Canada’s constitutional order relies not only on formal legal texts but also on interpretive principles, administrative accountability, and unwritten conventions that guide the exercise of state power. Recent political developments—including increased executive discretion, accelerated policymaking, and the framing of governance through urgency rather than evidence—raise questions about whether these constitutional safeguards are being strained.
This article examines three pillars of Canada’s constitutional architecture: (1) evidence-based constraints on state power as articulated in the Insite ruling; (2) the justificatory framework for administrative decision-making reaffirmed in Vavilov; and (3) the normative force of constitutional conventions as articulated in the Patriation Reference and subsequent scholarship. Taken together, these elements illustrate the need for renewed attention to constitutional culture, democratic restraint, and the normative expectations that underlie responsible governance in Canada.
Introduction
Democratic decline rarely begins with a dramatic rupture; instead, it starts with small deviations from institutional norms, often justified as temporary, necessary, or efficient. Canada’s legal tradition has long emphasized that constitutionalism is both legal and cultural: it depends on courts to articulate limits, but also on governments to internalize restraint.
Canada is now facing a moment where expediency increasingly competes with constitutional process. The framing of public policy as inherently urgent—whether regarding public health, security, or digital regulation—has accelerated policymaking in ways that sometimes sidestep deliberation, parliamentary scrutiny, and public justification.
Against this backdrop, three areas of constitutional law serve as guideposts:
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the requirement for evidence-based state action;
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the obligation of reasoned decision-making by administrative bodies;
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and the ongoing relevance of unwritten constitutional principles.
Insite and the Evidentiary Burden on State Power
The Supreme Court’s decision in Canada (Attorney General) v. PHS Community Services Society (Insite) reaffirmed that constitutional rights are not subject to shifting political preferences. The ruling held that when state action jeopardizes life or security of the person under section 7 of the Charter, the state must justify such action through demonstrable evidence—not theoretical risk or ideological position.
The policy relevance of the judgment is not limited to the supervised injection site context. Instead, Insite affirms a broader constitutional rule:
Government may regulate, restrict, or intervene—but only where such action is demonstrably rational, proportionate, and evidence-based.
In an era marked by expanding regulatory frameworks—ranging from public health directives to digital governance—the reasoning in Insite provides a constitutional benchmark resisting the normalization of speculative or paternalistic policymaking.
Vavilov and the Duty to Justify Administrative Power
The 2019 Vavilov decision represents a constitutional recalibration of administrative law. Rather than treating administrative discretion as self-legitimizing, the Court repositioned justification as the core condition of lawful authority.
Administrative decisions must now meet a standard of intelligibility, transparency, and rationality. The decision’s broader democratic meaning is clear:
In a constitutional state, the exercise of public power must be explained—not assumed.
As regulatory systems evolve and governments increasingly rely on delegated authority rather than legislative enactment, Vavilov serves as a safeguard, ensuring that administrative governance remains accountable to constitutional norms rather than convenience.
Constitutional Conventions and the Culture of Restraint
Unlike jurisdictions with a comprehensive written constitution, Canada distributes constitutional authority across legislation, jurisprudence, and unwritten conventions. As articulated in the Patriation Reference, conventions are binding upon political actors even where they lack formal legal enforceability. They are the behavioural norms that prevent lawful action from becoming illegitimate action.
Examples include:
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ministerial responsibility;
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parliamentary supremacy in scrutiny of spending and emergency powers;
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judicial independence;
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respect for opposition and the press as democratic checks.
These conventions form what some scholars call Canada’s constitutional morality—a shared understanding that power must be exercised with restraint, transparency, and accountability.
However, conventions are uniquely vulnerable: they erode through neglect rather than confrontation. Once abandoned, restoration is difficult.
The Present Moment: A Slow Drift or a Constitutional Inflection Point?
Indicators of strain now exist across Canada’s constitutional landscape:
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Emergency-style governance invoked outside traditional emergency thresholds
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Policy justified primarily through appeals to necessity rather than evidence
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Expansion of administrative discretion without proportional increases in transparency
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The tendency to frame dissent—not as participation—but as obstruction
These developments do not yet constitute a constitutional crisis. But they do suggest constitutional drift—subtle, incremental, and largely administrative.
Conclusion
A constitutional democracy is not preserved by law alone. It endures through the ongoing public expectation that power must be justified, rights must be respected, and governance must remain accountable to evidence, process, and restraint.
Insite demands evidence.
Vavilov demands reasoning.
Constitutional conventions demand self-restraint.
Together, they form a tripartite framework for maintaining the legitimacy of public authority in Canada.
As Canada continues to navigate increasingly complex governance challenges, adherence to these principles will determine whether our constitutional culture strengthens—or whether it slowly erodes under the weight of expediency.
SOURCES:
Selected Legal Citations
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Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134.
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Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.
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Reference re Amendment of the Constitution of Canada (Patriation Reference), [1981] 1 SCR 753.
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Peter W Hogg, Constitutional Law of Canada, loose-leaf (Toronto: Thomson Reuters).
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Dwight Newman, “Constitutional Conventions and Democratic Legitimacy” (2013) UTLJ.
