Canada: Nova Scotia / New Brunswick / Law Low‑importance

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Law Low‑importance

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Is this still good law following Toronto (City) v Ontario (Attorney General)?[edit]

I find this case hard to square with Toronto v Ontario with respect to unwritten constitutional principles (UCPs) and have been unable to find any commentary on this point, so I figured I would ask here.

General finding of Toronto v Ontario: UCPs are only an interpretive aid to the written constitution, or to be used to fill structural gaps in the constitution. Neither case allows UCPs to be used as an independent basis for striking down legislation.
General finding of New Brunswick Broadcasting Co v Nova Scotia: A specific parliamentary privilege was found to be a UCP. As a valid part of the constitution, it could not be overridden by the written constitutional charter (note: jurisprudence on UCPs was still young at this point, it wasn't yet specifically termed a UCP, but it was specifically referenced as such in Reference re Secession of Quebec at para 52).

Basically, as far as I understand it, Toronto v Ontario subordinates the unwritten constitution to the written one, while New Brunswick Broadcasting Co claims equal weight to the written and unwritten constitution.

Considering just Toronto v Ontario 's finding of UCPs not being capable of invalidating legislation doesn't necessarily put it at odds with New Brunswick Broadcasting Co, since no specific legislation invalidated there, rather unwritten parliamentary privileges were sustained against a Charter infringement claim. However, Toronto v Ontario's subordination of UCPs seems to really eviscerate the internal logic used in New Brunswick Broadcasting Co. If UCPs can't even be used to invalidate legislation, then how did New Brunswick Broadcasting Co. manage to use a UCP to wall off a part of the written Constitution? Especially since according to Toronto v Ontario, the written Constitution has the utmost priority, so how did an unwritten principle have that much power?

Perhaps telling is that the Majority in Toronto v Ontario goes through quite a few precedents involving UCPs in order to explain how previous precedent is consistent with the present decision, with the notable exception of this case on which it was silent and completely unreferenced. The case was however cited by Abella J's minority dissent.

So, is anyone aware of any academics or legal professionals having written specifically on the tension of these two cases?

Thanks, DPenner1 (talk) 04:51, 9 February 2022 (UTC)[reply]