*Editors’ Note: This post is part of the ‘Unwritten Constitutional Norms and Principles Blog Series’*

Introduction

Who gets to interpret and articulate unwritten constitutional principles (UCPs) or constitutional silences? In answering that question, we often assume that the key institutional actors are either the courts and Parliament (or both, depending on one’s position). However, such assumptions often lead us to exclude both the role of the executive and ordinary citizens from constitutional interpretation. Drawing primarily on Canadian law, with some examples from the UK, this blog post aims to elucidate the way in which citizens articulate UCPs as part of their interactions with the administrative state, and vice-versa. Enabling both administrative decision-makers and citizens to interpret UCPs, I suggest below, provides a valuable opportunity for the public to engage with, and breathe life and meaning into, UCPs in the context within which most people are likely to encounter state actors – with administrative decision-makers.

Administrative Interpretations of Unwritten Constitutional Principles

Ever since Lalonde v Ontario, administrative actors in Canada have a duty to take UCPs into account as interpretive aids when exercising discretion or interpreting questions of law. In Lalonde, the Commission de restructuration des services de santé closed a hospital that provided healthcare primarily to the minority Francophone community in Ottawa. The court set aside the decision on the grounds that the Commission had not engaged with the UCP of protection for linguistic minorities. The court stated at para 184:

The Commission failed to pay any attention to the relevant constitutional values, nor did it make any attempt to justify departure from those values on the ground that it was necessary to do so to achieve some other important objective.

Furthermore, the court was clear that while the Commission was entitled to deference, where decisions impinged on fundamental Canadian constitutional values, the Commission needed to offer a justification for the decision. In this case, the Commission failed to give “serious weight and consideration to the importance of the [the hospital] as an institution to the survival of the Franco-Ontarian minority” (para 187).

The decision reads similarly to the UK case Miller II. In this case, Prime Minister Boris Johnson’s decision to prorogue Parliament at a critical Brexit juncture was set aside because he failed to provide a “reasonable justification” for preventing Parliament from carrying out its constitutional functions (at para 49). As with the Commission in Lalonde, the Prime Minister had failed to take into account the interests of Parliament and provide adequate reasons as to why frustrating the unwritten principles of parliamentary sovereignty and executive accountability was justifiable. The main consequence of both Lalonde and Miller II is that the scope of executive power is ultimately constrained by UCPs. However, a correlated consequence is that executive decision-makers are also empowered to engage in an interpretive exercise about what those constitutional principles mean. In other words, these cases enable executive decision-makers to engage with constitutional principles and demonstrate that engagement via the reasons for their decisions. This empowers administrative decision-makers to fill potential gaps in the Constitution and potentially create an internal jurisprudence around constitutional principles. These interpretive choices must also be justified – to interested citizens and to the court as part of a review process. What this suggests is that when executive actors articulate constitutional norms, they must do so in a relational fashion, by providing reasons to other actors and, particularly in Canadian law I will argue below, to and with citizens.

Standard of Review

In Lalonde, the court declined to decide whether the correctness or reasonableness standard of review would apply, commenting only that the Commission’s decision would fail to survive even the most deferential standard (at para 186). It has not been entirely clear since whether the correctness or reasonableness standard will be applied to administrative interpretations of UCPs. While on the one hand, the court stated recently in Vavilov at para 17 that constitutional questions will be dealt with on a standard of correctness, the methodology of the Lalonde case, with its focus on deference and justification, is better aligned with reasonableness review.

Further, Lalonde’s methodology, which primarily asks administrators to take into account constitutional values, reflects the Doré framework, which likewise asks administrators to take into account Charter values and explain why a chosen balance between Charter rights and competing objectives is reasonable. Courts should defer to administrative interpretations of the Charter because, as McLachlin J stated in Cooper at para 70, “[t]he Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the people.  All law and law-makers that touch the people must conform to it.” One consequence of expecting administrative decision-makers to engage with the Charter is that it also encourages citizens to rely on, enforce, and engage with, Charter values. Individuals can do so primarily in the context within which most people encounter the state – via administrative decision-makers. The Doré framework thus not only invites administrative actors to imbue their decisions with Charter values, but it also invites citizens to engage with their rights, likewise fleshing out the content, meaning and purpose of that right in their submissions to the administrative decision-maker.

The idea that the Charter “belongs to the people” surely also applies to the Constitution in general and particularly to UCPs. As implied by Rand J in Roncarelli v. Duplessis, UCPs reflect our most basic commitments as the “fundamental postulates” (p. 142-144) implicit in the very nature of a constitution, touching upon the core of what it means to live in the Canadian constitutional order as citizens. As such, citizens, in their interactions with administrative decision-makers, ought to be able to articulate the content, purpose and application of those fundamental constitutional principles. In my view, reasonableness review, as formulated in the Vavilov framework, would assist in making that latter objective possible and should be preferred over correctness review.

The Vavilov Framework and the Role of Citizens

Since Vavilov, the court conducts reasonableness review primarily by assessing the reasons and justifications given by the administrative decision-maker. Accordingly, the valid exercise of administrative power depends on the transparency and intelligibility of the reasons provided, and the court in Vavilov at para 86 explicitly noted that an administrative actor’s “legal and democratic authority” emerges via a “process of public justification.” In other words, an administrative decision-maker’s authority, and the administration’s “institutional legitimacy,” (para 74) is constituted through a reason-giving process – a reason-giving process that crucially is conducted with citizens. This is because, as part of this reason-giving process, the administrator must adequately respond to the submissions made by the parties such that the resulting reasons provided by the administrator consequently “reflect the arguments made by the parties” (Scarborough Health Network at para 28). In this framework, therefore, citizens are invited to interpret and engage with the statutes and norms that apply to their situation, and administrative decision-makers are required to listen to, and respond to, those interpretations. Consequently, an administrative decision-maker’s legal authority is something that is created collaboratively: partially by Parliament via statutory authorization, partially by the administration itself via the reasons for its decisions, and, significantly, by the legal subject whose submissions to the agency must figure productively in the administrator’s reasons.

As such, if Lalonde-type cases were treated under the banner of post-Vavilov reasonableness review, as I believe they should, then administrative decision-makers would not only be required to provide reasons that engage with UCPs (as per Lalonde), but where relevant, these reasons would also need to engage with the citizen’s interpretation of those UCPs. Thus, if citizens were to put forward certain interpretive viewpoints about the scope of a particular UCP, then these interpretive viewpoints will also need to feature in administrative decisions. Over time, therefore, citizen interpretations will come to affect what those principles mean in certain interpretive contexts. In that sense, we can understand citizens, in consort with administrative decision-makers, as engaging in constitutional decision-making and authoring and articulating the scope and meaning of UCPS.

Challenges and Critiques

Some critics, particularly those critical of the Doré framework, may feel uncomfortable with a similar framework being extended to UCPs, and believe instead that correctness review should apply. As noted above, in Vavilov the court found that constitutional questions should be reviewed on a standard of correctness. The court said at para 53 this is because (i) the rule of law requires “a final and determinate answer from the courts” and (ii) it is the role of the judiciary to interpret the Constitution.

However, according to the Supreme Court in Toronto City at para 59, UCPs are “nebulous” and “highly abstract,” arguably making it very difficult for courts to provide one final and determinate answer to a question involving a UCP. Moreover, unlike interpreting certain sections of the Constitution, which perhaps requires knowledge of jurisprudence and a theory of constitutional interpretation, unwritten principles are partially “principles of political morality” (Toronto City at para 49) and may therefore legitimately be interpreted by the democratic branches of government. The abstract and political nature of UCPs is why the majority in Toronto City suggested that courts ought to take a step back from interpreting UCPs, arguing these issues are best left to the “ballot box” (para 59). While administrative decision-makers are not elected via the ballot box, they are part of the executive branch and are tasked with implementing policy. They are also a forum of democratic accountability because the culture of justification presupposed by the Vavilov framework provides a valuable opportunity for citizens to engage with UCPs, breathing life and meaning into them. Furthermore, in a diverse society, perhaps we do not want one final and determinate interpretation of a UCP. Citizens may hold different, yet valid, understandings of core constitutional values, and administrative decision-makers will be able to adapt and apply those different meanings in an ever-changing world more expeditiously than courts.

Finally, Lalonde-like cases are rare, and as such, the idea that there will be multiple conflicting interpretations of UCPs, creating some kind of serious rule of law issue, is perhaps exaggerated. On the other hand, all administrative decision-making implicitly involves the application of two key unwritten principles, namely, parliamentary sovereignty and the rule of law. While administrative decision-makers may not explicitly say they are drawing on these principles when interpreting their enabling statutes, decision-makers must always have in mind legislative intent (a concern of parliamentary sovereignty) and the way in which the decision might impact the individual (a rule of law concern). Engagement with these principles is thus unavoidable and ubiquitous. Perhaps we should therefore accept that administrative decision-makers do, and indeed must, be entitled to interpret them.

Conclusion

To summarize, administrative decision-makers in Canada are both constrained by, and empowered to engage with, UCPs. If those interpretations were reviewed on a standard of reasonableness, as I contend they ought to be, citizens would likewise be empowered to articulate and interpret UCPs and see their interpretations figure productively in the decision-maker’s reasons.

It is perhaps worth recognizing that the foregoing analysis suggests that both the legal authority and legitimacy of administrative actors and the constitutional authority and legitimacy of administrative actors, rests upon a reason-giving process. Arguably administrative decisions are imbued with constitutional legitimacy, not because they align with the court’s idea of what a UCP means (as they would be in correctness review), but because a particular interpretation of those principles has been justified by officials through a responsive and relational reason-giving process in collaboration with citizens. This has, I cautiously add, potential implications for the debate on constituent power, for it suggests that the constitutional legitimacy of state institutions rests less upon a pre-legal decision to enter a legal regime, and more through, as Mark Walters puts it, a circular, ongoing interpretive process – a process that the administrative law angle suggests also involves citizens. Constitutional legitimacy thus emerges temporally and relationally through ongoing justification about the use of state power to citizens – citizens whose interpretations and beliefs about the use of that power must be listened to and responded to, and hence become partially constitutive of the constitutional and legal authority held by officials.

Accordingly, I will end by noting that administrative law’s approach to UCPs reveals two important things. First it reveals that alternative actors do and should have a role in interpreting constitutions, including UCPs. Second, it also suggests that citizens, in their dealings with the administrative state, contribute to the generation of the constitutional legitimacy of officials.

Joanne Murray, Postdoctoral Fellow at the uOttawa Public Law Centre, University of Ottawa Faculty of Law (Common Law Section), Ottawa, Ontario, Canada

(Suggested citation: J. Murray, ‘Administrative and Citizen Interpretations of Unwritten Constitutional Principles’, U.K. Const. L. Blog (21st May 2024) (available at https://ukconstitutionallaw.org/)