Deconstructing City of Toronto: Unwritten Constitutional Principles and Responsive Judicial Review

This article distinguishes between two conceptions of unwritten constitutional principles, which it refers to as the uncrossable thresholds and symbiotic conceptions. It examines the way that the Supreme Court of Canada engaged with these different conceptions in its 2021 City of Toronto judgment, suggesting that while the Court explicitly rejected the use of unwritten principles as uncrossable thresholds, it implicitly relied on a form of symbiotic principled analysis to reach that conclusion. Far from blunting the potential legal force of unwritten constitutionalism — which is what the Court evidently thought it was doing — I argue that this mode of analysis, insofar as it depends on a contextualized act of judicial balancing, leaves the door ajar for judicial invalidation of laws that are grievously out of step with key tenets of the Canadian constitutional order. In the article’s final section, I then argue that the Court’s methodology has the added benefit of creating space for what Rosalind Dixon characterizes as responsive judicial review, a form of review that gives courts a limited but vital role in correcting pathologies of the democratic process.