informally develop such principles to assist them in constructing the purposes of their statutory missions. Potential principles that come to mind include ecological sustainability, reconciliation with Indigenous peoples, equality and multiculturalism or the principle of universal healthcare.

Challenges & Critiques

Some critics, particularly those critical of the Doré framework, may feel uncomfortable with a similar framework being extended to UCPs, and believe instead that correctness review should apply to administrative interpretations of UCPs. As noted above, in Vavilov the court found that constitutional questions should be reviewed on a standard of correctness. The court said at para 53 this is because i) the rule of law requires “a final and determinate answer from the courts” and ii) it is the role of the judiciary to interpret the Constitution.

However, according to the Supreme Court in Toronto City at para 59, UCPs are “nebulous” and “highly abstract,” arguably making it very difficult for courts to provide one final and determinate answer to a question involving a UCP. Moreover, unlike interpreting certain sections of the Constitution, which perhaps requires knowledge of jurisprudence and a theory of constitutional interpretation, unwritten principles are partially “principles of political morality” (Toronto City at para 49) and may therefore legitimately be interpreted by the democratic branches of government. The abstract and political nature of UCPs is why the majority in Toronto City suggested that courts ought to take a step back from interpreting UCPs, arguing these issues are best left to the “ballot box” (para 59). While administrative decision-makers are not elected via the ballot box, they are part of the executive branch and are tasked with implementing policy. They are also a forum of democratic accountability because the culture of justification presupposed by the Vavilov framework provides a valuable opportunity for citizens to engage with UCPs. Furthermore, in a diverse society, perhaps we do not want one final and determinate interpretation of a UCP or one final view as to whether a UCP should be recognised or not.  Citizens may hold different, yet valid, understandings of core constitutional values, and administrative decision-makers will be able to adapt and apply those different meanings in an ever-changing world more expeditiously than courts.

Conclusion

To summarize, administrative decision-makers in Canada are both constrained by, and empowered to engage with, UCPs. If those interpretations were reviewed on a standard of reasonableness, as I contend they ought to be, citizens would likewise be empowered to articulate and interpret UCPs and see their interpretations figure productively in the decision-maker’s reasons. A concluding thought may be that the foregoing analysis suggests not only that the legal and democratic authority of administrative decision-makers emerges via a process of public justification (as stated in Vavilov), but also that the constitutional legitimacy of administrative decision-makers rests upon public justification. Administrative decisions would be imbued with constitutional legitimacy, not because they align with the court’s idea of what a UCP means (as in correctness review), but because a particular interpretation of those principles has been justified by officials through a responsive and relational reason-giving process in collaboration with citizens. In my view, it is therefore important for the legal, democratic, and constitutional authority of administrative decision-makers that citizens are administrators engage in a dialogue about the scope and application of fundamental constitutional values.