The Salience of “Writtenness” and “Unwrittenness” as Constitutional Categories in Canada

Canada’s Constitution has always been characterized by a duality of written and unwritten. In this respect, it sits somewhere between the paradigms of a fully codified, written constitution on the one hand, and the UK’s uncodified and partially unwritten constitution on the other. Defining the written and unwritten elements of the Canadian Constitution is no easy matter, however. For one, when scholars use the terms “written” and “unwritten,” they are not always employing the terms literally, or at least not fully so. As Canadian scholar Mark Walters has argued, “the expressions ‘written law’ and ‘un-written law’ … are simply metaphors for two basic ideas about what law is—law-as-sovereign-will and law-as-reason—both of which are essential for legitimate constitutional order.” While Walters’ focus is on written and unwritten constitutional law and not on written and unwritten constitutionalism in their fullest sense (i.e. both the legal and political constitutions), his statement emphasizes the point that in Canada, these terms must be understood conceptually as well as descriptively. When used in the first way, “writtenness” and “unwrittenness” invoke clusters of constitutional meaning and practice that extend beyond whether a rule or norm is written or not.

A second reason why the written and unwritten elements of Canada’s constitution can be difficult to describe is that the categories of “written” and “unwritten” are not easily delineated. An example serves to illustrate the point. Constitutional conventions are unwritten political rules that govern the conduct of public officials. These rules are alluded to in the preamble of the Constitution Act, 1867, which says that Canada is to have a constitution “similar in principle to that of the United Kingdom.” Though technically unwritten and non-legal, in other words, conventions partly find their foothold in constitutional text. This example also serves to illustrate the conceptual point made above. Despite the partially textual basis for constitutional conventions, they are considered to be firmly unwritten in nature. Some additional explanation is therefore required for why conventions should be characterized in this way. That explanation is to be found at the level of the conceptual or the metaphorical rather than in the bare fact of “writtenness” or “unwrittenness”.

In this blog post, I attempt to move beyond the challenge of explicating the categories of written and unwritten to explain why they matter for our understanding of Canada’s constitution. I argue that these concepts are significant in at least five ways. First, they are sometimes used to describe various parts of the constitution. Second, they connote different ways of “doing” constitutional law and politics. Third, they have important implications for institutions, and fourth, for constitutional amendment. And fifth, debates around “writtenness” and “unwrittenness” can have a political or ideological valence, in the sense that a scholar’s stance on unwritten constitutionalism often tracks their position in wider constitutional debates.

Description

I begin with the first point. Although the terms “written” and “unwritten” are often used in their more complex, conceptual sense, they are sometimes employed more straightforwardly to describe various parts of the constitution. Using these terms in the more straightforward way, we might say that today, the primary written elements of Canada’s constitution are the Constitution Act, 1867, the Constitution Act, 1982 (which includes the Canadian Charter of Rights and Freedoms) and its Schedules; treaties negotiated between the Crown and Indigenous peoples; and a small number of statutes deemed constitutional by the courts. The textual aspects of the constitution establish the federal branches of state, divide powers between the federal and provincial orders of government, create individual rights, affirm the existing Aboriginal and treaty rights of Indigenous peoples, and set the parameters for constitutional amendment.

The constitution’s unwritten elements are also rich and several. They include constitutional conventions; prerogative powers, which are the “residual” powers exercised by the modern executive which were once the discretionary powers of the monarch; common law rights articulated by judges prior to the entrenchment of the Canadian Charter of Rights and Freedoms; Charter values, being the values that animate individual Charter rights; and constitutional principles and constitutional architecture, which are legal principles and structures said to underpin the written constitution. Understandably, one cannot purport to speak about “the Canadian constitution” without referring to all of these elements.

Not all scholars would agree with the descriptive account I have just offered. They might point out that government documents describing constitutional conventions are written, for example, or that judicial decisions on constitutional matter also take written form. In my view, these documents are better understood as secondary in nature, in the sense that they describe aspects of the constitution that may themselves be written or unwritten. Even so, the above attempt at categorization should be treated as provisional and open to debate.

Method

Second, “writtenness” and “unwrittenness” have different implications for constitutional method. As Walters’ quote above suggestions, courts are engaged in somewhat different tasks when they interpret constitutional text versus when they elaborate or apply unwritten constitutional rules. When they are doing the former, they are giving life to a meaning that, while perhaps not fully captured by text, is nonetheless anchored in it. When they enforce the unwritten legal constitution, by contrast, they are often giving effect to the constitution’s deeper logic; to those principles without which the constitution would not be what it is. Se-shauna Wheatle has argued that from a comparative perspective, there is considerable value in moving beyond discussions of the “substance” of unwritten constitutionalism to consider the distinctive modes of judicial reasoning it produces. The same can be said about political actors giving effect to the political aspects of the unwritten constitution, which also call for distinctive ways of engaging with constitutional rules.

Institutions

Third, writtenness and unwrittenness have distinctive implications for institutions. This point is connected to the perceived authority and legitimacy of different parts of the constitution. In broad strokes, Canada’s written constitution derives its authority from the fact of having been entrenched as supreme law through a process that engaged elected representatives at the federal and provincial levels. Unwritten constitutional law, by contrast, derives its authority from the nature of common law reasoning. Given that the written constitution enjoys strong authority and legitimacy by virtue of the process that led to its entrenchment, and explicitly contemplates judicial review, courts have a firm foothold from which to enforce it. How exactly this review should proceed is of course a matter about which there will be vigorous debate, but the basic point still holds.

Because unwritten constitutional law does not enjoy the authority and legitimacy that flows from a process of writing and entrenchment, its enforcement by courts will always be more controversial. Now, academics who strongly press this argument often fail to acknowledge that courts have their own sources of legitimacy, most notably their commitment to upholding the rule of law. But even scholars who believe strongly in the inherent legitimacy of common law courts tend to acknowledge that unwritten constitutional law should be developed and applied cautiously, and in a way that is qualitatively different from written constitutional law.

Things are somewhat more complicated when it comes to the constitutional conventions, mainly because it is difficult to distinguish the institutional implications that flow from “unwrittenness” from those that derive from these rules being political rather than legal in character. Constitutional conventions derive their authority from the fact that they are typically the product of accumulated practice, and underpinned by a rationale grounded in principle. They are understood as being the preserve of political actors rather than courts. Generally speaking, they are more controversial when in the hands of the executive. While there is a developing body of scholarship on the degree to which courts end up enforcing conventions, the official position is that the courts will recognize but not enforce them. This means – and this is an institutional implication – that there is no judicial oversight of political decision-making in respect of constitutional conventions. There is likely much more to be said here, particularly as it relates to efforts in other Westminster jurisdictions to articulate in writing – but not entrench – these conventions.

Amendment

“Writtenness” and “unwrittenness” also have important implications for the modalities of constitutional change. It is uncontroversial that the written constitution can only be amended by following the formula set out in Part V of the Constitution Act, 1982. These rules appear to apply to some aspects of the unwritten constitution, such as the constitution’s architecture, but not to others. Constitutional conventions, for example, seem to be clearly excluded. In the same way, it would be unusual to regard common law rights or unwritten constitutional principles as being subject to the amending formula, owing to their sources and nature. It should be noted, however, that all of these issues remains largely unexplored in Canada. Moreover, it is contentious to claim that a significant portion of Canada’s constitution lies beyond the reach of the amending formula.

Politics and Ideology

Finally, debates about writtenness and unwrittenness can have a political valence that tracks wider debates about the constitution and its interpretation. For example, those who would prefer to see minimal restraints on the legislature tend to argue against the legitimacy of unwritten constitutional law, on the grounds that it is judge-made and represents an unauthorized expansion of judicial power. These same scholars generally take less issue with political enforcement of the unwritten constitution, at least when it is the legislature that is engaged in enforcement.

On the other side of things, there are academics who would like to see courts embrace a robust jurisprudence of unwritten constitutional principles or common law rights in cases where the constitution’s text (especially the Charter’s text) does not provide an obvious hook for their arguments. There are also a range of intermediate positions, of course, including those of scholars who disapprove of the trajectory the Charter jurisprudence has taken and who advocate for certain common law rights to be revived on the theory that they offer stronger protection than the Charter with its balancing of interests. These scholars seek to constrain the effects of the modern constitution by emphasizing an older, pre-Charter approach to rights.

Hiding beneath the more technical debates about unwrittenness, then, are broader debates – debates we are all familiar with – about what the constitution is for, the extent to which it should constrain democratic choice, and the role of courts in the constitutional enterprise. In the recent case of Toronto (City) v Ontario (Attorney General), a majority of the Supreme Court of Canada held in obiter that unwritten constitutional principles, though part of Canada’s constitutional law, are incapable of invalidating legislation. Instead, they may only be used as aids to interpretation and to fill gaps in the written constitution as required. Four judges, writing in dissent, opposed this characterization of unwritten principles, re-affirming that unwritten constitutional principles have “full legal force,” to use language employed in the Secession Reference. One way of grappling with these two opinions is to examine the very different visions of institutional roles that underpin them.

Having a clearer sense of why and how writtenness and unwrittenness are salient constitutional categories has clear benefits for the comparative exercise. But it is also important for scholars of Canadian constitutional law, who are trying to make sense of their own constitution and of recent developments that have thrust the unwritten aspects of the constitution to greater prominence. For this reason, there remains important work to be done to reckon with writtenness and unwrittenness as overarching constitutional categories.

The author is grateful to Peter Oliver, Se-shauna Wheatle and Philippe Lagassé  for their suggestions and comments on this blog post.