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In recent years, unwritten constitutional principles often find their place in Canadian constitutional law via their supposed foothold in the part of the preamble to the Constitution Act, 1867 that refers to “a Constitution similar in Principle to that of the United Kingdom”. Principles such as judicial independence, democracy, federalism, constitutionalism and the rule of law, and protection of minorities have been derived from the preamble. This article looks through over a hundred years of Supreme Court of Canada case law in order to determine what that preambular phrase has meant over time. It turns out that in the years immediately after 1867, it referred to what we now call political constitutionalism. A hundred or so years later, this same passage came to be associated with legal constitutionalism, though the Court has more recently backed away from the fullest implications of that approach. This article proposes a reading of the preamble and constitutional principles that is consistent with recent Supreme Court of Canada case law and defensible given current jurisprudential trends. That reading gives due regard to the traditional meaning of the rule of law all the while acknowledging that there are genuinely hard cases (particularly prevalent at the Supreme Court level) where neither rules nor principles provide clear answers. In those circumstances, respect for the rule of law requires as much wisdom and judgement as it does application of more prosaic legal skills. This article therefore recommends what is here referred to as a “sustainable jurisprudence” that offers an essential bridge between by now orthodox Dworkinian principle-based reasoning and contextual studies more commonly found in socio-legal, feminist, and other critical literature.

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Pal, M. (2019). The Unwritten Principle of Democracy. McGill Law Journal / Revue de Droit de McGill, 65(2), 269–303. https://doi.org/10.7202/1075517ar

This article considers the content of the unwritten principle of democracy and its potential relevance in Canadian constitutional interpretation. The unwritten principles of federalism, the rule of law and constitutionalism, democracy, and the protection of minorities set out by the Supreme Court of Canada in the Secession Reference have received extensive academic attention. Much yet remains unknown, however, about the democracy principle. This article argues that we should interpret the unwritten principle as embodying a “thin” or procedural account of democracy tied to meaningful participation, rather than a “thick” version imposing specific outcomes or broader obligations. I argue that whatever the weight of a “thick” account of democracy, a “thin” understanding is preferable for filling in the content of a constitutional principle that has legal force. The central critiques of the use of unwritten principles in constitutional interpretation are 1) that they lack legitimacy and 2) that they are incoherent in relation to one another. Operationalizing a thin version of democracy in constitutional interpretation responds better to the claims that the unwritten principles lack legitimacy or are incoherent. A thin account still permits the unwritten principle to carry out its functional role in constitutional interpretation, such as enabling courts to fill in gaps in the text or to engage in structural reasoning. The article considers the implications of this approach for referendums and municipal elections.

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Siegel, D. (2009). Ontario. In A. Sancton, R. A. Young, & Institute of Public Administration of Canada (Eds.), Foundations of governance: municipal government in Canada’s provinces (p. 20). University of Toronto Press.

Weinrib, J. (2009). What is the Purpose of Freedom of Expression Senior Board Notes, Comments and Reviews. University of Toronto Faculty of Law Review, 67(1), 165–190. https://heinonline.org/HOL/P?h=hein.journals/utflr67&i=159

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Rowe, M., & Deplanche, N. (2020). Canada’s Unwritten Constitutional Order: Conventions and Structural Analysis. Canadian Bar Review, 98(3), 430–448. https://heinonline.org/HOL/P?h=hein.journals/canbarev98&i=420

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