Draconian But Not Despotic: The 'Unwritten' Limits of Parliamentary Sovereignty in Canada
Bibliographic record
Abstract
More than a decade after the Quebec Secession Reference, the issue of whether unwritten constitutional principles may be applied as free-standing limits on legislation remains a contentious issue. Interestingly, academics and judges seem to be approaching the issue from different perspectives. Whereas scholars have adopted an American focus on the potential dangers to the legitimacy of judicial review that are raised by judges departing from the constitutional text to identify and apply constitutional principles as limits on legislation, Canadian judges appear to be adopting a approach that recognizes the legitimacy of unwritten principles but favours the principle of parliamentary sovereignty above other principles. This article argues that viewing decisions of Canadian courts through the lens of British common law constitutionalism provides a new perspective on some of the most important appellate and Supreme Court decisions that have considered the application of unwritten constitutional principles as limits on legislation. It suggests that while these decisions may appear (on their face) to limit the scope of the application of unwritten constitutional principles, the decisions actually include the building blocks for an approach that ultimately recognizes the potential for unwritten principles to limit legislation that substantially interferes with the democratic process. The article proceeds beyond the parameters of the existing debate concerning the role of unwritten principles in Canadian constitutional law by providing a detailed analysis of several key cases from a new perspective. In so doing it builds a new framework for understanding the Supreme Court’s approach to this issue.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.004 | 0.013 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.002 | 0.002 |
| Science and technology studies | 0.028 | 0.014 |
| Scholarly communication | 0.010 | 0.002 |
| Open science | 0.002 | 0.003 |
| Research integrity | 0.005 | 0.007 |
| Insufficient payload (model declined to judge) | 0.004 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".