Constitutional Exegesis, Animating Principles, and City of Toronto

In Toronto (City) v. Ontario (Attorney General), the Supreme Court of Canada considered the role and function of “unwritten constitutional principles” in Canadian constitutional law. A majority of the Court concluded that these principles cannot, on their own power, invalidate state action as unconstitutional; the minority reached the opposite conclusion. In this case comment, we seek to demonstrate that much remains for the Court to consider regarding the role and function of these principles. To start, we suggested that the term “animating” better captures their role and function than the term “unwritten”. It is no exaggeration to say that animating principles are the lifeblood of the Canadian constitution, since these principles help to render the constitutional text coherent and cohesive. Moreover, some of these so-called “unwritten” principles are, in fact, evinced by written provisions of the constitution. Although largely concurring with the majority, we submit that the role and function of these principles will benefit from nuanced treatment in future cases. We agree that the text must always be our starting point in constitutional interpretation, but nevertheless conclude that, in certain cases, animating principles can and should play a determinative role in the outcome of constitutional litigation.