A lecture from The Hon Justice Bradley W Miller, Court of Appeal for Ontario, on: Constitutional Supremacy and Judicial Reasoning: Doctrinal Difficulties in Canada and Abroad

With a Vote of Thanks by The Rt Hon Lord Sumption, Justice of the Supreme Court.


Judicial reasoning often takes place in circumstances of uncertainty, in which the acts of law-making that are to guide judgment – case law, statutes – are underdetermined. The problem can be particularly acute in constitutional adjudication, where the settlement achieved in constitutional texts may be only partial, and stated at a high level of generality and abstractness that perhaps papered over profound underlying disagreement.  Keeping the constitution supreme is a challenge in the difficult circumstances of incomplete constitutional settlement.

Courts play an important role in taking the commitments that a political community has made through the constitution making process, and using them to craft legal rules that can be applied to particular disputes.  But some constitutional doctrines created by courts, in Canada and elsewhere, are prone to misapplication and provide unintentional support for an outsized role for judges in making constitutional law. This lecture considers two doctrines that have become close to constitutional bedrock but which warrant a closer look: (1) the practice of interpreting a constitutional or quasi-constitutional text as a “living” instrument; and (2) the two-stage structure of constitutional rights, which defines rights broadly and invites states to justify their “violation”.

The Hon Justice Bradley W. Miller was appointed to the Superior Court of Justice in Ontario in January 2015 and was elevated to the Court of Appeal for Ontario in June 2015.  He holds a DPhil from the University of Oxford and practiced commercial and constitutional litigation in Canada with Lerners LLP and Miller Thomson LLP in Toronto.  From 2005-2015, he was a law professor at the University of Western Ontario and  His published work includes the collections The Challenge of Originalism (2011) and Proportionality and the Rule of Law (2014), as well as the co-authored monograph Legislated Rights (2018).