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In a series of controversial decisions in the last thirty years, including the Reference re Secession of Quebec rendered in 1998, the Supreme Court of Canada has given full legal force to unwritten constitutional principles. These principles, which bind both courts and governments, may not only guide the interpretation of the constitutional text but constitute the premises of constitutional arguments that culminate in "the filling of gaps in the express terms of the constitutional text" and in certain circumstances, "give rise to substantive legal obligations … which constitute substantive limitations upon government action." Conferring such a normative force to unwritten constitutional principles raises a series of theoretical, epistemological and normative questions. What is the status of these principles? What is their source or foundation? How may they be determined? What is the foundation of their legitimacy? What right does the judiciary have to use them to create substantive legal obligations? The purpose of the text is to consider these questions. In the first part the author recalls how the Supreme Court of Canada apparently conceived the status, foundation and legitimacy of unwritten constitutional principles. After underlining the limits of this conception he maintains, in a second part, that the status, foundation and moral legitimacy of unwritten constitutional principles rest on two fundamental arguments: the "rule of law as justice" and the "general legitimacy of the judicial review of government action." The first argument states that unwritten constitutional principles are constructed from a reading of the texts, political history and judicial interpretations which presuppose that constitutional law embodies and must embody a certain conception of political justice. The second argument states that the courts are morally authorized, indeed obligated, by virtue of a basic tenet of political morality, to control the legitimacy of all the government acts they are asked to apply within the framework of their official duty. This argument implies the judicial recognition of "prior standards relating to the legitimacy of government acts (laws, policy decisions)." The main argument is that unwritten constitutional principles derive their legal status, foundation and moral legitimacy from this set of prior standards relating to the legitimacy of government acts, as understood and applied by the courts. [ABSTRACT FROM AUTHOR]

I argue that the interpretation of Section 15 of the Canadian Charter of Rights and Freedoms expressed by the Supreme Court in R v. Kapp is not entirely satisfactory. While the Court assumes that Sections 15(1) and 15(2) work together to combat discrimination, I show that many affirmative actions programs might be discriminatory within the meaning of Section 15(1). Moreover, I argue that the conflicts are internal to the concept of substantive equality itself. They partly reproduce the tensions between a politics of recognition and a politics of distribution. I suggest that such conflicts must be resolved in accordance with the principle of proportionality. Finally, I suggest that programs designed to ameliorate the conditions of Aboriginal people might find better ground in the concept of "aboriginal rights." [ABSTRACT FROM AUTHOR]

Many liberals cannot help distrusting deliberative democracy theory. In their view, the theory offers no sufficient guarantee that the outcomes of democratic deliberation will be respectful of individual interests generating what they conceive as basic moral rights. The purpose of this text is to provide one argument showing that liberal rights are sufficiently protected within deliberative democracy theory. The argument does not rest on the idea of moral rights or material justice. It rests on the conditions of legitimate law deliberative democracy theory presupposes, namely, the conditions that make concrete the idea of legitimacy as “actual public justification.” [ABSTRACT FROM AUTHOR]