Imperial Tobacco and Trial Lawyers: An Unstable and Unsuccessful Retreat

Abstract

The Supreme Court of Canada established an architectural model of the Constitution through the Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island and the Reference re Secession of Quebec. This model has an informing core of “organizing principles” engaging both written and unwritten rules. These two decisions and earlier landmark rulings have used unwritten principles to reach dramatic conclusions. Yet, the Supreme Court departs from this line of authority in Imperial Tobacco in which a strong textual approach is taken. The author argues this decision led to instability in constitutional doctrine that was further complicated in Trial Lawyers. This article explores the strengths of the Judges Reference and the Secession Reference and the need to uphold the use of unwritten constitutional principles while calling for the Imperial Tobacco case to be set aside.