Unwritten Constitutional Principles in Canada: Genuine or Strategic?
Bibliographic record
Abstract
Culminating with the Quebec Secession Reference (1998), the Supreme Court of Canada identified a number of unwritten principles that it described as the ‘lifeblood’ of the Constitution – they ‘infuse our Constitution,’ they wrote, and ‘breathe life into it.’ Having a ‘powerful normative force,’ they even could give rise to ‘substantive legal obligations.’ Since then, the Supreme Court has curiously retreated from this stance, preferring to rely on the written constitution and declining to consider unwritten constitutional principles as altering those substantive commitments. This trend line was most clearly on display in Quebec v. Canada (2015), where the Court resisted having the unwritten constitutional principle of cooperative federalism constrain exercises of unilateral federal authority. Significantly, the three civil law justices from Quebec jointly issued dissenting reasons, having the support of a number of scholars from within Quebec. The Court’s behaviour indicates that the justices were not serious about the role of unwritten constitutional principles going forward. The paper argues that the unwritten constitution was developed in the Secession Reference as a response to legitimacy concerns then facing the Court, which are no longer present. Judges and scholars from Quebec mistook these signals as genuinely novel legal developments rather than strategic responses designed to get the Court out of a jam.
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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 | 0.005 | 0.015 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.002 | 0.004 |
| Science and technology studies | 0.025 | 0.023 |
| Scholarly communication | 0.016 | 0.003 |
| Open science | 0.002 | 0.003 |
| Research integrity | 0.005 | 0.007 |
| Insufficient payload (model declined to judge) | 0.006 | 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".