Mind the Gap

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Friday 25 September 2020 saw Prof. Dr. baron André Alen, the former President of the Belgian Constitutional Court, reach emeritus status. Linked to this occasion a book in his honour appeared under the title
Semper Perseverans: Liber amicorum André Alen. In this blog series we give central stage to a number of the book’s contributors. In this post Dr. David Haljan considers constitutional gaps and the way (not without peril)  in which one such gap on its own functioning was filled by Canada’s Supreme Court.

Mind the Gap

Gaps of all sorts are commonplace in written constitutions. Indeed, a single instrument cannot reliably and effectively micro-manage all possible situations, although some constitutions seem intent on being the exceptions to prove the rule (e.g. Brazil). Nor do current social and political realities neatly fit the after-the-fact, artist’s impression of them as drawn from the historical instrument without the application of substantial ideological re-engineering, despite the claims of “originalism” (and perhaps even of “textualism”) to the contrary. Nor is it practical to invest energy in continually revising constitutional minutiae, instead of counting on general principles, good sense, and goodwill.

Hence some gaps exist because of the general, abstract, or imprecise language used. Public law and political types vigorously debate whether those gaps ought to be filled by courts or by legislatures, and in what form, and to what degree. Current practice seems to favour the courts, where no structural change to the constitution is implicated. The easy and obvious example here is the judicial detailing given to general, abstract formulations of rights (whether in the ECHR, a national constitution, or other instrument) in the constitutional review jurisdiction pervasive in modernised constitutions. Other gaps exist, however, because of an express or implied consensus amongst the drafters of the constitution concerned to leave any decision until later or even never at all. When that constitutional issue does arise later, its resolution likely engages the very bricks and mortar of the constitutional structure itself. Who fills those gaps, and how, are therefore critical issues.

The Constitutional Footing of the Supreme Court of Canada

Take for example the very public spat in 2014 in Canada over the then federal Conservative government’s choice to fill one of the three places on the Supreme Court allocated to a Quebec judge or advocate . Unlike Belgium’s recent hiccup with an Ecolo candidate failing in January 2020 to gain Senate approval for a seat on the Constitutional Court, the Canadian appointment was challenged before the courts and ended up (quite intentionally) before the Supreme Court of Canada for decision, in the Supreme Court Reference. The immediate question turned on whether appointment required current membership on the relevant Quebec courts or with the Bar of Quebec, or whether membership in the past sufficed. To bolster its position, the federal government had passed an interpretation amendment confirming its preference for the latter.

Quite apart from the circumstances surrounding the appointment and judgment itself (by this time, moreover, the candidate had taken his seat on the Court), the heart of the case was the Court’s standing as a constitutionally prescribed – and protected – institution. Unlike the Belgian Constitutional Court’s express constitutional footing and special majority status of its constitutive statute, the Supreme Court was nowhere explicitly entrenched in Canada’s Constitution Acts 1867-1982. It was not an institution recognised in the Constitution Act 1867, like the Queen, Parliament, the provinces, and even judges and (provincial) superior courts (see s.101 Constitution Act 1867). It was created in 1875 by ordinary federal Act and this constitutive statute did not appear on the list of ‘Constitution Acts’ under the Constitution Act 1982 (see Schedule, Constitution Act 1982). Changes to the ‘Constitution of Canada’ in relation to the Court were clearly caught by the Constitution Act 1982, but this did not extend to changes to the Court itself (ss. 41(d) and 42(1)(d)). Thus the Supreme Court of Canada, the court of final appeal exercising signal criminal, civil, and constitutional jurisdiction at the apex of the entire Canadian legal system since 1949, apparently existed without any clear constitutional anchor or protection. A serious constitutional gap, to say the least.

Filling Gaps by Constituting Institutions

This politically contested judicial appointment led to the Court entrenching itself in the Canadian Constitution as an essential constitutional actor. The Court did not fill a ‘mere’ interpretative gap. Rather it filled a gap in institutional organisation, in what the Constitution and the pouvoir constituant had prescribed as the constitutional institutions.

Thus, the Court declared that it had ‘evolved’ from a mere creature of statute into an essential constitutional institution. By 1949 the Court had fully succeeded the UK Privy Council and thereby inherited the central juridical role in the constitutional structure. It assumed the essential constitutional jurisdiction of resolving federal-provincial disputes, declared (perfunctorily) by the Court a specifically juridical role necessary and implicit in every federation. Moreover, the Court was central to the function of the legal system in each province and for the development of a unified and coherent legal system overall. The Court thereby became a ‘key matter of interest’ to Parliament and the provinces. The Court’s mention in the Constitution Act 1982 did not confer constitutional status on the Court, but rather simply recognised and reinforced the Court’s already secured constitutional position. That is, the Constitution Act 1867 had already been silently, implicitly amended by ‘evolution’. Hence the Court, its composition and essential elements formed part of the ‘Constitution of Canada’ (written and unwritten). Any amendments thereto were therefore subject to the constitutional amending procedure and could not just be implemented through a federal Act, interpretative or otherwise.

To arrive at such a decision reflects a significant change in the approach to and interpretation of a constitution, including the Canadian. Through its decision, the Court added an evolutionary doctrine for institutions to existing ‘general principles’ resulting in a now exhaustive framework of government, a ‘constitutional architecture’ (on ‘constitutional architecture’, see the 1998 Québec Secession Reference). It then recast the Constitution Acts 1867 to 1982 to serve as documentary evidence seated in that prior, idealized constitution framework, one which mandates certain outcomes, whether or not the text actually contemplates or allows that. The Court’s constitutional status was acquired not by operation of a specific grant, not by express investiture, not by necessary implication from extant instruments, but rather by prescription of idealised general principles. The Court’s role in Canada’s constitutional order after 1949 corresponded with the functions and properties of a constitutional figure prescribed by an idealized conception of ‘a constitution’. The grant of the Court’s constitutional authority and stature originates out of the normative framework set by an idealized constitution – one which the Court sets and manages – and not by any actual act of constitutional will.

Dworkin’s Ghost

The danger to this gap-filling approach is clear. Rather than reading constitutional principles in function of constitutional text and practice, that text and practice must now be read in function of those anterior principles. Under this revised approach constitutional instruments and practices are no longer the ongoing determinative expression of polities, and it arguably elevates the Court to the level of a pouvoir constituant. While the moment of expression of democratic will in constitutionalising values and powers might retain its temporary, fluid character, that democratic act is nevertheless corralled within a larger, controlling normative framework of morality and ideology managed by the Court. A constitution becomes merely an aspirational document, aiming at the best, most perfect instantiation of those normative principles. Howsoever we see those principles being set, a ‘bevy of Platonic guardians’ (B. Learned Hand, The Bill of Rights (Atheneum, 1964) 73) is there to school us on an objective political morality and correct our errors and missed directions.

Dr. David Haljan is a Visiting Research Fellow with the Leuven Centre for Public Law.


& David HALJAN, "Mind the Gap", Leuven Blog for Public Law, 5 March 2021, https://www.leuvenpubliclaw.com/mind-the-gap (geraadpleegd op 29 July 2021)

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