Unwritten Principles and Quebec Secession

Professor Mullan delivered the 2002 Rand lecture. His lecture was entitled "Underlying Constitutional Principles: The Legacy of Justice Rand". It is a comprehensive and excellent analysis of this development in Canada constitutional law and a strong defence of it. It can be found here.

Here is another article on this topic. It adopts an entirely different position. It is also excellent. It is Professor Jamie Cameron's, "The Written Word and the Constitution's 'Vital Unstated Assumptions'". The paper is going to be published in a book, Essays in Honour of Gérald-A. Beaudoin. The article can be found here (Word) and here (HTML).

In this class, we will examine the recent unwritten principles constitutional jurisprudence.  Among other things, we will be debating and discussing these propositions: 

-- "The unwritten constitutional principles jurisprudence is a welcome development in Canadian constitutional law"

-- Conduct a legal analysis of the following scenario: 53% yes vote in Quebec in favour of separation, Quebec introduces a separation Bill. What then ensues? What challenges? What legal tactics and proceedings might eventuate? Consider, among other things, how the Clarity Act, S.C. 2000, c. 26, might work.

Reference re Secession of Quebec, [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385, 228 N.R. 203, 55 C.R.R. (2d) 1.

For the current status of unwritten principles, consider the following:

Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3.

British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473.

British Columbia (Attorney General) v. Christie, 2007 SCC 21.

Other cases you might consider:

New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 (reference to unwritten principles)

Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., [1997] 3 S.C.R. 3 (unwritten principle of judicial independence recognized)

Ontario English Catholic Teachers' Assn. v. Ontario (Attorney General), [2001] 1 S.C.R. 470 ("no taxation without representation" recognized as a corollary of the democratic principle?)

Lalonde v. Ontario (Health Services Restructuring Commission) (1999), 56 O.R. (3d) 505, 38 Admin. L.R. (3d) 1, 89 C.R.R. (2d) 1, 208 D.L.R. (4th) 577 (Ont. C.A.).

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