On the IACL-AIDC Blog, Professor Lynda Collins (Ottawa) suggests that “ecological sustainability [should be recognized] as an Unwritten Constitutional Principle (UCP)—a foundational, binding norm to provide guidance to courts and legislators as we navigate the difficult waters of our current environmental crisis.” This argument also appeared in a joint article by Prof. Collins and (now Justice) Lorne Sossin, where the authors link this nascent principle of environmental sustainability to the Constitution’s apparent status as a living tree. In short, without the UCP of ecological sustainability, or whatever the principle is defined as, “the Constitution would become ‘self-defeating’; to extend the metaphor, it would be a dying tree rather than a living tree” .
I strongly disagree with the thrust of both the blog post and the article. While environmental sustainability is a noble objective, and I commend the authors for saying so, interpretation of legislation or assessment of the legality of discretionary decisions cannot be driven by our own personal policy preferences (Hillier, at para 33) . Simply because environmental sustainability is a good idea does not make it a constitutional mandate. Accepting it as such would continue a dangerous trend in constitutional law—a desire to transform the Constitution into a vessel for popular modern policy objectives, thereby making it a document of majoritarian rule rather than a counter-majoritarian restriction on governmental action.
I first wish to show why environmental sustainability cannot be a UCP. Then I assess the dangerous implications of recognizing such a principle.
For a UCP to be recognized by a court, it must meet general certain criteria. In the Quebec Secession Reference, at para 49, the Court generally described these criteria as follows:
Behind the written word is an historical lineage stretching back through the ages, which aids in the consideration of the underlying constitutional principle. These principles inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based….These defining principles function in symbiosis.
But these principles are not free-standing licences for judges to read-in modern “values” into the Constitution that is designed to be resistant to change. In fact, the principles are institutional or structural in nature. They “inform and sustain the constitutional text…” (my emphasis). Consider some of the commentary from the Quebec Secession Reference:
These supporting principles and rules, which include constitutional conventions and the workings of Parliament, are a necessary part of our Constitution because problems or situations may arise which are not expressly dealt with by the text of the Constitution. In order to endure over time, a constitution must contain a comprehensive set of rules and principles which are capable of providing an exhaustive legal framework for our system of government. Such principles and rules emerge from an understanding of the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning .
The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scopes of rights and obligations, and the role of our political institutions .
Consider also the Court’s comment in the Patriation Reference, at 874:
[The Constitution of Canada includes] the global system of rules and principles which govern the exercise of constitutional authority in the whole and in every part of the Canadian state.
These comments are clearly related to the role of unwritten principles in interpreting textual ambiguities in the constitutional text, which itself is designed to set out the institutional capacities of the state. The goal is to provide a “legal framework for our system of government.” This restriction means that unwritten constitutional principles, to be recognized, must bear some “vital” relationship to the constitutional structure and the history. These are not freestanding policy preferences: indeed, the Court said as much in the Quebec Secession Reference, when it opined that “the recognition of these constitutional principles…[cannot] be taken as an invitation to dispense with the written text of the Constitution” .
Some of the principles recognized thus far reflect this theory of unwritten principles as central to structural or textual concerns. Take, for example, federalism. A federal structure is established by ss.91-92 of the Constitution Act, 1867. Federalism, then, is “inherent in the structure of our constitutional arrangements” (Quebec Secession Reference, at para 56, my emphasis). Federalism responds to “underlying social and political realities” that are implicitly reflected in the “diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction” (Quebec Secession Reference, at paras 57-58). The limiting principle to all of this is the use of an unwritten principle to provide meaning to unstated assumptions or ambiguities inherent in the text or structure of the Constitution. Unwritten principles are not at-large.
So, in all of this, where does ecological sustainability stand? For Collins, either of “ecological sustainability,” “respect for the environment” or “environmental protection” “…meets all of the criteria the Supreme Court has set out for “Unwritten Constitutional Principles.” This is because—picking up on language in the Quebec Secession Reference—sustainability is the “lifeblood” of the Constitution, and a
“vital unstated assumption underlying the Canadian state.” Historically, Collins relies on various documents that show that sustainability is an unwritten constitutional principle. The Charter of the Forest (1217) apparently “guaranteed to British subjects rights of access to vital natural resources” and under Roman Law, the Justinian Code enshrined a version of the public trust doctrine. The Supreme Court itself has recognized that the environment is an important fundamental value (see British Columbia v Canadian Forest Products).
But there is a problem with all of this. It is one thing for environmental sustainability—whatever that means—to be a fundamental societal value. But what is the fundamental structural link back to the Constitution? One does not appear in either Collins & Sossin’s article or Collins’ blog post. As a legal matter, environmental sustainability appears separate and apart from fundamental institutional features that are either a part of British Westminster parliamentary democracy, or are otherwise central to Canada’s particular legal arrangements. Environmental sustainability may be a bedrock societal principle, but whether it is fundamental to the Constitution—which is not necessarily co-extensive with “society,” whatever that is—is a completely different question altogether.
Of course, one might say that ecological sustainability is the basic starting point for any society with a Constitution. That is, it is so fundamental that without it, there would be no world to begin with, hence no Constitution. This argument appears absurd to me, and though Collins seems to make it at some points, it never appears as a full-fledged contention—probably for good reason. For one, the argument as taken would make “ecological sustainability,” a goal without any limiting principle, the dominant organizational principle of the entire society. This would be on the assumption that without ecological sustainability, we’d all die. While protecting the environment is an admirable and necessary goal, no one would suggest that it is a goal to be achieved at all costs. Certainly regulators would not accept this proposition because regulation often involves an eclectic mix of performance standards, design standards, and other incentives that might delay the accomplishment of pure and complete “ecological sustainability.” And yet no one would deny that these measures are somehow unconstitutional because they are not sufficiently strong command-and-control regulation. The unlimited scope of the authors’ nascent principle is a significant problem for its own sustainability.
But more importantly, the Constitution could still exist in a world ravaged by climate change. And that is the key distinction between the principle of ecological sustainability and the other so-far-recognized unwritten principles of constitutional law. The other principles are essential to the workings of the Constitution as such—and I mean this in the most strictly construed manner possible. The Constitution could not exist in any meaningful way without these principles, such that they are “vital” to its operation. Federalism gives life to the textual division of powers. Respect for minorities supports federalism. The Rule of Law is fundamental to any constitutional system. Ecological sustainability is an admirable goal to be achieved by legislatures, but it is not related to the fundamental architecture of the Constitution, such that the Constitution (not society more generally) could continue to work without it. In fact, situations of climate emergency might be the most apt circumstances for the Constitution to work its magic.
I want to close by outlining some of the pernicious legal and practical effects of the sort of argument advanced by Collins and Sossin. On the legal front, the correlation that the authors draw between “ecological sustainability” and the “living tree” doctrine continues to prop up this dying metaphor as a doctrine of constitutional law. Take the authors’ footnote 70, which outlines this tenuous connection in the context of the Quebec Secession Reference;
Note the recurrence of biological language in this passage (“symbiosis,” “lifeblood,” “living tree”). This language arguably reflects an implicit understanding that all our human structures depend on our biological survival. In this sense there is no principle more fundamental than that of a healthy environment.
This footnote, more than any other argument I’ve seen, illustrates at least one problem with the living tree mode of thinking. Not only is that mode completely inconsistent with the overall perspective in the Persons Case, in this context, it allows enterprising scholars to draw connections and make arguments that are based primarily on the status of sustainability as an ideal policy goal. But that is not the concern of the Constitution, properly interpreted. The living tree is a constitutional aberration, not a constitutional doctrine.
And courts have been increasingly concerned with preventing judges—let alone scholars—from pouring their preferred policy outcomes into the Constitution. I cited Justice Stratas’ comments in Hillier, above. But consider also his opinions in Williams and Cheema, where the same principle was used to the same effect in the context of statutory interpretation. We always have to be on guard for the imposition of one’s personal policy preferences into the law, when those policy preferences do not represent the duly-enacted law of the responsible legislature. How would the people who believe in environmental sustainability like it if those on the opposite side of the spectrum sought to impose a principle of “resource development” in the Constitution, tying it to tenuous constitutional signals like the fact that the federal government has the power under s.91(2) to regulate trade and commerce? The question needs no answer.
Practically, it continues to be my view that there are certain things that are best addressed and constitutionally assigned to legislatures—not courts. Courts are not designed to vindicate the policy goals of the moment. And, for those sympathetic to the idea that environmental sustainability is a fundamental value of Canadian society, it would seem odd to suggest that courts in the adversarial system should be the ones to vindicate that value. Instead, wide study and a nuanced regulatory response seem to be the best options from a practical perspective. And yet the blunt force of an unwritten constitutional principle—that remains undefined, unclear, and unhelpful—emerges as the regulatory response in Collins and Sossin’s article.
Clearly, the environmental crisis needs a better answer.