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The rule of unwritten law: a cautious critique of Charkaoui V. Canada.


Charkaoui v. Canada (Citizenship and Immigration) (1) is the Supreme Court of Canada's most important decision to address the tension between constitutional rights and the interests of national security since the terrorist attacks of September 11, 2001. The case concerned provisions of the Immigration and Refugee Protection Act, (2) which allowed for a foreign national to be designated under a "security certificate" as inadmissible to Canada and detained (with a view to deportation) on the grounds that she poses a risk to national security. The Court held that the IRPA's judicial review procedures did not sufficiently protect the claimants' procedural rights under the Charter of Rights and Freedoms (3) and that these violations could not be justified as reasonably connected and proportionate to the objectives of national security.

But Charkaoui also raised questions about the unwritten constitutional principle of the rule of law. Under the IRPA, a determination by the executive that an individual was inadmissible on national security grounds was subject to a review for reasonableness by a designated judge of the Federal Court. The IRPA explicitly precluded any appeal from the judge's determination. (4) At the Supreme Court Mr. Charkaoui argued that the lack of any right of appeal violated the unwritten principle of the rule of law. (5) This argument, however, was not successful and it received considerably less attention in the Court's decision than those arguments based on written constitutional law.

For reasons that I hope to make clear, I think the Court was correct to dismiss the argument that the unwritten principle of the rule of law require a right to an appeal. But because so little is said about the reasoning that justifies this conclusion, Charkaoui perpetuates potential confusions in the Court's jurisprudence about the nature of unwritten constitutional principles: how they are to be identified; what they mean; and when, if ever, they can be used to invalidate legislation.

These questions are particularly vexing with respect to the unwritten principle of the rule of law. The rule of law is itself subject to a variety of divergent interpretations, so much so that it has been described as "an essentially contested concept." (6) While there may be near universal agreement in Canada that the rule of law is a "constitutional value," its concrete implications remain controversial. (7) Given controversies of this kind, how are judges to make use of unwritten constitutional principles without it seeming as though they are merely imposing their own political or philosophical preferences?

In what follows, I argue that unwritten constitutional principles can be legitimately employed only if their meaning is explicitly determined by the parameters set by the legal tradition. As I will explain, in all likelihood this approach cannot support the use of the rule of law as an independent basis for impugning the validity of legislation. However, I hope to show that even on this rather disciplined and conservative account, the rule of law can make a difference to how we understand and resolve the tension between constitutional commitments and national security interests. Specifically, I argue that an immanent reading of the rule of law shows the value of "reasonable justification" to be integral to Canada's rule-of-law tradition. Had the Court in Charkaoui given this value greater weight, it might have been more alive to the way in which the IRPA singles out noncitizens, effectively subjecting them to de facto indefinite detention under the pretext of immigration purposes.


The notion of unwritten constitutional principles is not altogether new in the Canadian constitutional tradition, (8) but the force of unwritten constitutional principles received increased recognition from the Supreme Court of Canada in several cases in the 1990s. (9) These cases were novel insofar as they suggested the existence of unwritten constitutional principles, "invested with a powerful normative force," that could be "binding upon both courts and governments." (10) In Reference re Secession of Quebec, the Court described these principles as "the vital unstated assumptions" behind the written text of the Constitution, (11) capable of filling "gaps" in the text itself. (12) Included among these principles was the rule of law. The Court described the rule of law as a constitutional principle "of profound constitutional and political significance," requiring at least the creation and maintenance of an actual order of positive laws, that the law be supreme over the acts of both government and private persons, and that the exercise of all public power find its source in a legal rule. (13)

Since the Secession Reference, arguments based on the rule of law have been employed in several attempts to challenge the validity of legislation. (14) In none of these cases has the rule of law proved to be a sufficient basis for invalidating legislation. Still, the Court has recently acknowledged the possibility that the rule of law may yet include additional principles, thus far unrecognized, "which might mandate the invalidation of legislation based on its content." (15)

Given that the scope and force of the rule of law in Canadian constitutional law is uncertain, judges are faced with the daunting challenge of defining a notoriously slippery and controversial concept. Some give the rule of law a relatively narrow reading, requiring only that laws be publicly promulgated, that government be subjected to them, and that compliance with the law be subject to judicial supervision. (16) But other interpretations of the rule of law are much more expansive, equating it with a robust scheme of constitutional justice that entails fairness, proportionality, equality, and even freedom of speech. (17) Still other interpretations of the rule of law dismiss it as ideological rhetoric, empowering elite judges at the expense of democratically accountable legislatures. (18)

The persistence of this sort of controversy is why skeptics of judicial review are likely to view the increased recognition of unwritten constitutional principles with suspicion. Whereas skeptics might normally find some comfort in a style of constitutional interpretation that minimizes the potential for judicial activism through the adoption of strict textualism or appeals to original intent, interpretative techniques of this sort are not available where the principles in question are unwritten. The concern then is that "when judges look outside of the Constitution, they ultimately look inside themselves." (19)

Indeed, all of the criticisms normally leveled against textually based judicial review come back with a vengeance when we talk about unwritten constitutional principles. Consider, for example, the arguments advanced by Jeremy Waldron. Waldron argues that judicial review of legislation is democratically illegitimate even when based firmly on constitutional text. (20) As Waldron observes, there is no consensus on rights in modern society; while there may be general agreement about rights at an abstract level, in practice the application of rights is almost always subject to reasonable disagreement. (21) Given the fact of reasonable disagreement, Waldron says we ought to prefer majoritarian democracy to judicial review, since the former allows for greater participation, while the latter restricts the scope of participation to a few unelected judges. (22) Whatever the merits of these criticisms, they are even more piercing with respect to unwritten constitutional principles where the courts cannot defend their conclusions with reference to the precommitments of a foundational constitutional text. If constitutional argument departs from both text and tradition, relying instead on philosophical or moral argument, it is hard to explain how the results of that argument can justifiably override the similarly derived value judgments of democratically elected representatives (unless one accepts that judges have some special access to moral truth that regular people do not). (23)

In his lone dissent in Reference re Remuneration of Judges of the Provincial Court (P.E.I.), Justice Gerard La Forest raised similar concerns. Justice La Forest was troubled by Chief Justice Antonio Lamer's suggestion, albeit in obiter, that the unwritten principles implicitly referenced in the preamble to the Constitution Act, 1867 (24) could be used to invalidate legislation. According to Justice La Forest, because "[t]he ability to nullify the laws of democratically elected representatives derives its legitimacy from a super-legislative source: the text of the Constitution," (25) departure from the text would inevitably imperil the legitimacy of judicial review. As he explained:
 The legitimacy of this interpretive exercise stems from its
 grounding in an expression of democratic will, not from a dubious
 theory of an implicit constitutional structure. The express
 provisions of the Constitution are not, as the Chief Justice
 contends, "elaborations of the underlying, unwritten, and
 organizing principles found in the preamble to the Constitution
 Act, 1867" ... On the contrary, they are the Constitution. To
 assert otherwise is to subvert the democratic foundation of
 judicial review. (26)

For similar reasons, Canadian commentators have expressed serious doubts about the legitimacy of the Supreme Court's recent enthusiasm for unwritten constitutional principles. (27) Robin Elliot argues that the Court's approach to unwritten principles is flawed because it fails to clearly distinguish between those unwritten principles that ought to merely guide the interpretation of positive law, and those that are true constitutional norms capable of overriding ordinary legislation. (28) Elliot is primarily concerned with the Court's use of what he calls "structural argumentation"--arguments that attempt to draw implications about the "foundational or organizing principles" of the Constitution from a reading of the structures of government that the Constitution creates. He notes that there are two types of structurally derived principles: (1) those which "can fairly be said to be generated by necessary implication from the text of the Constitution," and (2) those that, although not necessarily implied by the text of the Constitution, can nevertheless "fairly be said to underlie--in the sense of helping to explain the inclusion of--provisions of the text of the Constitution." (29) According to Elliot, principles in the first category have the same legal status as the text itself, and so may legitimately serve as "free-standing, independent bases upon which to impugn the validity of legislation." (30) Conversely, principles in the second category, although permissible as interpretive aids in constitutional argument, should not in themselves provide grounds to impugn the validity of legislation. (31)

Elliot argues that principles derived from the preamble of the Constitution, not being necessarily implied by the text itself, belong to the "interpretive aids" category of unwritten principles. (32) As such, he takes issue with the Court's rulings in the Remuneration of Judges Reference and the Secession Reference for suggesting (albeit ambiguously) that where there is some kind of "gap" in the text of the Constitution, these principles can be employed as independent grounds for impugning the validity of legislation. His worry is that this would allow the courts to effectively invent new rules of constitutional law.

Patrick Monahan raises similar concerns about the potential breadth of the Court's power to "fill in the gaps" wherever they are perceived. (33) Monahan questions the Court's "open-ended" approach to the problem of constitutional "gaps," criticizing the Court's ruling in the Secession Reference for effectively suggesting that it is free to fill in "gaps" according to its own sense of what the ideal of the Constitution requires. (34) As Monahan points out, it cannot be that any issue not explicitly provided for within the text of the Constitution justifies recourse to unwritten constitutional principles. (35) Some matters must have been intended to be outside the scope of constitutional obligation. As such, Monahan takes issue with the Court's finding that "a clear majority" in a referendum on secession would give rise to a duty upon the federal government to negotiate terms of secession. (36) Because the Constitution is wholly silent on this issue, Monahan argues that it is impossible for the Court to address this question without collapsing the distinction between the interpretation of constitutional text and its creation.

To be sure, hardline critics of judicial review, such as Waldron, are not likely to care whether a court's basis for interfering with democratic decisions is anchored in text and tradition or pulled arbitrarily out of the sky. But as we can see from Justice La Forest's dissent, even those who would normally support judicial review may be wary of extending that practice on the basis of unwritten constitutional principles because they worry that these principles may be simply a mask for subjective political preferences. What this kind of skepticism demands is a methodology that minimizes the risk posed to the legitimacy of judicial review in drawing upon unwritten constitutional principles as a source of constitutional argumentation. In what follows, the prospects for such a methodology are assessed.


There are at least two ways of understanding what we mean when we refer to "unwritten" constitutional principles. One way of understanding unwritten constitutional principles is to see them as the "underlying" or organizing principles behind the written Constitution and the broader legal order. (37) In the Secession Reference, the Court described principles of this kind as "the vital unstated assumptions" of the Constitution, likening them to an "internal architecture" supporting the overall constitutional structure. (38) According to the Court, the principle of the rule of law (as well as constitutionalism, democracy, federalism, and respect for minorities) would fall into this category within the Canadian constitutional tradition. (39) The distinctive characteristic of this approach is that unwritten principles are either deduced from the text of the Constitution itself or gleaned from the established practices and "historical lineage" of the legal order. As such, I will refer to this approach to unwritten constitutional principles as "immanent."

A second way of understanding unwritten constitutional principles is to see them as having an existence more or less independent of constitutional text and any particular legal tradition. Unwritten constitutional principles in this sense refer to the ideals to which all legal orders, qua legal order, implicitly aspire. According to this view, unwritten constitutional principles need not be elicited from text or established practice. Rather, the principles are derived from a moral understanding of the very point of legality--they reflect "the assumptions that any legal constitution necessarily expresses, whatever its text." (40) As such, I will call this approach to unwritten principles "transcendent."

As ideal types, these two approaches provide a helpful way of conceptualizing the differences underlying competing accounts of the rule of law. T.R.S. Allan's theory of the rule of law is a good example of the transcendent approach. (41) Allan claims that the rule of law is a "necessary component of any genuine liberal or constitutional democratic polity." (42) As such, the rule of law is to be understood as an independent "juridical ideal" that is "distinct from the scheme of justice established by any particular regime." (43) His argument is not completely abstract in that he does attempt to show how his expansive interpretation of the rule of law is amply reflected in the common law tradition shared by Australia, the United Kingdom, and the United States. But what makes Allan's approach consistently transcendent is that his ideal of the rule of law, although reflected in the common law tradition, is nevertheless knowable a priori. Moreover, because the practical legal implications of his account of the rule of law are "determined by abstract legal theory rather than close inspection of the constitutional text," written constitutional principles are ultimately made "subordinate to 'higher principles' of 'natural' or 'fundamental law.'" (44)

As noted earlier, the potentially unruly implications of this approach are just the sort of thing that skeptics of unwritten constitutional principles are worried about. It is important to observe, however, that one does not necessarily avoid transcendent reasoning merely by adopting a skeptical or conservative account of the rule of law. Peter Hogg and Cara Zwibel, for example, offer a transcendent conception of the rule of law, yet argue against the expansive conception advocated by the likes of Allan. (45) As they say, "the notion that the rule of law requires our laws to respect equality, human dignity, and other good moral values is really just natural law in disguise." (46) But like Allan, they effectively take the meaning of the rule of law to be knowable a priori, and so proceed to assess Canadian constitutional practices (specifically its judicial enforcement) in light of that meaning. (47)

In contrast, an immanent approach to the rule of law starts with established legal practice, and then proceeds to build a conception of the rule of law consistent with that practice. Albert Venn Dicey's account of the rule of law is perhaps the quintessential example of this approach. (48) Dicey contrasted the legal systems of continental countries, which he thought were largely characterized by arbitrary government authority, with what he considered to be the singular legality of the English system of government. (49) Being a "peculiarity of English institutions," the full meaning of the rule of law could only be discerned immanently, by tracing "its influence throughout some of the main provisions"of the English constitution. (50)

A review of the Supreme Court of Canada's recent jurisprudence also clearly favours the immanent approach to unwritten constitutional principles. In the Secession Reference the Court identified relevant unwritten constitutional principles with reference to an "historical linage stretching back through the ages." (51) This entailed a highly contextual analysis, guided by the boundaries of "the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning." (52) Similarly, in Reference re Manitoba Language Rights, (53) Remuneration of Judges Reference, (54) and New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), (55) the unwritten principles of the rule of law, judicial independence, and parliamentary privilege were said to derive from Canada's British constitutional heritage. These principles were found to have been incorporated into Canada's constitutional law via the preamble to the Constitution Act, 1867, which states that the Canadian constitution is to be "similar in principle to that of the United Kingdom."

Chief Justice Beverley McLachlin, in her 2005 Lord Cooke Lecture delivered in New Zealand, elaborates on why the adoption of an immanent approach ought to alleviate concerns about the legitimacy of unwritten constitutional principles. (56) The Chief Justice poses the problem of the legitimacy of unwritten constitutional principles in terms of the tension between the expression of legislative will (in written laws or constitutional text) on the one hand, and "justice as an expression of fundamental principles" on the other. (57) According to the Chief Justice, this tension can be resolved in favour of unwritten constitutional principles, as long as judges adopt a methodology that clearly distinguishes those principles that are "essential to a nation's history, identity, values and legal system" (58) from "the arbitrary or subjective view of this or that judge." (59) Thus, she argues, unwritten principles must be elicited from objective sources, including "a nation's past custom and usage; ... the written text, if any, of the nation's fundamental principles; and ... the nation's international commitments." (60)

Unwritten principles are to be derived through:
 [a] rigorous process of legal reasoning. Where, having regard to
 convention, written provisions and internationally affirmed values,
 it is clear that a nation and its people adhere to a particular
 fundamental principle or norm, then it is the court's duty to
 recognize it. This is not law-making in the legislative sense, but
 legitimate judicial work. (61)

In other words, because immanently derived unwritten principles would appear to have an objective foundation, judges can rely on them without recourse to their own subjective political values. Conversely, the validity of a transcendent principle would appear to be entirely dependent on the abstract reasoning that supports it. If that line of reasoning cannot attract universal agreement, then the transcendent nature of the principle itself becomes suspect.

The appeal of an immanent approach then is that it goes some of the way towards dispelling our worries about the democratic legitimacy of unwritten constitutional principles. One problem with this approach is that the distinction between transcendent and immanent approaches is inherently unstable. Some constitutional principles, federalism for example, are likely to have only a parochial meaning. But constitutional democracies are also built on a foundation of principles conceived from the outset as transcendent ideals of justice and legitimate government. Indeed many of the immanent principles of any constitutional democracy will have a transcendent quality, implicitly making claims to universal validity.

This is what makes appeals to unwritten principles such as the rule of law so difficult. On the one hand, some notion of the rule of law would appear to be a running theme within the common law tradition (and it clearly underlies Canada's constitutional structure). On the other hand, some semblance of the rule of law would also appear to be inherent in any legal order whatsoever (if by "legal order" we mean a system in which the exercise of state power is subjected to the constraints of legality). Because of the overlap of immanent and transcendent values, because unwritten principles such as the rule of law may have both transcendent and immanent referents, one may identify a principle along immanent lines but quickly fall into a transcendent mode of reasoning when fleshing out that principle's content.

As Walters observes, the challenge here is to identify "a theory of fundamental law that somehow fits within the matrix of doctrinal, institutional, and traditional assumptions that together define the character of the legal system." (62) Without such a framework, "the notion of fundamental law is liable to be consumed by its moral-political content, and any claim to its application as a legal norm, as opposed to political sentiment, may collapse." (63) What is lacking in both the Court's jurisprudence, and the academic commentaries addressed thus far, is a clear methodology that will allow us to discern the meaning and legal force of unwritten principles, while simultaneously guarding against inadvertent transcendent speculation. In what follows, I attempt to sketch such a methodology.


The basic premise of the immanent approach is that judges should not address the meaning of a particular unwritten constitutional norm directly via abstract philosophical argument. To do so, as I noted above, raises serious legitimacy concerns. Rather, the parameters of the inquiry must be contained by the legal tradition. By legal tradition I mean the various judicial practices, textual sources, and structural assumptions (of the kind Elliot discusses) that together constitute the character of law within a particular legal order. An immanent approach will attempt to elicit the meaning of an unwritten principle from these sources. This means that the unwritten norm has to be unpacked, first in terms of its associated practices or features within the legal tradition, and then in terms of the more particular values served by those practices. To that end, we should start with the least controversial working definition of the particular unwritten norm, in other words the easiest, most "ordinary language" sense of the principle in question. If we are talking about the rule of law, for example, we would start with a simple expression, something like "the rule of law means that both legal persons and the government must act in accordance with the law." We must then determine whether that principle is already associated with a set of established practices within the legal tradition. In this vein, we must ask in what kinds of cases or circumstances is the norm traditionally invoked, and with reference to which legal practices? Furthermore, how have the associated practices or features of the legal tradition constrained government power thus far?

Next, we ought to elicit from the practices already identified, the justificatory principles that make the most sense of them, on the assumption that these practices have become established for a reason. In other words, we ask: "what value(s) do these practices serve?" Now it may be that the answer to this question leads us directly back to the unwritten principle itself, as some unwritten norms are more-or-less self-explanatory. Democracy, for example, might be understood as an end in itself. As such, the practices associated with democracy will be intelligible simply in terms of their democratic value. But other unwritten norms, such as the rule of law or judicial independence, will not be self-explanatory, and so we must make sense of their associated practices in light of more particular values.

Finally, we should ask if the values we have identified have any bearing on the case at hand. Do those values speak to the particular problem that the unwritten norm is meant to solve? If so, then the unwritten norm may be invoked to support a particular result or to extend our practices in a novel way, with one crucial caveat: any new application of these values must be consistent with our established legal practices. In other words, we cannot employ a new practice that would upset the coherence of our existing practices.

The strategy here is to aim for the interpretation of an unwritten constitutional principle that best coheres with the legal tradition's established practices. (64) Within the framework of a tradition there will always be reasonable disagreement about its meaning; indeed, the project of eliciting constitutional values from within a legal tradition may open up contentious debates which necessarily transcend that tradition. However, reference to the legal tradition legitimizes this project because it provides a common framework, "a touchstone," for constitutional argument. (65) This common framework minimizes the risk to the legitimacy of judicial review posed by the use of unwritten constitutional principles because it limits the scope of what counts as an unwritten constitutional principle, and what counts as a plausible interpretation of that principle.

The "living tree" constitutionalist might argue that in confining unwritten constitutional principles to only those principles that can be immanently derived, one necessarily commits oneself to a static understanding of constitutionalism. She might cite cases such as Baker v. Canada (Minister of Citizenship and Immigration) (66) as the kind of progressive judicial decision that an immanently oriented approach to unwritten constitutional principles would preclude. In Baker, the Supreme Court recognized for the first time the general duty of administrative decision makers to give reasons where their decisions impact upon important individual interests, or where there is a statutory right of appeal. The argument of living tree constitutionalists then would be that the recognition of a new principle would not be possible under an immanently oriented approach, and so (if we like progressive cases such as Baker) we ought to reject immanent in favour of transcendent argumentation.

A closer look at Baker, however, illustrates how the immanent approach does not render constitutional argumentation static in practice. It is true that the traditional understanding of the common law duty of fairness did not entail a requirement to give reasons for administrative decisions. (67) Neverthless, in Baker Justice Claire L'Heureux-Dube focused on how the widespread practice of giving reasons serves existing common law values by fostering "better decision making, by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out." (68) As she explained, the provision of reasons allows the parties "to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review." (69) In other words, reasons show why the decision is or is not a reasonable one. Thus, the giving of reasons can be understood as flowing naturally from the existing requirement that administrative power be exercised reasonably. In coming to these conclusions, Justice L'Heureux-Dube also noted how in England the common law had been held to require the provision of reasons in certain circumstances. (70) Moreover, she noted that several Canadian courts had already found a duty to give reasons in certain circumstances. (71) As such, the duty to give reasons was identified as an emergent aspect of the general duty of procedural fairness, already recognized by lower courts and derived from its valuable connection to existing practices and notions of fairness. This is a paradigmatic example of common law reasoning in action. It is also precisely the kind of immanently oriented methodology I am advocating here. (72)

My point then is not that the absence of prior judicial recognition should be determinative of the question of the existence of an unwritten constitutional principle. New applications of the tradition's immanent principles are possible, but only through a gradual process of evolution. Old rules are frequently adapted and sometimes discarded, while new rules may gradually emerge. Similarly, if there is an unwritten constitution, it too must be part of the "living tree" that is Canadian constitutional law. This is, of course, to say that the unwritten constitution must be capable of growth in response to societal needs and evolving values. What the immanent approach does preclude, however, is a radical departure from established practices (including the use of unwritten principles to invalidate legislation where doing so would be inconsistent with those practices). While unwritten constitutional principles may not be static, they must nevertheless be significantly stable; there could not be a constitution at all (in any meaningful sense) if stability were not one of its central properties.


Having argued for and outlined an immanently oriented approach to unwritten constitutional principles, I hope now to demonstrate how this approach might help illuminate the unwritten principle of the rule of law with reference to Charkaoui. As was noted at the outset, one of Mr. Charkaoui's arguments before the Supreme Court was that the lack of any right of appeal in his circumstances violated the unwritten constitutional principle of the rule of law. (73) In rejecting this argument, Chief Justice McLachlin cited the Court's decision in Kourtessis v. Canada (Minister of National Revenue), where it was held that the Constitution (at least the written part of it) does not guarantee such a right. (74) But because Mr. Charkaoui's argument was based on allegedly unwritten constitutional principles, this precedent was not determinative of the issue. Thus, Chief Justice McLachlin went on to canvass several themes of the rule of law as previously recognized by the Court:
 Most fundamentally, [the rule of law] requires government officials
 to exercise their authority according to law, and not arbitrarily
 ... It requires the creation and maintenance of an actual order of
 positive laws: Reference re Manitoba Language Rights. And it is
 linked to the principle of judicial independence: Reference re
 Remuneration of Judges of the Provincial Court of Prince Edward
 Island. (75)

According to Chief Justice McLachlin, the problem with Mr. Charkaoui's argument was that it was not based on the principle of the rule of law as previously recognized, but sought rather to use it in a novel way, that is, as a basis for invalidating legislation based on its content. This conclusion was correct, but the question of whether or not there are unwritten constitutional principles that would mandate a right to appeal in certain contexts is more complicated than Chief Justice McLachlin's cursory remarks in Charkaoui suggest.

According to the immanent approach outlined earlier, we first have to identify which established practices within our legal tradition are associated with the rule of law. As the Court has recognized, the idea that government officials must exercise their authority according to the law is certainly a key component of that tradition. (76) But that idea is closely connected with the common law of judicial review, a practice that serves to oversee the exercise of government authority. Without this practice, the rule of law would be mostly an aspirational ideal, incapable of delivering remedies in cases where it is violated.

Since at least the early seventeenth century, the executive powers of the Crown in England have been subject to review by the courts for excess of jurisdiction. (77) As Dicey observed, one of the defining features of England's rule-of-law tradition was that its content was principally the result of "judicial decisions determining the rights of private persons in particular cases brought before the courts." (78) Central to this tradition is the doctrine of stare decisis, which requires that the courts have regard for judicial precedents, and be bound by them where those decisions come from a higher court within the judicial hierarchy. (79) The common law of judicial review is thus inextricably bound up with the rule of law, not just as a means of enforcement, but also as a reservoir of practical wisdom about how law ought to mediate the relationship between the state and the individual.

This tradition was received in the British Northern American colonies, where it was widely assumed that the Crown would continue to be similarly constrained by the common law, albeit with some modifications peculiar to colonial administration. (80) The tradition was carried over into the constitutional framework of Canada with the British North America Act, 1867 or as it is now known, the Constitution Act, 1867, as referenced in the preamble (this was to be "a Constitution similar in Principle to that of the United Kingdom"). (81) English judicial precedents continued to be binding upon Canadian courts until 1949. (82) Since then, Canadian courts have been free to develop the rule-of-law tradition in their own way, as cases like Baker demonstrate. The value of this tradition should not be underestimated. While the common law of judicial review may not be the only source for eliciting an immanent conception of the rule of law (we might also look to structural argumentation based on the text of the Constitution), it is in all likelihood the best and most robust source.

In determining what relevance this tradition might have for the argument in Charkaoui, the distinction between a right to an appeal and judicial review must be made clear. Although the two terms are sometimes used interchangeably, there is a real difference. Judicial review allows a person to apply to a superior court for an examination of the legality of the conduct or decision of an inferior court, board, tribunal, or committee. (83) The common law in Canada recognizes several grounds for judicial review: breach of procedural fairness (or natural justice as it was once called), review for legal or jurisdictional error, and review for unreasonableness. Constitutional provisions, such as those found in the Constitution Act, 1982, provide additional grounds for judicial review, as well as allow for direct challenges to the content of legislation itself. The jurisdiction of superior courts to hear applications for judicial review in Canada is part of their traditional, "inherent" jurisdiction under English common law, extended at the time of Confederation by section 129 of the Constitution Act, 1867. (84) Thus, provincial superior courts maintain the power of judicial review, even in the absence of any legislative enactment to that effect. (85) The inherent jurisdiction of superior courts may be ousted where federal legislation has conferred exclusive jurisdiction on the Federal Court. (86) However, it has also been recognized that the Constitution prohibits provincial legislatures from insulating provincial tribunals from the supervisory jurisdiction of the superior courts. (87) Generally speaking, pursuant to section 18 of the Federal Courts Act, (88) the Trial Division of the Federal Court has exclusive, original jurisdiction to hear applications for judicial review with respect to federal tribunals. However, the inherent jurisdiction of provincial superior courts to issue writs of habeas corpus still applies in most cases (as the Federal Court generally lacks jurisdiction to issue writs of habeas corpus). (89)

In contrast to judicial review, rights of appeal did not exist in common law, and the jurisdiction to hear appeals does not fall within the inherent powers of the superior courts. (90) As such, the rule in Canada has always been that appellate jurisdiction must be conferred by legislation. Furthermore, it seems that this rule was not altered by the introduction of the Charter in 1982. Section 24(1) of the Charter provides for a right to "apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances," where the rights or freedoms guaranteed by the Charter have been infringed or denied. (91) In Mills v. The Queen, a plurality of the Court held, however, that section 24(1) does not confer any additional appellate jurisdiction on any court. (92) Rather, section 24(1) confers additional powers to provide Charter remedies to courts that are otherwise jurisdictionally competent to entertain a Charter application. (93) In other words, where a court already has appellate jurisdiction in relation to the case at hand, it may consider Charter arguments as grounds for appeal. Furthermore, in R. v. Meltzer the Supreme Court was asked to determine whether "the rights protected or guaranteed in the Charter are of such significance that an appeal should be available where relief under the Charter is denied at first instance." (94) Specifically, Meltzer concerned the right to an appeal from an interlocutory decision to deny Charter relief in the criminal context. Speaking for the Court, Justice William McIntyre found that no right of appeal with respect to interlocutory decisions could be gleaned from the Charter. Justice McIntyre repeated his judicial pronouncement in Mills that ultimately "it is essential that an appellate procedure exist" with respect to the refusal of a claim for Charter relief. (95) He held, however, that any appeal must wait until there is a determination of a final character, at which time any prior refusal of a claim for Charter relief would be "appealable by a person aggrieved as a question of law." (96)

One could read Meltzer as standing for the expansive proposition that, where in the course of proceedings a Charter remedy is denied, the rule of law requires that there be a right to appeal the decision on Charter grounds. But the argument in Charkaoui invoking the right to an appeal was not related to the availability of Charter remedies per se. Indeed, as Chief Justice McLachlin noted in Charkaoui, the Federal Court of Appeal has recognized that "it is appropriate to circumvent the [section] 80(3) privative clause where the constitutionality of legislation is challenged." (97) Rather, the concern in Charkaoui was that the substantive merits of the designated judge's finding--that the certificate was reasonable--should be subject to an appeal in addition to available avenues of constitutional review.

We can see then that absent any textual basis for a right to an appeal, Mr. Charkaoui had no choice but to appeal to the unwritten principle of the rule of law. Indeed, it is easy to sympathize with the predicament of someone in Mr. Charkaoui's situation. A finding that the security certificate is reasonable not only initiates a process that may result in long-term detention, but also leads to the automatic conversion of the security certificate into a removal order "that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing." (98) The argument then is that given that the potential consequences for the individual are quite serious, the unwritten principles of the rule of require a right to an appeal.

Professor Hamish Stewart has recently championed, and expanded upon, this line of argument. (99) Stewart argues that the absence of a right of appeal in these circumstances is anomalous (in so far as rights of appeal are generally provided for by statute), and runs counter to what he identifies as the value of the rule of law, which is that "there ought to be review of first-instance decisions affecting important individual rights and interests, so that both the person affected and the general public can have some assurance that the decision was properly made." (100) Stewart gives several reasons why he thinks we should view as constitutionally suspect, the lack of an appeal from the designated judge's decision. First, he questions Chief Justice McLachlin's reliance on Kourtessis. (101) As Stewart claims, that case was not one in which constitutional rights were implicated, and it was decided prior to the Supreme Court's decisions "recognizing that the unwritten (or common law) constitution survived into the Charter era." (102) Next, Stewart argues that "whether a right of appeal is constitutionally required should depend on what is at stake in the decision appealed from"; in his estimation, the seriousness of the consequences for people in Mr. Charkaoui's position warrants a right to an appeal. (103) Last, Stewart points out that a denial of a right to an appeal to the Federal Court of Appeal would mean that the affected person would have to resort to the habeas corpus jurisdiction of a provincial superior court to secure a remedy. This, says Stewart, would be an "unsatisfactory substitute procedure" and, at the least, "an unseemly spectacle" given that a superior court judge would have to review the decision of a Federal Court judge, "who is not in any meaningful sense an inferior tribunal." (104)

If we accept the immanent approach to unwritten principles I have argued for here, we cannot conclude that the rule of law includes a right to an appeal simply because this seems desirable from the perspective of the individual. According to that approach, we must determine if the kinds of concerns raised by Stewart are sufficient to engage the rule of law. More specifically, we must ask if these are the kinds of concerns that underlie our existing rule-of-law practices and so might justify recognition of a right to an appeal.

The problem with Stewart's argument is not just that a review of the Court's jurisprudence shows no trace in the common law of a right to an appeal (regardless of the weight of Kourtessis, (105) the Supreme Court has on at least three separate occasions confirmed that the common law has never conferred such a right). (106) The problem is also, as Stewart himself points out, that the provincial superior courts retain their habeas corpus jurisdiction to hear an application from a person detained pursuant to the IRPA. (107) If habeas corpus jurisdiction applies here, then there is a judicial authority watching over the designated Federal Court judge. While the provincial superior courts may be an awkward forum given that the decision being reviewed is that of a Federal Court judge, it cannot be said that the detention is placed entirely outside the reach of the rule of law since the legality of the detention is precisely what the writ of habeas corpus is intended to determine. Arguably, the rule of law would be offended if the detention were in fact insulated from any form of judicial review. As we have noted, the rule of law, as reflected in the practice of judicial review, concerns not just the legality but also the fairness and reasonableness of the exercise of government power. But the absence of a right to an appeal from a decision of the designated judge goes only to the question of whether that decision was factually sound. As important as factual accuracy may be, strictly speaking it is not a value that engages the immanent conception of the rule of law.

Furthermore, recognizing a right to an appeal in Mr. Charkaoui's case would actually disrupt longstanding practices. The Supreme Court has been quite clear that even in the context of criminal proceedings there is no common law right to an appeal: "[I]t has long been settled law that there is no right of appeal in criminal matters, save as provided by statute." (108) This is an important point for our purposes here. However serious the consequences of a security certificate are for the named person, it would be strange to find that common law constitutional principles require more protection in the context of the IRPA than they do in the context of criminal proceedings (which are generally seen as representing the high-water mark for due process). Whatever the merits of granting detainees under the IRPA's detention scheme a right to an appeal, one cannot avoid reckoning with this point. An immanent conception of the rule of law cannot support the addition of new practices that would be radically inconsistent with existing practices.

This last point supports Chief Justice McLachlin's conclusion that the rule of law cannot be used as a basis for invalidating legislation based on its content. Canada's constitutional tradition has never allowed for this. Despite Chief Justice Lamer's suggestive obiter in Remuneration of Judges Reference, that case was, strictly speaking, resolved on the basis of section 11(d) of the Charter. (109) From the perspective of the immanent approach advocated here, the simple fact that there is no precedent for using the rule of law to invalidate legislation weighs heavily against using it in this way. Previously accepted applications of an unwritten principle must also be taken into account when determining its immanent meaning. As Warren Newman points out, one of the distinguishing features of Canada's constitutional tradition vis-a-vis the British one is that in Canada, constitutional text plays a central role. (110) If we are serious about adhering to an immanent approach to unwritten principles, any application of these principles must be reconciled with this fact. To allow unwritten constitutional principles to be used as an independent basis for invalidating legislation would likely disrupt the priority hitherto given to Canada's constitutional text.


So far, I have been defending what was right about the Court's decision in Charkaoui. Nevertheless, as I mentioned earlier there are problems with the Court's treatment of the rule of law in that case. The Court's comments are troubling because they seem to suggest that the rule of law, as an unwritten constitutional principle, could never have anything to add to textually embodied constitutional rights. (111) More specifically, these comments suggest that the rule of law has nothing to add where the Charter is already engaged. In what follows, I attempt to show how an immanent approach to unwritten constitutional principles yields a substantive conception of the rule of law entailing the value of reasonable justification, and that this value can make a difference in cases like Charkaoui.

In talking about the rule of law it is sometimes helpful to distinguish between its formal and substantive conceptions. As Paul Craig defines it, a formal conception of the rule of law is limited to concerns about "the manner in which the law was promulgated (was it by a properly authorised person, in a properly authorised manner, etc.); the clarity of the ensuing norm (was it sufficiently clear to guide an individual's conduct so as to enable a person to plan his or her life, etc.); and the temporal dimension of the enacted norm." (112) A formal conception of the rule of law is to be contrasted with substantive conceptions, such as Allan's, in which the rule of law is said to also entail various substantive values such as reasonable justification, or to require that the law be compatible with the values of equality and freedom of speech. (113) It is probably easier to generate, as Allan does, a substantive conception of the rule of law by way of transcendent reasoning, since a transcendent approach will allow more room for freestanding moral argument. Nonetheless, substantive values are not necessarily the exclusive domain of transcendent argument. Similar (although not identical) results can be achieved by way of immanent argument.

The immanent approach I am advocating requires us to take stock of the practices associated with the rule of law. As I have said, in the Canadian context the common law of judicial review is the central set of rule-of-law practices. A review of practices of judicial review within the Canadian tradition suggests that there is in fact a great deal going on beyond a purely formal conception of the rule of law. As I noted earlier, the common law of judicial review allows for review for breach of procedural fairness, legal or jurisdictional error, and for unreasonableness. Moreover, the courts may read into a statutory framework varying requirements of reasonableness and fairness depending upon the relative seriousness of the effects on the individual. (114) These practices only make sense if reasonableness and fairness are understood as autonomous rule-of-law values.

In addition, the common law has long allowed for privative clauses (that is, clauses that seek to partially or totally immunize legislation from substantive review) to be read so as to permit judicial review, even over questions where it is fairly obvious that the legislature sought to preclude review. (115) Again, if the valid exercise of statutory powers were all that mattered, then legislative intent would be determinative of the question of the availability and standard of review. Moreover, even where the powers being exercised are plainly discretionary, Canadian courts have still insisted that "there is no such thing as absolute and untrammeled 'discretion.'" (116)

These practices suggest that the rule-of-law tradition in Canada must be understood to include a requirement that any exercise of government power that directly and seriously impacts upon the individual must be capable of justification "in terms of rationality and fairness." (117) How this requirement is satisfied will depend on the context. The question then is how the value of reasonable justification can make a difference in cases like Charkaoui, seeing as the Charter already protects substantive values such as equality.

In Charkaoui, the use of immigration law (as opposed to a law of general application) goes right to the heart of the value of equality. While both noncitizens and citizens may be a threat to national security, it is only the former who may be detained under a security certificate. The effect of these measures, confined as they are to noncitizens (a politically powerless minority), makes them especially suspect. As Neal Katyal notes, the normal political checks on the abuse of legislative power are absent where legislation singles out noncitizens for harsh treatment. (118) As such, the usual assumption underlying deference to the will of the legislature, that "even improvident decisions will eventually be rectified by the democratic processes," does not apply. (119)

Now there is arguably a conceptual affinity between the value of reasonable justification and the value of equality insofar as both would require scrutiny of differential treatment on the part of government; however, it is not my intention here to address the question of whether or not an immanent approach could be used to justify (as Allan does via transcendent argument) a substantive standard of equality implicit in the rule of law. (120) In the Canadian context, substantive equality concerns are clearly captured by section 15 of the Charter, which precludes "unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits" to the extent that such treatment undermines the individual's "human dignity." (121)

But even if we accept the Court's conclusion in Charkaoui that the IRPA did not violate section 15, there is another problem with the scheme that is only intelligible from the perspective of the rule of law, understood to include the value of reasonable justification: the seemingly indefinite detention of detainees could only be justified as being pursuant to deportation because the Court has thus far failed to resolve the central question of the constitutionality of deportation to face torture. The reader may recall that in Suresh v. Canada (Minister of Citizenship and Immigration), (122) the Court speculated that there may be cases in which deportation to face torture could be constitutionally permissible, but it reserved judgment on the question saying, "[t]he ambit of an exceptional discretion to deport to torture, if any, must await future cases." (123) The IRPA allows a person named in a security certificate to apply for protection as a refugee, (124) and provides further that "a protected person or a person who is recognized as a Convention refugee may not be deported to a country where they would be at risk of 'torture or cruel or unusual treatment or punishment.'" (125) But subsection 115(2) of the IRPA also dictates that such a person may nonetheless be deported if she is "inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of the acts committed or of danger to the security of Canada." (126) As such, even where there is no prospect for removal within a reasonable time, detentions can be characterized as incidental to the goal of deportation simply because there has yet to be a determination as to whether the case falls within the so-called "Suresh exception." (127)

This scenario offends the rule of law, immanently understood, for two reasons. The first reason is fairly straightforward, and it is evident even from the perspective of a formal conception of the rule of law. I take it to be fairly obvious that if the rule of law means anything it means that a person's legal status ought to be ascertainable with some degree of certainty. One of the most fundamental practices associated with the rule of law in our tradition is that laws are publicly promulgated. This allows people to effectively guide their actions in accordance with the law. Where there is a dispute about compliance with the law, we can hope to get a clear and definitive answer from a court. Even a very sparse account of the rule of law must acknowledge that clear rules are needed such that an individual's legal status may not be indefinitely deferred. This idea is offended by the legal limbo arising from the unresolved issue of the Suresh exception. The deferral of an ultimate determination of the Suresh exception allows a corresponding deferral of the detainee's legal status.

The second reason why the scheme at issue in Charkaoui offends the rule of law is more complex, and it requires that we keep the value of reasonable justification in mind. The problem here becomes evident when one realizes that in substance there is little in the IRPA to distinguish it from the British detention regime considered in A v. Secretary of State for the Home Department. (128) In the United Kingdom, Parliament has explicitly authorized indefinite detention, whereas in Canada the government has been able to get away with de facto indefinite detention because the Supreme Court has so far avoided addressing the constitutionality of deportation to torture. Both schemes achieve the same result--the potentially indefinite detention of noncitizens. The only difference between the two regimes is that the federal government in Canada has not been forced to admit that this was its objective (as it was in the United Kingdom). This fact, however, is virtually invisible from the perspective of a formal conception of the rule of law, since the detentions are, in a formal sense, merely incidental to the purposes of validly enacted legislation. But from the perspective the rule of law, understood as entailing the value of reasonable justification, it is worse that indefinite detention should be done indirectly rather than on the basis of clear legislative intention. By cloaking what is in substance indefinite detention within the language of immigration law, the government avoids taking full responsibility for its real intention, and so skirts the rule-of-law value of reasonable justification. Perhaps worst of all, the rule of law is made an accomplice in all this in that the minimal procedural protection this constitutional principle provides is said to render the detention scheme acceptable. Where the government is forced to explicitly express its intention to deviate from the normal constraints of the rule of law, it must, at least, answer publicly for this decision.

In addressing these concerns, the Court need not invalidate the offending legislation. Rather, the Court need only recognize that its duty to uphold the rule of law demands that the Suresh exception finally be resolved (or at least definitively addressed). This would serve the value of legal certainty because detainees would then know whether or not they could be deported to face torture. Moreover, this would also mean that the government could no longer hide behind the legal limbo arising from the unresolved issue of the Suresh exception. As such, the choice to subject only foreign nationals to indefinite detention would have to be publicly justified by the federal government in accordance with section 1 of the Charter.


I have argued that where judges elicit unwritten principles from within the legal tradition, their conclusions have an objective foundation capable of withstanding charges of judicial activism. I have also attempted to show that this approach does not necessarily confine us to a minimal or formalist conception of the rule of law. But, as the discussion of the question of a right to appeal in Charkaoui demonstrates, there are clear limits to what can be accomplished by way of the immanent approach to unwritten constitutional principles. This approach is not capable of supporting arguments for the emergence of wholly novel constitutional rights. Thus, the immanent approach would not support Mr. Charkaoui's argument for a right to an appeal. As we saw, that argument cannot be tied to any existing threads within Canada's rule-of-law tradition. More fundamentally, however, it is very difficult to imagine how the immanent approach could ever support the use of unwritten constitutional principles as independent grounds for impugning the validity of legislation, given that this would radically depart from established practices. Perhaps an extreme case might justify a more forceful use of unwritten constitutional principles, say for example if Parliament were to invoke the Charter's section 33's notwithstanding clause (section 33) to insulate a blatantly evil law from the Charter's reach. (129) Nightmare scenarios aside, the Canadian constitutional tradition has never allowed for unwritten principles to be used in this way, and the immanent approach would preclude any move in that direction unless this could be shown to be consistent with established practices.

An immanent approach to the rule of law asks us to make sense of established practices in light of the values these practices serve. As I have shown, a review of the common law of judicial review suggests that reasonable justification is an animating value of the constitutional principle of the rule of law, immanently understood. If we understand constitutional principles expansively, that is, as encompassing all those principles that constitute government and control its exercise of power, then common law practices of judicial review are no less part of the constitution than the written guarantees of the Charter (although the latter may have greater juristic force). (130) In other words, the fact that the rule of law may not provide an independent basis for impugning the validity of legislation does not mean that it has nothing to offer in cases that engage the Charter. As I have argued, greater sensitivity to the value of reasonable justification might have alerted the Court to the way in which the persistence of the Suresh exception runs counter to Canada's rule-of-law tradition.

Of course, concerns about the legitimacy of judicial review are not entirely alleviated by adopting an immanent approach to unwritten constitutional principles, since the interpretation of these principles is still the job of unelected and unaccountable judges. The skeptic might argue, for example, that even if unwritten constitutional principles are immanently derived and cannot be used to invalidate legislation, unwritten principles ought to be rejected because they allow judges too much interpretive freedom. This is a valid concern, but it only applies in the abstract. Where the tradition has already established that there are both written and unwritten constitutional principles, arguing against the legitimacy of unwritten principles is like arguing against the legitimacy of written principles. It is an argument about what the ideal constitutional framework for governance might look like, and not about how to make coherent sense out of an existing constitutional order. In other words, an argument against the legitimacy of immanent unwritten principles is a transcendent argument, and so it too is subject to the criticism that it represents just another subjective value preference. What should really concern us is whether or not our use of unwritten constitutional principles contributes to a coherent picture of the constitutional order.

(1) 2007 SCC 9, [2007] 1 S.C.R. 350 [Charkaoui].

(2) S.C. 2001, c. 27 [IRPA].

(3) Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].

(4) IRPA, supra note 2 at s. 80(3).

(5) Charkaoui, supra note 1 at paras. 133-36.

(6) Jeremy Waldron, "Is the Rule of Law an Essentially Contested Concept (In Florida)?" (2002) 21 Law and Philosophy 137 at 151.

(7) Peter W. Hogg & Cara F. Zwibel, "The Rule of Law in the Supreme Court of Canada" (2005) 55 Univ. of Toronto Law J. 715.

(8) See Mark D. Walters, "Common Law Constitution in Canada: Return of Lex Non Scripta as Fundamental Law" (2001) 51 Univ. of Toronto Law J. 91.

(9) Reference re Secession of Quebec, [1998] 2 S.C.R. 217 [Secession Reference]; Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3 [Remuneration of Judges Reference]; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 [New Brunswick Broadcasting Co.].

(10) Secession Reference, supra note 9 at para. 54.

(11) Ibid. at para. 49.

(12) Ibid. at para. 53.

(13) Ibid. at para. 71.

(14) See Bacon v. Saskatchewan Crop Insurance Corp., [1991] 11 W.W.R. 51 (Sask. C.A.); Singh v. Canada (Attorney General), [2000] 3 F.C. 185 (C.A.); Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3; Hogan v. Newfoundland (Attorney General), [2000] 189 Nfld & P.E.I.R. 183; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473 [Imperial Tobacco].

(15) Imperial Tobacco, ibid. at para. 61.

(16) See e.g., Peter Hogg & Cara F. Zwibel, supra note 7; see also Joseph Raz, "The Rule of Law and Its Virtue" (1997) 93 Law Quarterly Rev. 195.

(17) See e.g., T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001) [Constitutional Justice].

(18) See e.g., Allan Hutchinson & Patrick Monahan, "Democracy and the Rule of Law," in Allan Hutchinson & Patrick Monahan, eds., The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987).

(19) Ronald D. Rotunda, "Interpreting an Unwritten Constitution" (1989) 12 Harvard J. of Law & Public Policy 15 at 17.

(20) Jeremy Waldron, "The Core of the Case Against Judicial Review" (2006) 115 Yale Law J. 1346.

(21) Ibid. at 1369.

(22) Ibid. at 1371.

(23) See Justice Scalia in Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 999-1000 (1992).

(24) Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, 133 [Constitution Act, 1867].

(25) Remuneration of Judges Reference, supra note 9 at para. 314.

(26) Ibid. at para. 319 (original emphasis).

(27) Robin Elliot, "References, Structural Argumentation & the Organizing Principles of Canada's Constitution" (2001) 80 Canadian Bar Rev. 67; Jean Leclair, "Canada's Unfathomable Unwritten Constitutional Principles" (2002) 27 Queen's Law J. 389; Patrick Monahan, "Public Policy Role of the Supreme Court of Canada in the Secession Reference" (1999) 10 National J. of Constutional Law 65; Warren Newman, "Understanding the Rule of Law in Canada" in Stephen Tierney, ed., Accommodating Cultural Diversity (Aldershot: Ashgate Publishing Limited, 2007). For more sympathetic accounts, see Dale Gibson, "Constitutional Vibes: Reflections on the Secession Reference and the Unwritten Constitution" (1999) 11 National J. of Constitutional Law 49 and Walters, supra note 8.

(28) Elliot, ibid.

(29) Ibid. at 83-84.

(30) Ibid. at 84.

(31) Ibid.

(32) Ibid. at 87.

(33) Monahan, supra note 27.

(34) Ibid. at 89.

(35) Ibid. at 90.

(36) Ibid. at 91.

(37) David Mullan, "The Role for Underlying Constitutional Principles in a Bill of Rights World" (2004) New Zealand Law Rev. 9 at 34.

(38) Secession Reference, supra note 9 at paras. 49-50.

(39) Ibid. at para. 49.

(40) David Dyzenhaus, "David Mullan's Theory of the Rule of (Common) Law" in Grant Huscroft & Michael Taggart, eds., Inside and Outside Canadian Administrative Law (Toronto: University of Toronto Press, 2006) at 471.

(41) See Allan, supra note 17; for a more concise account of Allan's theory see T.R.S. Allan, "The Rule of Law as the Rule of Reason: Consent and Constitutionalism" (1999) 115 Law Quarterly Rev. 221 [Allan, "Rule of Law"].

(42) Constitutional Justice, supra note 17 at 1.

(43) Allan, " Rule of Law," supra note 41 at 224.

(44) Constitutional Justice, supra note 17 at 263.

(45) Hogg & Zwibel, supra note 7.

(46) Ibid. at 718.

(47) Ibid.

(48) Albert Venn Dicey, Introduction to the Study of the Law of the Constitution 9th ed. (London: MacMillan and Co. Ltd., 1948).

(49) Ibid. at 189.

(50) Ibid. at 203.

(51) Secession Reference, supra note 9 at para. 49.

(52) Ibid. at para. 32.

(53) Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721.

(54) Remuneration of Judges Reference, supra note 9.

(55) New Brunswick Broadcasting Co., supra note 9.

(56) Beverley McLachlin, P.C., "Remarks of the Right Honourable Beverley McLachlin, P.C." (The 2005 Lord Cooke Lecture in Wellington, New Zealand, 1 December 2005), online: < UnwrittenPrinciples_e.asp>.

(57) Ibid.

(58) Ibid.

(59) Ibid.

(60) Ibid.

(61) Ibid.

(62) Walters, supra note 8 at 93.

(63) Ibid.

(64) Ronald Dworkin, Law's Empire (Oxford: Hart Publishing, 1998). The allusion here is to Dworkin's idea of "law as integrity."

(65) Secession Reference, supra note 9 at para. 53.

(66) 1999 SCC 699, [1999] 2 S.C.R. 817 [Baker].

(67) Ibid. at para. 37.

(68) Ibid. at para. 39.

(69) Ibid.

(70) Ibid. at para. 41.

(71) See ibid. at para. 42. These cases are: Orlowski v. British Columbia (Attorney General), (1992), 94 D.L.R. (4th) 541 (B.C.C.A.) at 551-52; R.D.R. Construction Ltd. v. Rent Review Commission (1982), 55 N.S.R. (2d) 71 (C.A.); Taabea v. Canada (Refugee Status Advisory Committee), [1980] 2 F.C. 316 (T.D.); and Boyle v. Workplace Health, Safety and Compensation Commission (1996), 179 N.B.R. (2d) 43 (C.A.).

(72) It is also important to note that the duty to give reasons recognized in Baker is not of the same order as the constitutional norm asserted in Charkaoui. The common law duty of fairness is always subject to the legislature's power to determine the specific procedures applicable to its statutes. As such, the duty to give reasons may be amended or expressly ousted by statute. In contrast, the right of appeal at issue in Charkaoui was asserted as a true constitutional norm, capable of overriding the express commands of the legislature.

(73) Mr. Charkaoui also argued that the rule of law was violated by the provision in section 82 of the IRPA for the issuance of an arrest warrant by the executive as opposed to the judiciary (in the case of a permanent resident), or for mandatory arrest without a warrant following an executive decision (in the case of a foreign national). I do not address this aspect of the argument here.

(74) 1993 SCC 137, [1993] 2 S.C.R. 53 [Kourtessis].

(75) Charkaoui, supra note 1 at para. 134.

(76) Secession Reference, supra note 9 at 71.

(77) See Walters, supra note 8 at 106.

(78) Dicey, supra note 48 at 195.

(79) William R. Lederman, Continuing Canadian Constitutional Dilemmas (Toronto: Butterworths, 1981) at 13.

(80) See generally Walters, supra note 8.

(81) Supra note 24.

(82) Lederman, supra note 79 at 14.

(83) See John A. Yogis, Canadian Law Dictionary, 4th ed. (Barron's Educational Series, 1998) at 143-44.

(84) See Reference re: Matrimonial Causes Act (Alb.), [1919] A.C. 956 (P.C.) at para. 14, where the Privy Council affirmed the general constitutional principle that "nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so."

(85) Ibid.

(86) See Canard v. Canada (Attorney General), [1976] 1 S.C.R. 170; see also Canada (Labour Relations Board) v. Paul L'Anglais Inc., [1983] 1 S.C.R. 147.

(87) Crevier v. Quebec (Attorney General), [1981] 2 S.C.R. 220.

(88) R.S.C. 1985, c. F-7.

(89) Ibid. at s. 28.

(90) See R. v. Meltzer, [1989] 1 S.C.R. 1764 [Meltzer] at para. 14: "At common law there were no appeals. All appeals have been the creature of statute."

(91) Supra note 3, s. 24(1).

(92) [1986] 1 S.C.R. 863 [Mills].

(93) Ibid. at para. 271.

(94) Meltzer, supra note 90 at para. 13.

(95) Ibid. at para. 15.

(96) Ibid. at para. 20.

(97) Charkaoui, supra note 1 at para. 136. It would certainly be an affront to the rule of law if the constitutionality of legislation could be insulated from judicial review simply by means of a privative clause.

(98) IRPA, supra note 2, s. 81.

(99) Hamish Stewart, "Re Charkaoui: Good News and Bad News for the Rule of Law" (Submission to the International Commission of Jurists, Eminent Jurists Panel, 24 April 2007), online: <>.

(100) Ibid. at 9.

(101) Kourtessis, supra note 74.

(102) Stewart, supra note 99 at 10.

(103) Ibid.

(104) Ibid. at 10-11.

(105) It is somewhat misleading to say that the authority cited by Chief Justice McLachlin was not a constitutional case. Kourtessis arose out of proceedings under the Income Tax Act that were criminal in nature, and the case involved a challenge to a search warrant on Charter grounds. The question before the Supreme Court there may have been somewhat technical or jurisdictional in its focus, but the case clearly implicated constitutional concerns.

(106) See ibid.; see also Meltzer, supra note 90; and Mills, supra note 92.

(107) Ibid.

(108) Mills, supra note 92 at para. 270.

(109) Remuneration of Judges Reference, supra note 9 at 82. See also Newman, supra note 27 at 217. Section 11(d) of the Charter, supra note 3, reads: "Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal."

(110) Newman, supra note 27 at 230.

(111) Charkaoui, supra note 1 at para. 137.

(112) Paul P. Craig, "Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework" (1999) Public Law 467 at 467.

(113) See Allan, supra note 17.

(114) See Baker, supra note 66, for the five factored approach to procedural fairness; see also Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 [Pushpanathan] for the "pragmatic and functional approach" to determining the standard of review.

(115) See Pushpanathan, ibid. According to the pragmatic and functional approach endorsed by the Court, the presence or absence of a privative clause is only one of several factors that ought to determine the appropriate standard or review, none of which are determinative on their own.

(116) Roncarelli v. Duplessis, [1959] S.C.R. 121 at 140.

(117) Chief Justice Beverly McLachlin, "The Role of Administrative Tribunals in Maintaining the Rule of Law" 12 Canadian J. of Administrative Law and Practice 171 at 174.

(118) Neal Katyal, "Equality in the War on Terror" (2007) 59 Stanford Law Rev. 1365.

(119) Ibid. at 1373.

(120) Interestingly, Allan says that whether or not a law is discriminatory will depend in actual cases on "constitutional tradition and settled understandings"; see Allan supra note 17 at 246.

(121) Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 51.

(122) 2002 SCC 1, [2002] 1 S.C.R. 3 [Suresh].

(123) Ibid. at para. 78.

(124) IRPA, supra note 2, section 112.

(125) Ibid. at section 115(1).

(126) Ibid.

(127) I am grateful to Rayner Thwaites for having pointed out this aspect of Charkaoui out to me in one of several productive conversations we had on the case. See also Canada (Minister of Citizenship and Immigration) v. Mahjoub, 2005 FC 1596 (CanLII), per Justice Dawson at para. 29: "In short, I find on a balance of probabilities that Mr. Mahjoub is unlikely to be removed from Canada until the Supreme Court authoritatively decides whether circumstances will ever justify a removal to torture. If the Court finds that removal to torture is constitutionally acceptable in exceptional circumstances, then the specific circumstances of this case will have to be considered in order to determine whether those exceptional circumstances exist."

(128) [2005] H.L.J. No. 13.

(129) See Walters, supra note 8 at 140.

(130) See generally David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006).

Alex Schwartz *

* Queen's University of Belfast, School of Law. I am grateful to Professor David Dyzenhaus and Rayner Thwaites of the University of Toronto, Faculty of Law, to Greg Clarke, and to both anonymous referees for their insightful and challenging comments on earlier drafts of this article. Any errors are my own.
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Author:Schwartz, Alex
Publication:Review of Constitutional Studies
Date:Jul 1, 2008
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