Constitution - Unwritten. Poorkid Investments Inc. v. Ontario (Solicitor General)
In Poorkid Investments Inc. v. Ontario (Solicitor General) (Ont CA, 2023) the Court of Appeal expounds on the 'rule of law', here in a class action alleging 'under-policing' [my term] with respect to indigenous protests near Caledonia, Ontario:
The nature of the rule of law. Toronto (City) v. Ontario (Attorney General)
 The rule of law is a venerable principle of political philosophy – a complex, multifaceted ideal that informs legislative and judicial processes. It has ancient origins and has been developed in a tradition running through scholars such as Aristotle, Thomas Aquinas, Sir William Blackstone, and A.V. Dicey. The rule of law is the subject of a large and growing body of contemporary academic scholarship: see, for example, Kristen Rundle, Revisiting the Rule of Law (New York: Cambridge University Press, 2022); Frederick Schauer, “Lon Fuller and the Rule of Law” (2020) University of Virginia School of Law Public Law and Legal Theory Paper Series 2020-46; John Tasioulas, “The Rule of Law” in Tasioulas, ed., The Cambridge Companion to the Philosophy of Law (Cambridge: Cambridge University Press, 2019); and Brian Z. Tamanaha, “The History and Elements of the Rule of Law” (2012) Sing. J.L.S. 232.
 To say that the rule of law is respected in a legal order is to make a claim about the health of that legal order – that it is functioning in accordance with a range of criteria the concept may be understood as embracing. Lon Fuller famously offered a list of eight rule of law principles he described as the “inner morality of law” in The Morality of Law, rev’d edn. (New Haven: Yale University Press, 1969), at pp. 33-38. According to Fuller, the law should be: 1) general in nature; 2) publicized; 3) prospective in operation; 4) understandable; 5) non-contradictory; 6) possible to comply with; 7) relatively constant; and 8) congruent with its administration. John Finnis offers a similar account in Natural Law and Natural Rights, 2nd ed. (Oxford: Oxford University Press, 2011), at pp. 270-71: “A legal system exemplifies the Rule of Law to the extent … that (i) its rules are prospective, not retroactive, and (ii) are not in any other way impossible to comply with; that (iii) its rules are promulgated, (iv) clear, and (v) coherent one with another; that (vi) its rules are sufficiently stable to allow people to be guided by their knowledge of the content of the rules; that (vii) the making of decrees and orders applicable to relatively limited situations is guided by rules that are promulgated, clear, stable, and relatively general; and that (viii) those people who have authority to make, administer, and apply the rules in an official capacity (a) are accountable for their compliance with rules applicable to their performance and (b) do actually administer the law consistently and in accordance with its tenor.”
 Contemporary accounts of the rule of law typically share a number of these commitments but may differ in important respects. This is to be expected: good faith disagreement about the essential nature of the rule of law flourishes in any democratic order that aspires to the ideal: see Jeremy Waldron, “The Rule of Law as an Essentially Contested Concept” (2021) NYU School of Law Public Law and Legal Theory Research Paper Series, Working Paper No. 21-15. The rule of law has always served as a constitutional lodestar for lawmakers – an ideal to be aspired to, rather than a canonical set of rules that is subject to enforcement.
 The Supreme Court outlined the elements of the rule of law for adjudication purposes in the Re Manitoba Language Rights, 1985 CanLII 33 (SCC),  1 S.C.R. 721 and the Reference re Secession of Quebec, 1998 CanLII 793 (SCC),  2 S.C.R. 217. Those elements are: 1) the supremacy of the law over the acts of government and private persons; 2) the creation and maintenance of an actual order of positive laws that preserves and embodies the more general principle of normative order; and 3) the requirement that the relationship between the state and the individual be regulated by law.
 These elements focus on the nature and purpose of the law rather than its substance, and are not independently enforceable in legal proceedings. As Wagner C.J. and Brown J., writing for a majority of the Supreme Court, explained in Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, 462 D.L.R. (4th) 1, at para. 58, to enforce unwritten constitutional principles would trespass on the legislature’s authority to amend the Constitution, raise concerns about the legitimacy of judicial review, and distort the separation of powers. Fundamentally, it would be at odds with the settlement reflected in the text of the Constitution itself. Thus, they stated the conclusion categorically: “unwritten constitutional principles cannot serve as bases for invalidating legislation”: Toronto (City), at para. 63. Nothing could be clearer.
 There is nothing new or surprising in this. The Court reached the same conclusion when considering the unwritten principle of the rule of law in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49,  2 S.C.R. 473, at paras. 59-60. Nevertheless, it is clear that the elements of rule of law identified by the Court may be invoked both as an interpretive aid and to help develop necessary structural constitutional doctrines: Toronto (City), at paras. 55-56. The majority in Toronto (City) cites Trial Lawyers as an example of the rule of law informing a purposive interpretation of s. 96 of the Constitution Act, at para. 55.
 However, two distinct difficulties attend the use of the rule of law as an interpretive aid in adjudication. The first is the need to respect the scope of the elements of the rule of law identified by the Court. The second is the difficulty of maintaining the distinction between the use of rule of law as an interpretive aid, which is legitimate, and direct enforcement of the rule of law to invalidate legislation, which is not. The application judge’s decision illustrates both difficulties.
“Meaningful access to the court” as described by the application judge is not an element of the rule of law
 It seems reasonable that there should be “meaningful access to the court in the sense of ensuring that a litigant’s claim is determined on its merits, including the right to present material evidence”, but the application judge’s “meaningful access” concept is not required by the rule of law on that account, nor does it engage the aspect of the rule of law dealing with physical access to courts set out in B.C.G.E.U. v. British Columbia (Attorney General), 1988 CanLII 3 (SCC),  2 S.C.R. 214.
 The rule of law is not a repository of all things considered desirable in a legal system. None of the elements of the rule of law recognized in Re Manitoba Language Rights and Reference re Secession of Quebec speak directly to the terms of legislation: Imperial Tobacco, at para. 59.
 Indeed, it is noteworthy that in Imperial Tobacco the Supreme Court rejected several “fair civil trial” features asserted as protected by the rule of law in upholding the constitutionality of British Columbia legislation that went much further than s. 17 of the CLPA: it authorized actions by the provincial government against tobacco product manufacturers for the recovery of health care expenses incurred by the government, changed evidentiary requirements, permitted the government to establish aggregate claims, reversed the burden of proof in several respects, and operated retrospectively. The legislation changed the general rules of civil litigation considerably, but, as the Supreme Court stated, there is no constitutional right to have one’s civil trial governed by customary rules of civil procedure and evidence: Imperial Tobacco, at para. 76. That conclusion applies with equal force in this case.
The rule of law as an interpretive aid
 The written aspects of the Constitution are carefully crafted, reflecting constitutional settlements that courts must respect. Unwritten constitutional principles may provide interpretive guidance for understanding the nature of particular constitutional settlements, but that guidance is ultimately limited by constitutional text and design. Courts cannot rely on unwritten constitutional principles to alter or supplement the text of the Constitution; constitutional text has “primordial” importance and can be changed only by constitutional amendment: Quebec (Attorney General) v. 9147-0732 Québec Inc., 2020 SCC 32, 451 D.L.R. (4th) 367, at para. 11; Toronto (City), at para. 65.
In Toronto (City) v. Ontario (Attorney General) (SCC, 2021) the Supreme Court of Canada considers the Canadian unwritten constitution:
B. DemocracyThe court continues to review case law supportive of these conclusions at paras 64-75.
 The second issue on appeal is whether the impugned provisions of the Act are unconstitutional for violating the unwritten constitutional principle of democracy. Specifically, the City argues that the change in ward structure violated the unwritten principle of democracy by denying voters effective representation and disrupting the election process (A.F., at para. 105). It therefore asks the Court to use the democratic principle as a basis for invalidating otherwise valid provincial legislation. It says this is made possible by drawing from this Court’s s. 3 jurisprudence and from the concept of effective representation, and by viewing the principle as limiting provincial competence under s. 92(8). Conversely, and echoing the Court of Appeal on this point, the Attorney General of Ontario says that the unwritten constitutional principle of democracy cannot be used as a device for invalidating legislation, independently of written constitutional provisions and the law governing them. For the reasons that follow, the Attorney General is correct.
(1) Interpretive and Gap‑Filling Roles of Unwritten Constitutional Principles
 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 (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC),  3 S.C.R. 3, at para. 93; Reference re Secession of Quebec, 1998 CanLII 793 (SCC),  2 S.C.R. 217, at paras. 50‑51). These principles, such as democracy and the rule of law, “infuse our Constitution” (Secession Reference, at para. 50). Although not recorded outside of “oblique reference[s]” in the preamble to the Constitution Act, 1867 and to the Constitution Act, 1982 (para. 51), these principles are “foundational” (para. 49), without which “it would be impossible to conceive of our constitutional structure” (para. 51). These principles have “full legal force” and may give rise to substantive legal obligations (para. 54, quoting Reference re Resolution to Amend the Constitution, 1981 CanLII 25 (SCC),  1 S.C.R. 753, at p. 845). “[L]ike all principles of political morality, [they] can guide and constrain the decision‑making of the executive and legislative branches” (C.A. reasons, at para. 84, citing British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49,  2 S.C.R. 473, at para. 52).
 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. Our colleague Abella J. seizes upon a statement from a dissenting opinion in Reference re Resolution to Amend the Constitution to support the proposition that “full legal force” necessarily includes the power to invalidate legislation. But the complete passage in Reference re Resolution to Amend the Constitution, and the jurisprudence cited therein, demonstrates that Martland and Ritchie JJ. are discussing federalism ⸺ and, while specific aspects of federalism may be unwritten and judicially developed, it is indisputable that federalism has a strong textual basis. Nor does our colleague’s reliance upon MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC),  4 S.C.R. 725 (at para. 176), support the capacity of unwritten constitutional principles to invalidate legislation, since the finding there was that granting exclusive jurisdiction to the youth court would infringe ss. 96 to 101 and 129 of the Constitution Act, 1867. Regardless, any uncertainty on the question of whether unwritten constitutional principles may invalidate legislation that may have remained after the Reference re Resolution to Amend the Constitution and the Secession Reference was, as we will explain, fully put to rest in Imperial Tobacco.
 Further, the authorities she cites as “recogniz[ing] that unwritten constitutional principles have full legal force and can serve as substantive limitations on all branches of government” (para. 166) do not support the proposition that unwritten constitutional principles can be applied to invalidate legislation. Indeed, it is quite the contrary — for example, in R. (on the application of Miller) v. Prime Minister,  UKSC 41,  A.C. 373, at para. 41, the Supreme Court of the United Kingdom stated that the constitutional principle of parliamentary sovereignty means that legislation itself (“laws enacted by the Crown in Parliament”), under the Constitution of the United Kingdom, remains “the supreme form of law”. While courts in the United Kingdom may find primary legislation to be inconsistent with the European Convention on Human Rights, 213 U.N.T.S. 221, they may only issue a declaration of incompatibility (Human Rights Act 1998 (U.K.), 1998, c. 42, s. 4); they have not used unwritten constitutional principles to invalidate legislation.
 Our colleague is concerned about the “rare case” where “legislation [that] elides the reach of any express constitutional provision . . . is fundamentally at odds with our Constitution’s ‘internal architecture’ or ‘basic constitutional structure’” and recourse must be had to unwritten constitutional principles (para. 170, quoting Secession Reference, at para. 50, and OPSEU v. Ontario (Attorney General), 1987 CanLII 71 (SCC),  2 S.C.R. 2, at p. 57). But it is inconceivable that legislation which is repugnant to our “basic constitutional structure” would not infringe the Constitution itself. And that structure, recorded in the Constitution’s text (as we discuss below), is interpreted with the aid of unwritten constitutional principles. This is clear from the context of Martland and Ritchie JJ.’s statement that unwritten principles have “full legal force in the sense of being employed to strike down legislative enactments” (Reference re Resolution to Amend the Constitution, at p. 845). As noted above, that case was about federalism, as was the jurisprudence cited in support of their statement; Martland and Ritchie JJ. were describing the “constitutional requirements that are derived from the federal character of Canada’s Constitution” (pp. 844-45 (emphasis added)). And this is precisely the point ⸺ while the specific aspects of federalism at issue there may not have been found in the express terms of the Constitution, federalism is.
 To explain, federalism is fully enshrined in the structure of our Constitution, because it is enshrined in the text that is constitutive thereof ⸺ particularly, but not exclusively, in ss. 91 and 92 of the Constitution Act, 1867. Structures are not comprised of unattached externalities; they are embodiments of their constituent, conjoined parts. The structure of our Constitution is identified by way of its actual provisions, recorded in its text. This is why our colleague can offer no example of legislation that would undermine the structure of the Constitution that cannot be addressed as we propose, which is via purposive textual interpretation. It is also why, once “constitutional structure” is properly understood, it becomes clear that, when our colleague invokes “constitutional structure”, she is in substance inviting judicial invalidation of legislation in a manner that is wholly untethered from that structure.
 Ultimately, what “full legal force” means is dependent on the particular context. Any legal instrument or device, such as a contract or a will or a rule, has “full legal force” within its proper ambit. Our colleague’s position — that because unwritten constitutional principles have “full legal force”, they must necessarily be capable of invalidating legislation — assumes the answer to the preliminary but essential question: what is the “full legal force” of unwritten constitutional principles? And in our view, because they are unwritten, their “full legal force” is realized not in supplementing the written text of our Constitution as “provisions of the Constitution” with which no law may be inconsistent and remain of “force or effect” under s. 52(1) of the Constitution Act, 1982. Unwritten constitutional principles are not “provisions of the Constitution”. Their legal force lies in their representation of general principles within which our constitutional order operates and, therefore, by which the Constitution’s written terms — its provisions — are to be given effect. In practical terms, this means that unwritten constitutional principles may assist courts in only two distinct but related ways.
 First, they may be used in the interpretation of constitutional provisions. Indeed, that is the “full legal force” that this Court described in Secession Reference (para. 54). In this way, the unwritten constitutional principles of judicial independence and the rule of law have aided in the interpretation of ss. 96 to 100 of the Constitution Act, 1867, which have come to safeguard the core jurisdiction of the courts which fall within the scope of those provisions (Provincial Court Judges Reference, at paras. 88‑89; MacMillan Bloedel, at paras. 10‑11 and 27‑28; Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59,  3 S.C.R. 31, at paras. 29‑33). When applied to Charter rights, unwritten principles assist with purposive interpretation, informing “the character and the larger objects of the Charter itself, . . . the language chosen to articulate the specific right or freedom, [and] the historical origins of the concepts enshrined” (Quebec (Attorney General), at para. 7, quoting Big M Drug Mart Ltd., at p. 344; see also R. v. Poulin, 2019 SCC 47, at para. 32).
 Secondly, and relatedly, unwritten principles can be used to develop structural doctrines unstated in the written Constitution per se, but necessary to the coherence of, and flowing by implication from, its architecture. In this way, structural doctrines can fill gaps and address important questions on which the text of the Constitution is silent, such as the doctrine of full faith and credit (Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC),  3 S.C.R. 1077; Hunt v. T&N plc, 1993 CanLII 43 (SCC),  4 S.C.R. 289); the doctrine of paramountcy (Huson v. The Township of South Norwich (1895), 1895 CanLII 1 (SCC), 24 S.C.R. 145); the remedy of suspended declarations of invalidity (Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC),  1 S.C.R. 721); and the obligations to negotiate that would follow a declaration of secession by a province (Secession Reference).
 Neither of these functions support the proposition advanced by the City that the force of unwritten principles extends to invalidating legislation. Indeed, the truth of the matter is to the contrary. Attempts to apply unwritten constitutional principles in such a manner as an independent basis to invalidate legislation, whether alone or in combination, suffer from a normative and a practical deficiency, each related to the other, and each fatal on its own.
 First, such attempts trespass into legislative authority to amend the Constitution, thereby raising fundamental concerns about the legitimacy of judicial review and distorting the separation of powers (Imperial Tobacco, at paras. 53‑54, 60 and 64‑67; J. Leclair, “Canada’s Unfathomable Unwritten Constitutional Principles” (2002), 27 Queen’s L.J. 389, at pp. 427‑32). Our colleague’s approach, which invites the use of unwritten constitutional principles in a manner that is wholly untethered from the text, ignores this fundamental concern.
 Secondly, unwritten constitutional principles are “highly abstract” and “[u]nlike the rights enumerated in the Charter — rights whose textual formulations were debated, refined and ultimately resolved by the committees and legislative assemblies entrusted with constitution‑making authority — the concep[t] of democracy . . . ha[s] no canonical formulatio[n]” (C.A. reasons, at para. 85). Unlike the written text of the Constitution, then, which “promotes legal certainty and predictability” in the exercise of judicial review (Secession Reference, at para. 53), the nebulous nature of the unwritten principles makes them susceptible to be interpreted so as to “render many of our written constitutional rights redundant and, in doing so, undermine the delimitation of those rights chosen by our constitutional framers” (Imperial Tobacco, at para. 65). Accordingly, there is good reason to insist that “protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box” (para. 66). In our view, this statement should be understood as covering all possible bases for claims of right (i.e., “unjust or unfair” or otherwise normatively deficient).
 We add this. Were a court to rely on unwritten constitutional principles, in whole or in part, to invalidate legislation, the consequences of this judicial error would be of particular significance given two provisions of our Charter. First, s. 33 preserves a limited right of legislative override. Where, therefore, a court invalidates legislation using s. 2(b) of the Charter, the legislature may give continued effect to its understanding of what the Constitution requires by invoking s. 33 and by meeting its stated conditions (D. Newman, “Canada’s Notwithstanding Clause, Dialogue, and Constitutional Identities”, in G. Sigalet, G. Webber and R. Dixon, eds., Constitutional Dialogue: Rights, Democracy, Institutions (2019), 209, at p. 232). Were, however, a court to rely not on s. 2(b) but instead upon an unwritten constitutional principle to invalidate legislation, this undeniable aspect of the constitutional bargain would effectively be undone, since s. 33 applies to permit legislation to operate “notwithstanding a provision included in section 2 or sections 7 to 15” only. Secondly, s. 1 provides a basis for the state to justify limits on “the rights and freedoms set out” in the Charter. Unwritten constitutional principles, being unwritten, are not “set out” in the Charter. To find, therefore, that they can ground a constitutional violation would afford the state no corresponding justificatory mechanism.
 Our colleague says that the application of s. 33 “is not directly before us” (para. 182). As the City has advanced its claim on the basis of s. 2(b), coupled with the unwritten principle of democracy, the prospect of circumventing s. 33’s application to the invalidation of legislation under s. 2(b) by recourse to unwritten constitutional principles is indeed squarely before us.
 We note an important caveat to the foregoing. The unwritten constitutional principle of the honour of the Crown is sui generis. As correctly noted in submissions of the interveners the Métis Nation of Ontario and the Métis Nation of Alberta, the honour of the Crown arises from the assertion of Crown sovereignty over pre‑existing Aboriginal societies (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73,  3 S.C.R. 511, at para. 32), and from the unique relationship between the Crown and Indigenous peoples (Guerin v. The Queen, 1984 CanLII 25 (SCC),  2 S.C.R. 335, at p. 385). We need not decide here whether the principle is capable of grounding the constitutional invalidation of legislation, but if it is, it is unique in this regard.
 In sum, and contrary to the submissions of the City, unwritten constitutional principles cannot serve as bases for invalidating legislation. A careful review of the Court’s jurisprudence supports this conclusion.