A paper constitution is not worth the paper it is written on?

Introduction:

What is the value or worth of the Canadian constitution?   A phrase posed, by our past Prime Minister, Brian Mulroney, who critiques our Constitution as one that must unite, be accepted, and supported for it to be meaningful. This paper takes the view that much of this dependant upon the public’s perception of the branches of governments functionality.   This paper will analyze this question as it relates to the Canadian Constitution by critiquing the courts’ role in interpreting our fundamental civil liberties as entrenched in the Charter of Rights and freedoms or Charter.[1]  This paper will first examine some contributions made to constitutional interpretation by the positivists Hans Kelsen and H.L.A. Hart, and non-positivists like Ronald Dworkin.[2]  The focus will be on the Canadian courts adoption of a principled approach that compliments the ‘living tree’ doctrine to constitutional interpretation.  Followed by a critique of the tensions that exist between, the unelected courts that are the self promoted ‘gate keepers’ of Charter rights and the democratically elected legislatures.  It will then become evident that the framers of our Constitution and by extension the Charter, sought to promote healthy dialogue between the legislative and the judicial branches of government, while securing protections (or elements) of parliamentary sovereignty within our Canadian democratic rule.  From this perspective, this paper will conclude that our Constitution is worth the very paper it is written on.

The Canadian Constitution is in part, written statutes (or laws passed by parliament) and unwritten conventions or customs.  More akin to the British Constitution in body (multiple documents) as opposed to the American Constitution that is referred to as one document.  According to Janet Walker in her dissertation entitled Constitutional Law of Canada and Not Simply The Constitution of Canada, “as Professor Peter Hogg, explains, unlike “most countries [where] the bulk of the constitutional law is contained in a single constitutional document, which can be and usually is described as 'the Constitution' ... .in Canada ... there is no single document comparable to the Constitution of the United States, and the our 'Constitution' accordingly lacks a definite meaning.”[3]  What Walker suggests is to look for a proper meaning to what the Constitution is, one must look at what is the universally accepted definition of constitutional law.  Drawing upon Professor Peter Hoggs writings, Walker describes constitutional law as the “the law prescribing the exercise of power by the organs of a State.”[4]  The Canadian Constitution provides a basis for direction outlining power sharing between governmental branches and their relationship between Canadian citizens or society[5].  These rights are generally negative rights (save conflicting positive obligations allotted by the courts; for example, to section 7 and section 15 of the Charter[6]) imposing an obligation on the three branches of government not to infringe upon.  

The phrase, ‘is the Constitution worth the paper its written on’ is most likely familiar to those who follow Canadian politics.  It originates from a misquote by William Johnson's of then Prime Minister Brian Mulroney.  Mr. Johnson was a journalist and former leader of Alliance Quebec, an English-language lobby group.  According to an article in the Globe mail, Mr. Mulroney said “the Constitution is not worth the paper it's written on."[7] This is false.  In fact, Mr. Mulroney said, "A Constitution that does not bring Canadians together, that is not accepted by all Canadians, and a constitution that does not protect the inalienable and imprescriptible individual rights of individual Canadians is not worth the paper it is written on" (House of Commons Hansard, April 6, 1989).[8]  The Constitution places broad language civil liberties or inalienable rights within it under the Charter of Rights and Freedoms or Charter, entrenched as Part I of the Constitution Act, 1982.  Much of the Canadian public would be familiar with section 2, and sections 7-15 of the Charter where there has been much court litigation either broadening or narrowing those rights since the Charters inception in 1982.  There are different values and understandings that society places on these civil liberties that can evoke negative emotional responses when government acts infringe on them.  While both the legislative and judicial branches are involved in the interpretation of Charter rights, it is the judiciary that often receives most of the backlash.  These can come in the form of emotional responses, forming anti-democratic ridicule, that is reflective of the publics negative view of the power sharing relationship between the government and the public.   Inquiries, surrounding the judiciary’s process of interpretation of these rights, and why it spurs an emotional reaction from the public, offers insights to its effects on public perception.  

1.     Non-positivists and Positivist Objections to constitutional interpretation:

The Canadian court’s process of interpreting Charter rights is political in nature.  According to Ronald Dworkin in The Moral Reading of the Constitution, “most contemporary constitutions declare individual rights against the government in very broad and abstract language.”[9] He speaks of a particular way in which the Constitution is to be read and enforced calling it a ‘moral reading’.  This form of interpretation, according to Dworkin:

“Brings political morality to the heart of constitutional law.  But political morality is inherently uncertain and controversial, so any system of government that makes such principles part of its law must decide whose interpretation and understanding will be authorities.  In the American system judges -ultimately the justices of the Supreme Court-now have the authority, and the moral reading of the constitution is therefore said by its critics to give judges absolute power to impose their own convictions on the public”[10]

Dworkin identifies the act of constitutional interpretation as political in nature that aims for a perfect answer.  He finds that this process inherently invokes tensions within society because they feel as if they have no control over the process.  A strong critic of positivism,[11] Ronald Dworkin’s political morality is an application of interpretation that has been adopted by both Canadian and American courts.  But contrary to Dworkin’s belief, there is not always a correct answer to be found in the law to every situation, especially in the application of constitutionally protected rights.  What counts as a correct ruling in defining Charter rights is relative, as seen in section 1 of the Charter,[12] serving to constrain government action and drive the development of public policy.  The public, with their own tightly held understanding of these rights, are not readily persuaded by the court’s rationale.  The judiciary is viewed as a closed, elitist and inaccessible institution.  For these reasons the public may feel more comfort in debating the scope of the parameters of these legally binding rights and how they form public policies in the political arena.

Political debate is often viewed as unrestricted, involving issues of public morality and policy building.  In contrast to structured rule-governed discussion in a legislative body, the judiciaries role in judicial review is ‘interstitial’ (confined to deciding a narrow issue before them based on a specific, often limited, set of facts).[13]   Hans Kelsen, a positivist, felt that the best institution of government to be left to define civil liberties, such as our Charter rights, are elected officials.  According to Fabio Wolkenstein in his book Hans Kelsen on Constitutional Democracy, Hans Kelsen writings on “democracy compliment his legal -theoretical writings by describing how positive norms can be produced in a democratic fashion.”[14] The argument posed by Wolkenstein, based upon the works of Hans Kelsen that moral principles do not exist in the interpretation of law but properly exists in political debate, highlights that to better progress this democratic process is by way of “party constitutionalism [referring] to the idea of subjugating party organizations to constitutional regulation in order to ensure that they internally conform to democratic principles. The concern is securing the political freedoms of those who actively engage in political parties against the oligarchy top-down rule of power-seeking party elites”[15].  Hans Kelsen who sought to strengthen political debate understood that there were inherent flaws that restrained it.  He proposed securing certain mechanisms in the law to promote healthy debate between naturally political polarized parties.  According to Kelsen, “a democratic state is necessarily and unavoidably a multiparty state.  Without parties that reliably represent the collective interests in procedures of norm-creation. Competing social demands can not be effectively articulated and brought to bear on decisions.”[16]  Hans Kelsen sought to invoke legal mechanisms to better achieve social representation and progress.  Positivists, like Hans Kelsen, do not support a principled approach to constitutional interpretation[17], leaving policy making and the creating of positive norms to the democratic process or legislative branch. Positivists would disagree with Canadian courts creation of new legal principles or filling gaps in the law with their own moral or policy judgments.  Society negatively perceives the judiciary as having the power to enforce their own moral philosophy over those of society.  The Canadian judiciary was not intended to replace political debate but to inform and guide it.

Public perception of the judiciary’s power is a warranted concern.  The ambiguity in these broadly worded rights leads to this apprehension that society fosters.   As best described by

H.L.A. Hart:

“[law as defined] is a social construction.  It is a historically contingent feature of certain societies, one whose emergence is signaled by the rise of a systematic form of social control and elite domination. In one way, it supersedes custom, in another it rests on it, for law is a system of primary social rules that direct and appraise behavior, together with secondary social rules that identify, change, and enforce the primary rules. Law may be beneficial, but only in some contexts and always at a price, at the risk of grave injustice; our appropriate attitude to it is therefore one of caution rather than celebration.”[18] 

Apart from Harts theory of primary and secondary rules, Hart firmly identifies the core of societies apprehensions towards the judiciary as in part concerned a with elites’ control over society but is justified because of the inherent risks of injustice that can occur.  This social construction can interfere with societies willingness to compromise with judicial interpretation.  H.L.A. Hart, a soft positivist in comparison to the hard positivism of Hans Kelsen recognized that society has mixed understandings of moral principles which lead to public concerns about how the judiciary represents those understandings and whether they do at all.  The Charter rights are reflections of the values considered by society as essential for Canadian democracy.   When conflict arise, between the representative legislative branch and the unelected judicial branch, it often involves questions of democracy.[19] Reconciling the need for judicial review with concerns of democracy involves some sort of working relationship between these branches of government.[20]     

2.     The Problem of Judicial Legitimacy, elected v unelected officials:

There is an inherent risk that injustice might occur in the interpretation of Charter rights.  Democracy in Canada, as expressed under section 1 of the Charter, is an exercise of collective self governance through a representative government.[21]   The placing of section 33 within the Charter, known as the ‘notwithstanding clause’, provides security that parliamentary sovereignty will always be respected, although conflictual as it seems to be limited by our constitutional supremacy doctrine.[22] According to Eric Adams and Erin Bower,  Notwithstanding History: The Rights-Protecting Purposes of Section 33 of the Charter: “From the outset, the notwithstanding clause was premised on the central rights-protecting norm of insisting on explicitness and transparency in the legislative process where rights are concerned, and on the democratic engagement of the public in assessing, weighing, and debating potential rights infringements.”[23] It is more than symbolic; it has the potential to place the legislatures and the judiciary at odds.[24]  But when read alone, the mechanism of section 33 seems to diminish the value of Charter rights, especially the risk of diminishing minority rights.  In contrast, the courts could be viewed as a necessary protector of minority rights and thus Canadian democracy, that is unachievable through debates among political parties alone.[25] 

The Canadian Courts have adopted the ‘living tree’ doctrine of constitutional interpretation recognizing this need for constitutional development.  First taken from the courts in Canada’s own interpretation of Lord Sankey in Edwards v Canada (AG), also known as the Persons Case 1929.[26]  According to Lord Sankey in the Edwards case, “the British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.”[27]    According to Professor Allen C. Hutchison and William Hanlon, Tree-Hugging: Constitutional Change and Political Progress:

“Rather than offer a practical manual for constitutional change, it simply provides a convenient, if important, theoretical justification for judges to keep constitutional law in step, albeit loosely and broadly, with the views and values of society.  Most significantly, for all its permissive and generous qualities, the living tree metaphor is beholden to whatever judges think are the views and values of contemporary society.  There is no serious attempt made to measure or gauge those views and values in any rigorous or systematic way.”[28]

The courts lack a clear interpretive guideline on how constitutional development is to be achieved.  This imperative recognizes that the courts were not held back by text alone but could mold the Constitution through an interpretive process, progressively adapting to what the courts deemed as new social demands.  In a positive way, the implementation of the ‘living tree’ doctrine is complimented by Canada’s principled approach to constitutional interpretation.  Together they re-enforce the idea that the Canadian constitution can conform and change to given circumstances.  Constitutional development means that the Constitution is read as having the ability to adapt to challenges to Canadian democracy. 

Section 33 of the Charter is the strongest hinderance to cooperation between the branches of government.  Legislatures may respond to unfavorable judicial ruling through amendments, revisions, or the strongest response being the invocation of section 33 of the Charter.  Arguably, when the constitution is viewed as a whole document; it’s likely that the framers’ intensions were to create a mode of dialogue between the judiciary and the legislature.  According to section 52 of the Constitution Act 1982, the Court ‘has the power to strike down any law that is inconsistent with it’.[29]  By the clear wording of section 52, the wording ‘any law’ would seem to indicate that the courts have the final say over Charter interpretation.  Joanna Baron’s article: The Constitutional Tug-of-War Between Politicians and Canada’s Courts Continues, the “Supreme Court of Canada has granted leave to English Montreal School Board, et al. v. Attorney General of Quebec, a monumental case that will seek to answer a seemingly novel question. Does the Charter of Rights and Freedoms’ section 33 the notwithstanding clause effectively shut down any judicial consideration on a given law’s constitutionality?  Or is it still fair game for judges to weigh in?”[30]  When sections 33 and 52 are read together, a possible interpretation was the promotion of dialogue between the branches of government.   In, English Montreal School Board, et al. v. Attorney General of Quebec (2025)[31], (the Supreme Court has not made its ruling yet importantly leave to appeal was granted) the province of Quebec pre-emptively invoked section 33.  By the Court granting leave, it sends the signal that the judiciary is ‘not stopped’ from rendering an opinion on the subject even though section 33 was invoked by the province[32].  In theory, an opinion that the Court will render may sway future public sentiment leading to a potential future compromise. There is some form of advantage to dialogue theory, as a possible interpretation of the Constitution, that some form of dialogue is still achievable between the branches of government even when section 33 in invoked.

In the past, the courts have interpreted the Constitution as recognizing the promotion of dialogue between the branches of government.  In a not-too-distant past, Quebec hoped to separate through a referendum from the rest of Canada where the court was called upon to answer if this was constitutionally possible to achieve unilaterally.  According to the court in the Secession Reference case, Canada’s “democratic institutions necessarily accommodate a continuous process of discussion and evolution, which is reflected in the constitutional right of each participant in the federation to initiate constitutional change.  This right implies a reciprocal duty on the other participants to engage in discussions to address any legitimate initiative to change the constitutional order.” [33]  The courts are recognizing that dialogue must take place between the branches of government in support of democracy.  It has the potential to alleviate public fears of judicial supremacy offering a middle ground to some of the contention between representative government and the judiciary, but they are not without flaws.[34]  Problematically, dialogue theory has difficulty in accounting for the potential that majoritarian support will belittle the importance of judicial review.

3.     Opposition to contemporary dialogue theory:

Appeals for dialogue are unable to discount that minority rights may ultimately be subject to the will of the majority.  Any protections provided by the courts of minority rights always have the possibility of being subjugated to the will of the majority by the invocation of section 33.  According to Rosalind Dixon April 2009, The Supreme Court of Canada, Charter Dialogue, and, and Deference:

“The primary democratic worry about judicial review under the Charter is that, when it comes to open-ended Charter guarantees, Canadian courts may adopt an interpretation that is directly counter-majoritarian in nature. While the Charter is not intended to be a purely majoritarian instrument, from a democratic point of view, the constitutional understandings that a majority of Canadians still have an important role to play in the interpretation of the Charter. Rights guarantees are open-ended and permit multiple reasonable interpretations-there is no objectively ascertainable, "correct" interpretation.”[35] 

In this sense, section 33 is not purely symbolic but anti-democratic.  The author recognizes a real threat to minority rights when the legislative branch invokes section 33 of the Charter.  Society can harbour deep feelings towards certain subject matter and with no rational platform allowing for meaningful discussions to continue, dialogue theory fails.  

The author proposes modifications to dialogue theory to overcome the anti-democratic potential of section 33.  It is suggested that the invocation of Section 33 has the potential power to stifle dialogue between the branches of government.  According to Rosalind Dixion,

“New dialogue theory holds that, while section 33 of the Charter will be important to dialogue, its role will tend to be largely background in nature. The most important function of section 33 will be to give the SCC greater incentive to adhere to a commitment to ex post deference.”[36]  

It is suggested that only way that section 33 is helpful to dialogue theory is if the courts ultimately defer to the legislature.[37] This further suggests, that future political debate between the political parties would continue, potentially, leading to change or a compromise.[38]  So, once public emotional backlash diminishes, dialogue will continue in the political arena with the influence of the court’s opinion.  Pragmatically, strong public sentiment will not shift overnight, suggesting continued future political debate where the court’s opinion is not viewed as diminished.  If the Judiciary is seen as a healthy participant in the democratic process, then the publics perception of the judiciary is strengthened.  This in turn strengthens the public perception of the functioning of their government and thus reinforcing their commitment to the designs of the Constitution.   

Conclusion.

The Canadian Constitution is worth the paper it is written on because it structures a dynamic relationship between democracy and rights protection.  Value orientated public perceptions of the workings of their government can be measured as a factor in evaluating the worth of the constitution.  Public perceptions of the unelected body of the judiciary are apprehensive by nature.  It is especially prevalent where Charter rights are at issue, stressing societies unification between majority and minority rights.  It is through dialogue and compromise, between the legislative and judicial branches of government, that offers the unity, broad acceptance, and support through the protection of inalienable rights—criteria famously articulated by former Prime Minister, Brian Mulroney.  There are pros and cons associated with dialogue theory, but for the shortness of this paper, it merits further exploration.  Public perception may fluctuate, particularly when judicial interpretations provoke controversy.  Yet it is precisely through structured disagreement, institutional compromise, and principled reasoning that constitutional legitimacy is maintained.  Both sections 33 of the Charter and 52 of the constitution Act of 1982 should not be viewed as simply symbolic but as mechanisms inserted within its framework in the promotion of dialogue between branches of government, parliamentary sovereignty and as an essence of our democracy.   The constitutional adaptation of a ‘living tree doctrine’ recognizes democratic social normative development that is complimented by the courts principled approach to constitutional interpretation.  With the courts support and recognition for continued democratic dialogue and social development, it enables a slow progression towards social progress. 

[1] The word Constitution and the Charter will be used interchangeably but this papers focus is on Charter rights that are distinguishable as part of the Constitution that outlines civil liberties.

[2] The words judiciary and courts will be used interchangeably in the paper.

[3] Janet Walker dissertation 2001 The Constitution of Canada and the Conflict of Laws(2001) at p-8 online https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1017&context=phd

[4] Ibid at p-8

[5] Citizens and society will be used interchangeably in this paper understood as representing the same meaning.

[6] (Attorney General) v. PHS Community Services Society (2011), a failure for government to provide health care and,Vriend v Alberta [1998] 1 S.C.R. 493, recognizing a limited scope of positive obligations when the government has already created legislation limiting an enumerated group

[7] By Marjory LeBreton Ottawa Contributed to The Globe and Mail (June 23, 2000) Mulroney and Meech  online https://www.theglobeandmail.com/opinion/letters/mulroney-and-meech/article22403630/

[8] Ibid

[9] Dworkin, Ronald, The Morl reading of the Constitution: The New York Review of Books March 21, 1996, at p 1/13

[10] Ibid at p 1/13

[11] Positivism in law rejects that the content of law depends on moral merit. Dworkin believed that law consisted of both rules and moral principles.

[12] Section 1 allows for a three-part test as to whether governments can at times infringe on these Charter rights when necessary to uphold the very values underlining these rights.

[13] Those like Peter hogg who was a supporter of dialogue theory finds that the legislative role is to respect Charter rights in the creation of statute, and it is for the judiciary to interpret their meaning See Hogg, Bushell and Weight, supra note 2 at 36 Roach “Common Law”

[14] Wolkenstein Fabio, Hans Kelsen on Constitutional Democracy: Cambridge studies in constitutional law Cambridge University Press 2026 at p 171

[15] Ibid at p 174

[16] Ibid at p 174

[17] Although later in Kelsen’s life as a constitutional judge himself agreed that constitutional law is an act of political morality.

[18]Leslie Green, The Concept of Law Revisited [Book Review of The Concept of Law, Second Edition, by H. L. A. Hart] 1997 at p-1687 online https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1770&context=scholarly_works

[19] pre-emptive/normalized uses of s 33 in Alberta, Quebec, Ontario/Saskatchewan 2023–2025

[20] This perspective is often a majoritarian viewpoint.

[21] As this suggests the unelected judiciary is defining Charter rights lacking the expectations of the citizens of Canada. So, citizens themselves have their own understanding of what these rights representation that can come in conflict with the judiciary’s interpretation.

[22] It provides the provinces with the power, to suspend for 5 years, Charter rights of section 2 and 7-15

[23] Adams, eric and Bower, Erin  Notwithstanding History: The Rights-Protecting Purposes of Section 33 of the Charter (dec 5 2025)  at P 139 online  https://www.constitutionalstudies.ca/wp-content/uploads/2023/12/05_ADAMS_BOWER.pdf

[24] See Quebec’s current Bill 21 2019 and its pre-emptive use of s 33

[25] Contention among the courts themselves should not be ignored that is why it is a hierarchical system.  This was evident in the case of Edwards dating back to the late 1800’s where ethe Supreme Court of Canada found that women were excluded from the plain wording of a clause in the Constitution, to be later overturned by the Privy council interpretation of what constituted ‘persons’ under the British North American Act or BNA act of 1867.

[26] What is interesting is that he looked back upon the North American Act 1867 or BNA Act and took a direct meaning from the text forming an ‘originalist’ interpretation of the Constitution.  This adaptive description of the Constitution as a “living tree” meant that it was not confined to the original textual interpretation.

[27] Allan C. Hutchinson and William Hanlon, TREE-HUGGING: CONSTITIONAL CHANGE AND POLITICAL PROGRESS at p 2

[28] Ibid at p 2

[29] Section 52 of the Charter and rights and freedoms.

[30]Baron, Joanna; The constitutional tug-of-war between politicians and Canada’s courts continues

(Jan 31 2025) online   https://thehub.ca/2025/01/31/joanna-baron-the-constitutional-tug-of-war-between-politicians-and-canadas-courts-continues/

[31] SCC English Montreal School Board, et al. v. Attorney General of Quebec (2025)

[32] What that opinion may be remains to be seen.

[33] https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1643/index.do

[34] Dialogue theory has different forms, and this paper does not suggest that the dialogue theory as express by Professor P Hogg is the correct one.  His theory states that court rulings on rights are often "provisional," allowing legislatures to respond by crafting new, often better-justified laws that still achieve policy goals while adhering to constitutional rights

[35] Rosalind Dixon The Supreme Court of Canada, Charter Dialogue, and, and Deference (April 2009) online https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1150&context=ohlj at p 237

[36] Ibid at p 254

[37] Ibid at p 254

[38] Possibly, this was a suggestion but not well thought out by the drafters of the Charter that during the 5-year sunset clause, political mindsets might change