In recent years, unwritten constitutional principles have often found their place in Canadian constitutional law via their supposed foothold in the part of the preamble to the Constitution Act, 1867<\/em> that refers to \u201ca Constitution similar in Principle to that of the United Kingdom\u201d. Principles such as judicial independence, democracy, federalism, constitutionalism and the rule of law, and protection of minorities have been derived from the preamble. In this article, I look through almost 150 years of Supreme Court of Canada case law in order to determine what that preambular phrase has meant over time.<\/p>\n It turns out that in the years immediately before and after 1867, the relevant part of the preamble largely referred to what we now call political constitutionalism,[1]<\/a> or the idea that constitutional questions should generally be resolved by democratically elected institutions. Concepts such as parliamentary sovereignty, parliamentary privilege, and the many constitutional conventions that filled out the essentially uncodified Constitution were manifestations of this political constitutionalism. Therefore, as a historical matter, it appears mistaken to suggest that the preamble was an \u201cinvitation\u201d to courts to fill \u201cgaps\u201d[2]<\/a> in the Constitution, in the manner suggested by the Supreme Court of Canada in the 1990s<\/a>. And, as it happens, for the first 125 years of Confederation, the preamble was used in a more constitutionally orthodox fashion<\/a>\u2014that is, as an aid to interpretation.<\/p>\n How has it come to be that the preamble is now associated with legal constitutionalism, or the idea that constitutional questions should be resolved\u2014and gaps filled\u2014by courts? If the Supreme Court of Canada\u2019s purported textual justification for this gap-filling tendency (the 1867 preamble) is not very convincing, then are there better justifications available? I propose a reading of the preamble and constitutional principles that is attentive to text, case law, principle, and an evolving Canadian context\u2014what might be called a \u201csustainable jurisprudence.\u201d[3]<\/a> Before considering my own reading, I describe other, more familiar options. Even if the preamble is not a convincing justification for the Court\u2019s gap-filling role, other jurisprudential developments since 1982 might be said to serve.<\/p>\n The 1980s happened to coincide with the growing influence of the ideas of Ronald Dworkin, according to which \u201chard cases\u201d (including gaps in the text of the Constitution) can and should be filled with interpretations based in principle and political morality. This approach, and approaches like it, apparently obviate any need to find a foothold in the preamble. Therefore, by way of a first example, when a century\u2019s worth of unilingual Manitoba laws were deemed to violate the constitutional text in the Manitoba Reference<\/em> of 1985,[4]<\/a> the Supreme Court used other countries\u2019 constitutional experience and the principle of the rule of law to inform its bold use of suspended invalidity, delaying the effects of its opinion until the laws could be brought into compliance.[5]<\/a> While it is true that \u201cthe rule of law\u201d formed part of the UK constitution and could be identified via the preamble, nothing like this sort of muscular deployment of the principle could be grounded in the United Kingdom\u2019s more restrained tradition of judicial power. A deeper jurisprudential movement seemed to explain this and subsequent cases, including the Supreme Court\u2019s well-known Secession Reference<\/em><\/a> decision of 1998.[6]<\/a><\/p>\n If the jurisprudential approach of Dworkin and his successors\u2014and the related tradition of common law constitutionalism\u2014had truly taken hold in the 1980s and 1990s, then it would have been hard to see where the courts\u2019 brief stopped in the name of deciding hard cases or filling gaps. And yet the courts clearly began to perceive limits to how far they could go in reasoning from principles. I explore the possible jurisprudential foundations for the courts\u2019 evolving approach to principles (and what is often referred to as common law constitutionalism).<\/p>\n As Mark Walters has identified,[7]<\/a> Dworkin\u2019s earliest writing on constitutional reasoning spoke of a process of \u201creflective equilibrium\u201d\u2014a sort of \u201cback and forth,\u201d on Dworkin\u2019s account, between the underlying principles, on the one hand, and the ongoing intuitions about how to realize those principles as represented by the common law, on the other hand.[8]<\/a> In a later rendition, Dworkin set out this account using the compelling analogy of the chain novel, according to which each new chapter is based on a judge\u2019s best reading of the chapters that have come before.[9]<\/a> Dworkin\u2019s model had the advantage, formally speaking, of confining the judges\u2019 tools to rules, principles, and even morality developed in the past<\/em> and applied in the present<\/em>. So many of our legal instincts tell us that this is the proper way for law to work. The problem with Dworkin\u2019s version of reflective equilibrium is that, by confining itself in this way, it risked becoming less relevant and less effective in the future<\/em> in the society to which it was meant to apply. Laws and legal systems, unlike chain novels, have to be relevant, effective, and sustainable in the real world, otherwise the promise of the rule of law cannot be realized.[10]<\/a><\/p>\n Another version of reflective equilibrium in hard cases (a more sustainable version, I argue here) imagines a back and forth not just between principles and the intuitions represented in prior cases, but also between principles and the actual context in which they must play out. This version of reflective equilibrium is expressly rejected by Dworkin,[11]<\/a> probably because it opens up lawmaking in hard cases to accusations of non-legal policy-making. I argue that the application of general principles in hard cases is always a matter of judgement,[12]<\/a> in its more traditional sense of wisdom or statecraft. In this version, taking the factual context seriously is not just desirable; it is essential to the law\u2019s future effectiveness, its sustainability. And, as counterintuitive as it might sound to those of us with a traditional legal education, those who care about the rule of law should be just as concerned with this forward-looking, judgement-based aspect of law as with its more familiar past-focused aspect.<\/p>\n At this point, it is usually (and rightly) said that judges are far from infallible (not to mention unelected) assessors of the broader factual context into which law plays out. It does not follow, however, that with their limited abilities to assess in mind, judges should always leave the law as it is. To do nothing can be as \u201cactivist\u201d as to do something in any particular hard case.[13]<\/a> What good judges generally do in hard cases is to take a measured step[14]<\/a> in what seems to them to be the best direction, taking into account such rules and principles as exist, and such consideration of the context into which their decision will play out as their experience and counsels\u2019 pleadings allow.[15]<\/a> Without suggesting that Canadian courts always employ this jurisprudential method, I do think that what I call a sustainable jurisprudence points to some important elements in the current Canadian attempt to balance political and legal constitutionalism.<\/p>\n If this reading and analysis are correct, then Canadian courts have not simply moved from dominant political constitutionalism of 1867\u20131982 to dominant legal constitutionalism from 1982 onward. Instead, Canadian courts are moving toward an important compromise between the values that animated both periods of Canadian constitutional history. This more sustainable jurisprudence involves, as it must, a healthy respect for the many rules that constitute law in its traditional form. However, in the sorts of hard cases that regularly appear before the Supreme Court of Canada, a more sustainable jurisprudence provides courts with guidance in applying general principles to the broader context into which the courts\u2019 eventual judgements will play out.<\/p>\n The balance of this article proceeds as follows. Part I sets out basic rules regarding preambles and constitutional interpretation, and sketches a rough picture of the nineteenth-century UK constitution. Part II examines how the relevant apex courts (the Supreme Court of Canada and, until the middle of the twentieth century, the Judicial Committee of the Privy Council) interpreted the preamble before 1982, while Part III examines how the Supreme Court of Canada has interpreted it after 1982. Part IV seeks an explanation for the very different accounts of the preamble pre- and post-1982, opting for an explanation based on what I have termed a sustainable jurisprudence. I then present a summary of findings in the conclusion.<\/p>\n The Constitution Act, 1867<\/em> begins with a four-paragraph preamble. This article will focus on the first paragraph, and especially on its final phrase:<\/p>\n WHEREAS the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom<\/em>.[16]<\/a><\/p>\n Driedger and Sullivan tell us that preambles are most often relied upon to reveal legislative purpose.[17]<\/a> That purpose should be apparent in a clearly drafted statute, but an explanation of purpose that relies on a preamble has what Driedger and Sullivan call \u201ca desirable authority\u201d[18]<\/a> and \u201cadded force and legitimacy.\u201d[19]<\/a> Preambles can occasionally reach deeper than legislative purpose. Due to the fact that legislation inevitably leaves room for interpretive discretion, a preamble can be helpful in spelling out the assumptions, values, and principles that the legislator takes to be relevant.[20]<\/a><\/p>\n The leading UK authority on the use of preambles, according to Driedger and Sullivan, is AG v. Prince Ernest Augustus of Hanover<\/em>.[21]<\/a> Hanover<\/em> establishes that \u201cpreambles may always be looked at as part of the context, but only minimal weight should be attached to them,\u201d though such weight as they merit will be affected by their \u201cclarity and specificity.\u201d[22]<\/a> As far as Canadian statutory interpretation is concerned, Driedger and Sullivan agree that the weight to be given to the preamble is affected by its clarity and specificity; they stress, however, that the \u201cminimal weight\u201d assessment in Hanover<\/em> does not reflect Canadian practice, where the tendency is \u201cto attach as much weight to the preamble as seems appropriate in the circumstances.\u201d[23]<\/a><\/p>\n Canadian statutory interpretation rules seem to leave considerable potential for making use of preambles. What then should we make of the preamble to the Constitution Act, 1867<\/em>?[24]<\/a> Before considering the understandings of the preamble that emerged after Confederation, it may be helpful to consider what might have been meant by the phrase \u201ca Constitution similar in Principle to that of the United Kingdom\u201d, given the British constitutional tradition to which it clearly refers.<\/p>\n In some (especially foreign) eyes, the United Kingdom had no constitution at all, if \u201cconstitution\u201d meant an entrenched, supreme, judicially reviewable, codified set of rules, as was the case with the US Constitution at the time. However, \u201cconstitution\u201d has always had a narrower and a wider sense. The narrower sense has just been described. The wider sense refers to an assemblage of rules dealing, most importantly, with the establishment of the institutions of government, the relationships between the various institutions inter se<\/em>, and the relationship between those institutions and citizens.[25]<\/a> The United Kingdom has always had a constitution of this type, and its sources are many and varied: acts of Parliament (e.g., the Bill of Rights<\/em>, the Acts of Union<\/em>, the Act of Settlement<\/em>, the Representation of the Peoples Acts<\/em>, the Habeas Corpus Act<\/em>), common law decisions (e.g., Prohibitions del Roy<\/em>,[26]<\/a> Case of Proclamations<\/em>,[27]<\/a> Entick v. Carrington<\/em>[28]<\/a>), Crown prerogative (arising in custom but circumscribed by the common law), constitutional conventions (including the office of prime minister, the cabinet, and the workings of responsible government generally), the law and custom of Parliament (including parliamentary privilege), and so on.<\/p>\n The preamble to the Constitution Act, 1867<\/em> (\u201c1867 Act<\/em>\u201d) did not say that the constitution (in the wider sense) of the United Kingdom will also belong to Canada. Rather, it said that Canada would have \u201ca\u201d constitution \u201csimilar in Principle\u201d. The act that followed the preamble set out provisions regarding institutions, the relationship between institutions, and to a lesser extent, the relationship between institutions and citizens. It did so in a way that was entrenched, from a Canadian perspective (by virtue of it being an act of the UK Parliament), was supreme (by virtue of section 2 of the Colonial Laws Validity Act, 1865<\/em>), and gave rise to judicial review (given that acts and decisions of \u201csubordinate\u201d Canadian bodies acting under the Imperial Act<\/em> were reviewable in the British constitutional tradition, unlike acts of the UK Parliament itself). And like the US Constitution, the 1867 Act<\/em> established a federal system of government.<\/p>\n In what sense then could this entrenched, supreme, federal constitution under which judicial review is possible be similar in principle to that of the United Kingdom? After all, I have just noted some of the similarities to the US Constitution. The most salient similarities to the constitution of the United Kingdom were the following: the Queen, prime minister, cabinet, and system of responsible government; the sovereignty of Parliament and the protection of rights by means of the common law; and the law and custom of Parliament.<\/p>\n The 1867 Act<\/em> referred to the legislative institutions (House of Commons and Senate) and the courts, but it said very little about the executive, or very little that was recognizable to lay observers. Executive power was vested in the Queen and in the Governor General and Lieutenant-Governors, with little mention of the establishment of and limits on the exercise of that power. The detailed rules regarding succession to the throne, like the detailed rules regarding the election, composition, and functioning of the Westminster Parliament (the de facto general amending formula of the Canadian Constitution[29]<\/a>), were nowhere to be found. In a way this was not surprising, seeing as the Crown (and the Crown-in-Parliament) were British institutions of long standing. If Canadians needed to know more about them, the preamble referred them to the United Kingdom and its laws and other traditions, without the need to adopt them into Canadian law.<\/p>\n The cabinet was referred to only obliquely, and the prime minister and premiers not at all. Similarly, the collective and individual responsibility of ministers to Parliament and the legislatures were not mentioned. Most of these latter \u201comissions\u201d from the written text were, according to the constitution of the United Kingdom, governed by constitutional convention. Given that responsible government had already been achieved in the British North American colonies of Canada, New Brunswick, and Nova Scotia, it was inevitable that responsible government would also exist in the new Canada.<\/p>\n All this is to say that while the 1867 Act<\/em> provided a substantial number of written constitutional rules, it did not in any sense purport to be codified<\/em>. The Queen, prime minister, the cabinet, and the system of responsible government that were governed by unwritten<\/em> constitutional conventions in the United Kingdom would be governed by similar rules in Canada. Unless this assumption is made, the 1867 Act<\/em> makes very little sense. It is therefore safe to assume that the phrase \u201ca Constitution similar in Principle to that of the United Kingdom\u201d was at least intended to import unwritten conventional rules of this type. It is part of a broader post-1867 story (which is not emphasized in this particular narrative) that those same conventions evolved as Canada moved from colony to independent nation.[30]<\/a><\/p>\n Other than rights regarding the use of the English and French languages, the 1867 Act<\/em> made no attempt to protect rights in a manner similar to the famous American Bill of Rights. As Dicey would soon point out, rights in the UK constitution were protected in the common law, and (so it was said) in the good sense and tolerance of the British people and Parliament. In cases such as Entick v. Carrington<\/em>,[31]<\/a> British judges ensured that the executive respected the rule of law and the liberties of subjects.[32]<\/a> Courts would not, however, invalidate acts of Parliament; Parliament remained supreme. Yet while only Parliament (not the executive) could trump the common law, it was assumed that a democratically elected Parliament would not cede its powers to the executive or attack the liberties of its own citizens. If \u201ca Constitution similar in Principle to that of the United Kingdom\u201d is to be given a likely meaning, then the long-standing British approach to parliamentary sovereignty and rights would have to be close to the core of that meaning.[33]<\/a><\/p>\n Section 18 of the 1867 Act<\/em> made clear that the Parliament of Canada could define the privileges, immunities, and powers of the Senate and House of Commons. However, until Parliament did so, the privileges, immunities, and powers of the Senate, House of Commons, and provincial legislatures were presumably those that had already existed in the legislatures of the British North American colonies, and in the British parliamentary tradition for far longer. These rules are essential to the running of Parliament in the British tradition. Although such rules have often been overlooked or under-emphasized by constitutional lawyers, they too are essential to the proper functioning of the Constitution in the British tradition. And again, it is difficult to understand the 1867 Act<\/em> without them. It is likely, therefore, that the preamble is also referring to the law and custom of Parliament where it speaks of \u201ca Constitution similar in Principle to that of the United Kingdom\u201d.<\/p>\n The common theme seems to be that \u201ca Constitution similar in Principle to that of the United Kingdom\u201d would intentionally<\/em> leave gaps in the written text. That is, such a constitution would not try to cover all potential constitutional terrain with formal legal rules. Put another way, as noted earlier, the framers of the Constitution had not made an attempt at codification. Under the UK constitution, many important topics are left beyond the purview of law. This is not to say that they are unregulated. Rather, their regulation is governed by non-legal norms, principally political ones. A constitution similar in principle to that of the United Kingdom is, to a significant extent, a \u201cpolitical constitution.\u201d[34]<\/a><\/p>\n If we take the topics identified above (under headings 1, 2, and 3) in turn, we can see how the UK model works. It would be possible for the UK constitution both to create and to limit the executive. Instead, the UK constitution accepts extraordinary executive powers vested in the Queen, in the form of the prerogative, and (until relatively recently[35]<\/a>) it provided very little in the way of legal regulation of these powers. The courts have some say in identifying the existence and extent of the Crown prerogative,[36]<\/a> but in many cases (even today), its exercise is legally unregulated. Instead, political norms, including constitutional conventions, do the important work of regulating seemingly exorbitant legal power. Far from being an invitation to courts to fill legal-constitutional gaps regarding executive power, the preamble seemed to say that the absence of thorough-going legal-constitutional regulation is acceptable; political regulation would do the rest of the job. That view has been subsequently questioned, even in the United Kingdom, but it remains a powerful feature of the British constitutional tradition.<\/p>\n The same is true for parliamentary sovereignty and rights. The UK constitution gave sovereign legislative power to (the Crown-in-) Parliament. This seemed to mean that Parliament could limit or erase the rights of subjects. It is quite normal in constitutional systems for courts to assume the responsibility of making sure that this does not happen. However, under the UK constitution, the courts\u2019 role, and therefore the law\u2019s role, is constrained: again, political regulation plays an important part. The courts developed the common law so as to respect the liberties of subjects, widely and robustly interpreted, but if Parliament ever considered limiting or erasing those rights in clear terms, then (again, until recently[37]<\/a>) the sanction lay not in the courts, but in the political process writ large (parliamentary pressure, elections, demonstrations, etc.). Understood in this sense, the preamble was a reminder to courts not to fill politically regulated terrain with too much law.<\/p>\n The law and custom of Parliament was a further example of this phenomenon, and one where the courts and Parliament had engaged in political battles (disguised as law from the courts\u2019 side) for some time.[38]<\/a> The whole premise behind the law and custom of Parliament was that the courts would not attempt to regulate the internal affairs of Parliament. And again, we must remind ourselves that the absence of legal regulation did not mean the absence of any regulation whatsoever. Parliament had every interest in regulating its own affairs rigorously and competently. The preamble\u2019s \u201cConstitution similar in Principle to that of the United Kingdom\u201d was a reminder of that fact as well.<\/p>\n ***<\/p>\n It is quite natural for those who are familiar with codified constitutions to ask a range of \u201cwhat if\u201d questions. W<\/em>hat if<\/em> the Queen or her representative abused their power and refused to assent to any of the legislation proposed by a democratically elected government? What if<\/em> Parliament enacted legislation that erased the ability of certain groups in society to participate in political life? What if<\/em> Parliament persistently misrepresented the results of votes taken in the House of Commons? The traditional approach of the UK constitution was to assume that these pathological developments would be resolved by non-legal means. However, even under the UK constitution it was possible that truly extraordinary circumstances would prompt a court to intervene, perhaps where it deemed the very fabric of the constitutional structure to be under attack. Nevertheless, many experts on the UK constitution argued that even in such extreme circumstances, the political constitution would be left to regulate itself without interference from the courts.[39]<\/a><\/p>\n Clearly, then, the preamble pointed readers of the uncodified Canadian Constitution in the direction of answers to important questions regarding, for example, executive and legislative power not set out in that Constitution. But it did not invite Canadian courts to import or invent new legal material to fill those gaps. Many laws lay behind the British sovereign and the Westminster Parliament, each of which played an important, ongoing role with respect to Canada after 1867. Anyone intent on knowing more about the legal nature of these constitutional actors was directed to the United Kingdom to find answers. However, those laws were not thereby imported into Canadian law, nor was it up to Canadian institutions\u2014judicial, legislative, or executive\u2014to regulate or alter them. What Canadians did do, however, was to develop constitutional conventions, norms of political behaviour, initially in the British tradition, but later in more distinctly Canadian ways, in keeping with Canada\u2019s evolution from colony to independent nation. But this was principally a political evolution, as I have tried to emphasize.<\/p>\n Following this attempt to coax out some of the more salient potential meanings of the preamble in the British constitutional tradition, we can now turn to the Canadian courts\u2019 treatment of the preamble.[40]<\/a> It will be convenient and appropriate to divide this analysis into two periods: pre-1982 and post-1982. Generally speaking, the courts used the preamble in a manner consistent with traditional statutory interpretation prior to 1982. After 1982, however, there was a relative explosion of judicial creativity with regard to the preamble. The Supreme Court began to view the preamble as an invitation for judges to discover legal principles to fill gaps\u2014even gaps that had originally been the preserve of the political part of the Constitution.<\/p>\n One of the questions that arises from this account is whether the 1982 patriation process completed the Constitution of Canada, by turning an uncodified model into a codified one, or whether even after 1982, our Constitution should be understood to contain deliberate gaps where legal-constitutional regulation is off limits. That question will be answered in Part IV as part of a discussion about the role of principles and \u201ca Constitution similar in Principle to that of the United Kingdom\u201d in contemporary Canadian constitutional law.<\/p>\n This long early period of Supreme Court and Privy Council interpretation of the preamble reveals surprisingly little about the phrase \u201ca Constitution similar in Principle to that of the United Kingdom\u201d. In over a century, the preamble was infrequently cited, and where it was cited, it was not required to bear much weight. Nonetheless, these early cases do give us some guidance as to interpretive method and substantive content regarding the preamble. By \u201cinterpretive method,\u201d I am referring to the ways<\/em> in which the preamble has been mobilized by courts, whereas by \u201csubstantive content,\u201d I am referring to what the preamble is taken to mean<\/em>, or what principles are understood to follow from it. It is important to keep these separate analytically, given that the former relates to courts\u2019 self-understanding and the latter to the actual results of that understanding, though in practice both are at play to varying degrees. Focusing on the substantive results alone would leave unanswered the question of whether these results were arrived at deliberately or simply by unexamined assumptions and sloppy reasoning. We will see that the courts were often quite explicit as to their method where it was more traditional, less explicit where more radical.<\/p>\n The first case to discuss interpretive method regarding the preamble was Re Representation in the House of Commons<\/em>.[41]<\/a> Justices Davies and Mills used the preamble to discover the \u201cobjects\u201d of the 1867 Act<\/em>, in just the sort of way that Driedger and Sullivan would eventually recommend.<\/p>\n If they were to use the preamble at all, judges in this period were careful to point out that it was the preamble, together with the 1867 Act<\/em>, that enabled them to interpret the meaning of the Constitution. Some examples may be helpful here.<\/p>\n In Valin v. Langlois<\/em>, Justice Henry used the preamble to support his conclusion that the federal Parliament was competent to legislate regarding contested elections. For him, the preambular reference to \u201ca Constitution similar in Principle to that of the United Kingdom\u201d, together with a subsequent preamble paragraph and the whole scope of the Act<\/em>, indicated that, even under the new federal arrangements, no matter was beyond the jurisdiction of one or the other level of government, with residual matters falling to the federal Parliament.[42]<\/a><\/p>\n In Re References by the Governor-General in Council<\/em>,[43]<\/a> the Supreme Court of Canada had to consider whether a federal Parliament that could undoubtedly create courts could also vest those courts with an advisory role. The majority, which concluded that Parliament did have such a power, cited the preamble alongside references to sections of the 1867 Act<\/em>. However, in his reasons, Chief Justice Fitzpatrick placed considerable weight on the preamble on its own, citing sections of the 1867 Act<\/em> more by way of contrast or complement than by way of direct support. It was perhaps in reaction to the Chief Justice\u2019s willingness to use the preamble in such direct fashion that a second member of the majority, Justice Anglin, issued a caution, one in which reliance on the 1867 Act<\/em> was clearly preferred:<\/p>\n It may be that, having regard to the preamble of the \u201cBritish North America Act,\u201d the power to create a court involves the right to impose upon it the duties prescribed by section 60 and that, ex vi termini<\/em>, when constituted it is endowed with the powers necessary to enable it to discharge such duties. But such implied or inherent jurisdiction, whether legislative or judicial, is apt to prove, like public policy, \u201ca very unruly horse.\u201d Its limits are vague and ill-defined. It may become a specious pretext to cloak an unwarranted assumption of power. I prefer to rest my opinion that section 60 of the \u201cSupreme Court Act\u201d is intra vires<\/em> upon the provision of section 91 of the \u201cBritish North America Act.\u201d[44]<\/a><\/p>\n The other two members of the majority, Justices Davies and Duff, displayed a more traditional reliance on the preamble as a strong aid to statutory construction.[45]<\/a><\/p>\n If one were to look to the pre-1982 period for more muscular approaches to interpretation using the preamble, where it was used to fill gaps rather than to aid in the interpretation of the text, there would be few cases to rely on. The Chief Justice\u2019s isolated approach in Re References by the Governor-General in Council<\/em> has already been noted. One might also point to Fort Frances Pulp and Paper Co. v. Manitoba Free Press Co<\/em><\/strong>.[46]<\/a> In determining whether \u201cPeace, Order, and good Government\u201d in section 91 of the Constitution Act, 1867<\/em> included a federal power to deal with emergencies, the text provided scant indication. The final court to hear the case, the Judicial Committee of the Privy Council, was far more influenced by the underlying principles revealed in the preamble. Viscount Haldane used the preamble to contrast UK and Canadian unitary tendencies with American state-centred tendencies.[47]<\/a> The radical nature of this approach lay in the willingness to probe at a deep level of principle and abstraction.<\/p>\n The most famous \u201cradical\u201d cases of preambular interpretation are those that made the argument for an implied bill of rights: Reference Re Alberta Statutes<\/em>,[48]<\/a> Saumur<\/em>,[49]<\/a> and Switzman<\/em>.[50]<\/a> While recognition of an implied bill of rights was a genuinely radical development at that moment in Canadian constitutional history, the interpretive method used in these cases was not as radical as is often remembered. It is a well-known fact that the implied bill of rights perspective never owned a majority in any of these cases, but it is less well known that even judges inclined to seek far-reaching conclusions often used traditional methods.<\/p>\n Chief Justice Duff in Re Alberta Statutes<\/em> is exemplary in this respect. There is no doubting the importance of the Chief Justice\u2019s willingness to take the lead in recognizing limits to legislative sovereignty based on freedom of expression. However, Chief Justice Duff (with whom Justice Davis agreed) purported to arrive at his conclusions by conventional means: using the preamble to indicate the purpose of the 1867 Act<\/em>,[51]<\/a> and then using the actual provisions of the act to bear the weight of his argument.[52]<\/a> \u00a0In contrast, Justice Cannon was willing to make only passing reference to the 1867 Act<\/em>, and to base his reasons more squarely on political theory and the preamble.[53]<\/a><\/p>\n In the second case of the implied bill of rights trilogy, Saumur<\/em>, all of the judges expressed a view regarding the preamble. Chief Justice Rinfret and Justice Kerwin were, in declining degrees, skeptical as to the effect of the preamble. Justice Kellock was open-minded, but he read Re<\/em> Alberta<\/em> Statutes<\/em> as being inconclusive, preferring therefore to leave the preamble and implied bill of rights argument for another day. Justice Rand, who was clearly sympathetic to the implied bill of rights argument, followed his reference to the preamble with an immediate reference to the substantive provisions of the Constitution, notably those that established democratic institutions.[54]<\/a> Justice Estey made a very general assumption about what those who drafted the 1867 Act<\/em> must have intended, supporting that exposed claim by citing \u201cmore particularly\u201d the preamble.[55]<\/a> Thus, he used the preamble as an aid to interpretation, but an aid that was admittedly carrying considerable weight. Justice Locke was the most enthusiastic in his support of the implied bill of rights theory, and he used the preamble as the only constitutional base for this argument. He fully supported Chief Justice Duff in Re<\/em> Alberta<\/em> Statutes<\/em>, who, as we have just seen, was quite conventional in his interpretive approach.[56]<\/a> In conclusion, three of the six judges in this case made use of the preamble, but only Justice Locke used it as the exclusive constitutional grounding. The other judges were more orthodox in their interpretive approach, although, as we have seen, it is sometimes instructive to gauge the relative influence of text and preamble in their reasoning.<\/p>\n The final case of the implied bill of rights trilogy was Switzman v.\u00a0Elbling.<\/em> In that case, Justice Abbott provided strong support for the implied bill of rights theory, basing his view predominantly on the preamble.[57]<\/a> Thus, in his view, the preamble could be used to impose limits on provincial legislation. By way of obiter dicta<\/em>, Justice Abbott expressed the view that the implied bill of rights placed limits on equivalent federal legislation, and that this too would be based in the preamble.<\/p>\n One of the cases thought to be inimical to the approach initiated by the implied bill of rights trilogy is Canada (AG) and Dupond v. City of Montreal<\/em>.[58]<\/a> In fact, what Justice Beetz said in that case was that, because freedom of assembly was not recognized in the United Kingdom, it could not become part of the Canadian Constitution via the preamble: \u201cBeing unknown to English law, the right to hold public meetings on the public domain of a city did not become part of the Canadian Constitution under the preamble of the British North America Act<\/em>, 1867<\/em>.\u201d[59]<\/a> Far from rejecting the force of the preamble, this decision appeared to affirm it. Had this right been recognized in English law, Justice Beetz would apparently have considered it as a candidate to \u201cbecome part of the Canadian Constitution under the preamble.\u201d<\/p>\n One of the clearest assessments of the proper interpretation of the preamble appeared just prior to patriation, in the Patriation Reference<\/em>.[60]<\/a> The majority reasons regarding the legal question in the reference put the preamble argument back in its place, so to speak; it had no force of law, and while it could illuminate other substantive provisions of the Constitution, it was those provisions rather than the preamble that did the work:<\/p>\n What, then, is to be drawn from the preamble as a matter of law? A preamble, needless to say, has no enacting force but, certainly, it can be called in aid to illuminate provisions of the statute in which it appears. … There is also an internal contradiction in speaking of federalism in the light of the invariable principle of British parliamentary supremacy. Of course, the resolution of this contradiction lies in the scheme of distribution of legislative powers, but this owes nothing to the preamble, resting rather on its own exposition in the substantive terms of the British North America Act<\/em>. [61]<\/a><\/p>\n This review of the period before 1982 reveals that although there are glimpses of more expansive, radical uses of the preamble, the interpretive method was essentially orthodox. I proceed now to examine the meaning given to the preamble even when it was used in this traditional manner.<\/p>\n The dominant theme in the pre-1982 preamble case law is responsible government in a context of parliamentary sovereignty. In Re Representation in the House of Commons<\/em>, Justice Mills, with the support of three other judges, said twice that a \u201cConstitution similar in Principle to that of the United Kingdom\u201d referred to the principle of responsible government and the doctrine of sovereignty of Parliament.[62]<\/a> Twenty five years later, in Reference re Meaning of the Word \u201cPersons\u201d in Section 24 of the British North America Act, 1867<\/em>,[63]<\/a> Justice Duff stated that the preambular phrase means two things, both related to parliamentary sovereignty: first, that, subject to sections 91 and 92, Parliament and the provincial legislatures are sovereign; and second, the executive is responsible to Parliament and the legislatures.[64]<\/a> In Reference Re Weekly Rest in Industrial Undertakings Act<\/em>,[65]<\/a> Justice Cannon quoted with approval the understanding of the preamble that emphasized responsible government.[66]<\/a><\/p>\n As argued in Part I, because responsible government is based to such a large extent on convention, it is the most obvious candidate for inclusion in the understanding of the preambular phrase under study. This also appeared to have been the view of the Supreme Court of Canada in Quebec (AG) v. Blaikie<\/em>:<\/p>\n The Lieutenant-Governor is part and parcel of the Legislature. … He appoints members of the Executive Council and ministers … and these, according to constitutional principles of a customary nature referred to in the preamble of the BNA Act <\/em>as well as in some statutory provisions … must be or become members of the Legislature and are expected, individually and collectively, to enjoy the confidence of its elected branch.[67]<\/a><\/p>\n As noted earlier, much of the implied bill of rights reasoning was based not on the preamble, but on a reading of the 1867 Act<\/em> itself, notably the establishment through the Act<\/em> of democratic institutions. The creation of democratic institutions implied certain rights to support them, notably freedom of expression. It may be helpful to discuss the various rights that have at times been linked to the preamble, even if only by a minority of judges.<\/p>\n It is well known that cases such as Re Alberta Statutes<\/em>, Saumur<\/em>, and Switzman<\/em> dealt primarily with the right to freedom of expression, or free public discussion, and that judges such as Justice Cannon in Re Alberta Statutes<\/em>, Justices Rand and Locke in Saumur<\/em>, and Justice Abbott in Switzman<\/em> relied on the preamble to the greatest extent. However, the pre-1982 case law also recognized other key rights, such as freedom of religion.<\/p>\n The Saumur<\/em> case had to do with the right to express<\/em> unpopular views, but the views in question were of a religious nature, so freedom of religion was also implicated. Justice Locke acknowledged this explicitly, and linked the need to protect this freedom to the preamble.[68]<\/a><\/p>\n Freedom of expression and religion are part of the core of rights that invariably appear in a written bill of rights. However, the preamble left an opening for the inclusion of non-standard rights that happened to have existed under the UK constitution. High profile cases like Re Alberta Statutes<\/em> would have encouraged counsel to bring the preamble to bear in argument even where more peripheral rights were being alleged.<\/p>\n In Winner v. SMT (Eastern) Ltd<\/em>,[69]<\/a> Justice Kellock used the preamble in support of his view that a right to unrestricted use of the highway was available to all Canadians, as was the case in the United Kingdom. As with freedom of expression and freedom of religion, this meant that the right was limitable, if at all, only by the federal Parliament. We see here the interaction between rights and parliamentary sovereignty under the constitution of the United Kingdom. In the pre-1982 period, a right would be recognized and protected to the extent possible by the common law, but such rights would ultimately give way if Parliament legislated clearly to limit them.<\/p>\n In some instances, the UK constitution, which is to say (in the tradition of Dicey) the common law, did not recognize rights that were included in the bill of rights component of many other written constitutions. This was the case in Dupond<\/em> where, as noted earlier, the absence of recognition of freedom of assembly in the UK common law tradition caused the Supreme Court of Canada to refuse to recognize such a right or freedom via the preamble.[70]<\/a><\/p>\n The conventions of responsible government and the implied bill of rights claimed by far the greatest amount of attention prior to 1982 where the preamble was concerned. We should not leave this Part, however, without noting a brief reference to an aspect of the preamble that would attract considerable attention post-1982: the separation of powers and the independence of the judiciary.<\/p>\n In one of the first cases to cite the preamble, Valin v. Langlois<\/em>, Justice Fournier linked the preamble to the creation and maintenance of judicial power, within a constitution based on the separation of powers: \u201cOne of the essential elements of the British Constitution, as of every regular government, is the creation of a judicial power, such power and the legislative and executive powers forming the three indispensable elements of every government.\u201d[71]<\/a> It is well known that the British constitution substantially merges the legislative and executive powers, but if the separation of powers is understood principally to require the creation, maintenance, and independence of a judicial power, then Justice Fournier\u2019s argument appeared to be well founded.<\/p>\n The pre-1982 cases provided few clues as to the proper answer to this question, but given its potential importance to future litigation, it is worth noting that such clues exist.<\/p>\n In Re Alberta Statutes<\/em>, Justice Cannon appeared to assume that 1867 was the relevant moment when the content of the preamble should be determined: \u201cAs stated in the preamble of The British North America Act<\/em>, our constitution is and will remain, unless radically changed, \u2018similar in principle to that of the United Kingdom.\u2019 At the time of Confederation<\/em>, the United Kingdom was a democracy.\u201d[72]<\/a> Justice Cannon could have simply said that the United Kingdom was and is a democracy, assuming that he was not inclined to deny this fact in the 1930s, but instead he referred, deliberately it would seem, to \u201cthe time of Confederation.\u201d<\/p>\n We have already seen how Justice Locke was willing to recognize freedom of religion in Saumur<\/em>. Like Justice Cannon in Re Alberta Statutes<\/em>, Justice Locke appeared to assume that the test for such a right under the preamble was set at 1867: \u201cThe right … was a right of the subjects of Her Majesty under the constitution of the United Kingdom referred to in the preamble of the British North America Act when that statute was passed in 1867<\/em>.\u201d[73]<\/a>\u00a0 However, it is difficult to place much weight on this or the statement by Justice Cannon. Neither judge dwelled on the point, and in the case of Justice Locke, it is quite possible that the reference to 1867 was simply a relatively insignificant reminder of the date of the 1867 Act<\/em>.<\/p>\n We have just seen that prior to 1982, the Supreme Court of Canada (or the Privy Council) tended to employ the preamble together with the actual provisions of the 1867 Act<\/em>. This approach was understandable, given that the preamble lacked \u201cenacting force,\u201d as the majority on the legal question had stated in the Patriation Reference<\/em>.[74]<\/a><\/p>\n However, all of this was about to change. What we see in the post-1982 period is a marked tendency to use the preamble as an independent, and occasionally independently sufficient, source of law, as if it had somehow acquired in 1982 the \u201cenacting force\u201d it lacked in 1981. It will be important to gauge the extent to which this new trend is based on the preamble, the principles underlying the Constitution, or both.<\/p>\n The Manitoba Reference<\/em> represented an about-face in terms of the Court\u2019s use of the preamble. Here, the rule of law was said to become \u201ca postulate of our … constitutional order by way of<\/em> the preamble.\u201d[75]<\/a> On the one hand, the clear grounding of an argument in \u201cprinciple\u201d opened up new potential for legal reasoning that the Supreme Court of Canada would enthusiastically explore over the next twenty or thirty years. On the other hand, in terms of the independent force of the preamble and its future interpretation, it was significant that the Court used the preamble to ground a principle<\/em> rather than a precise rule. As we shall see, having used the preamble to ground a principle, the Court was then quite capable of using principles to determine more precise rules.<\/p>\n Further on in the Manitoba Reference<\/em>, it appeared that the principle in question (the rule of law) was \u201cimplicit in the very nature of a Constitution,\u201d independent of (or, as the Court says, \u201cadditional to\u201d) its origin in the preamble.[76]<\/a> This may have been a clue as to how the Court in the Manitoba Reference<\/em> wished to be understood. Given the highly exceptional nature of the facts that gave rise to the Manitoba Reference<\/em>\u2014the potential invalidity of a century\u2019s worth of Manitoban laws\u2014it would have been surprising to find specific provisions of the Constitution of Canada that dealt with the matter. However, despite the absence of specific provisions, given the fundamental nature of the principle at stake, it would have been equally surprising not to find evidence of this principle throughout the structure of that constitution. We will return to this at a later point.<\/p>\n As if in recognition of this about-face, the Court somewhat defensively stated that it could not take \u201ca narrow and literal approach to constitutional interpretation.\u201d[77]<\/a> Given the exceptional nature of the case, this was probably right. However, the Court must have been aware that in analyzing the case as it did, it was opening the door to a new form of argumentation: \u201cIn other words, in the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada.\u201d[78]<\/a> The Court was somewhat disingenuous in saying that this approach was consistent with use made of the preamble in the Patriation Reference<\/em>; we have already seen how the majority on the legal question in that case reaffirmed a traditional approach to the preamble.[79]<\/a><\/p>\n There are three important sets of reasons in this case insofar as the preamble is concerned. Chief Justice Lamer and Justice La Forest, separately, had important things to say about the interpretation of the preamble. Whatever the cogency of their comments on interpretation, it was Justice McLachlin (as she then was) who attracted majority support in the result.<\/p>\n Chief Justice Lamer began by making clear a point that he had left ambiguous in the earlier case of R. v. Smith<\/em>:[81]<\/a> the preamble does not incorporate specific pieces of legislation. It incorporates broad principles that may be instantiated by specific legislation, but the constitutions of Canada and the United Kingdom are similar, not identical. Chief Justice Lamer here kept close to the text of the preamble, elucidating both the words \u201csimilar\u201d and \u201cprinciple.\u201d[82]<\/a><\/p>\n The broad incorporation in this case was that of parliamentary privilege. Its \u201cinherent constitutional status\u201d was \u201cderived\u201d from \u201cthe very nature of legislative bodies and the preamble.\u201d[83]<\/a> Further along, Chief Justice Lamer confirmed this approach, referring to \u201cincorpora[tion] by way of the preamble of the broad principle<\/em> of … the independence of the legislative process.\u201d[84]<\/a> It is probably important to note that Chief Justice Lamer\u2019s caution here was also reflected in his reluctance to award full constitutional status to the broad principles thus incorporated.<\/p>\n Justice La Forest, who agreed in general with Justice McLachlin, saw the preamble as \u201cgiving expression\u201d to that which attached to local institutions by virtue of their continuance in Confederation or by virtue of their creation. In other words, other legal rules were doing the work, and the preamble was simply recording the result that had been achieved by other textual means.[85]<\/a><\/p>\n Justice McLachlin, in agreement here with Chief Justice Lamer, clearly rejected the idea that the preamble incorporated specific sections of the Bill of Rights (or any other UK or imperial statute). Contrary to Chief Justice Lamer, however, Justice McLachlin found that there was \u201ca constitutional<\/em> privilege inherent in the legislative assembly by virtue of … the preamble.\u201d[86]<\/a> Our key question, again, was whether the preamble on its own would have been sufficient, and Justice McLachlin seemed happy to leave the impression that it would have been so.<\/p>\n It was in considering the weight of the privilege\u2019s constitutional status that Justice McLachlin disagreed most profoundly with Chief Justice Lamer. She argued that privilege had equal constitutional status as compared to the Charter<\/em>, and that the preamble (which she referred to as \u201cthe first part of our written constitution\u201d[87]<\/a>) appeared to be the main reason or justification for this. Here she was at her most categorical: \u201cThere is no question that this preamble constitutionally guarantees the continuance of Parliamentary governance.\u201d[88]<\/a> In her final restatement of the proposition at the heart of her analysis, Justice McLachlin seemed to develop something of a test for how to use the preamble: \u201c[G]iven the clear and stated intention of the founders of our country in the Constitution Act, 1867<\/em> to establish [1] a constitution similar to that of the United Kingdom, the Constitution may also include such privileges as have been [2] historically recognized as [3] necessary to the proper functioning of our legislative bodies.\u201d[89]<\/a><\/p>\nI.\u00a0 Basic Rules Regarding Preambles and Constitutional Interpretation in the British Constitutional Tradition<\/h1>\n
A.\u00a0 Preambles and Statutory Interpretation<\/h2>\n
B.\u00a0 \u201cA Constitution Similar in Principle to That of the United Kingdom\u201d from a Nineteenth-Century Perspective<\/h2>\n
1.\u00a0\u00a0\u00a0 The Queen, Prime Minister, Cabinet, and the System of Responsible
\nGovernment<\/h3>\n2.\u00a0\u00a0\u00a0 Sovereignty of Parliament and the Protection of Rights by Means of the Common Law<\/h3>\n
3.\u00a0\u00a0\u00a0 The Law and Custom of Parliament<\/h3>\n
4.\u00a0\u00a0\u00a0 A Common Denominator or Dominant Theme?<\/h3>\n
II. The Privy Council, the Supreme Court of Canada, and the Preamble Prior to 1982<\/h1>\n
A. Interpretive Method<\/h2>\n
1.\u00a0\u00a0\u00a0 Traditional or Orthodox Method<\/h3>\n
2.\u00a0\u00a0\u00a0 More Radical Uses of the Preamble<\/h3>\n
3. \u00a0\u00a0 The Traditional or Orthodox Method Reasserted<\/h3>\n
B. Meaning or Substantive Content of a \u201cConstitution Similar in Principle to That of the United Kingdom\u201d Before 1982<\/h2>\n
Having discussed the interpretive method employed when using the preamble pre-1982, I now turn to the meanings that were given to the preamble when the courts referred to it. As we shall see, those meanings centred on a fairly narrow and predictable range of matters: responsible government and sovereignty of Parliament; the implied bill of rights; and the separation of powers and the independence of the judiciary.<\/h3>\n
1. \u00a0\u00a0 Responsible Government and Sovereignty of Parliament<\/h3>\n
2.\u00a0\u00a0\u00a0 Implied Bill of Rights<\/h3>\n
3.\u00a0\u00a0\u00a0 Separation of Powers and the Independence of the Judiciary<\/h3>\n
C.\u00a0 Is \u201ca Constitution Similar in Principle to That of the United Kingdom\u201d Frozen at 1867, or Is It Ambulatory? The View Pre-1982<\/h2>\n
III. The Supreme Court of Canada and the Preamble Post-1982<\/h1>\n
A.\u00a0 Interpretive Method<\/h2>\n
1.\u00a0\u00a0\u00a0 The Manitoba Reference<\/em><\/h3>\n
2.\u00a0\u00a0\u00a0 New Brunswick Broadcasting<\/em>[80]<\/a><\/h3>\n
3.\u00a0\u00a0\u00a0