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I find this case hard to square with Toronto v Ontario with respect to unwritten constitutional principles (UCPs) and have been unable to find any commentary on this point, so I figured I would ask here.
Basically, as far as I understand it, Toronto v Ontario subordinates the unwritten constitution to the written one, while New Brunswick Broadcasting Co claims equal weight to the written and unwritten constitution.
Considering just Toronto v Ontario 's finding of UCPs not being capable of invalidating legislation doesn't necessarily put it at odds with New Brunswick Broadcasting Co, since no specific legislation invalidated there, rather unwritten parliamentary privileges were sustained against a Charter infringement claim. However, Toronto v Ontario's subordination of UCPs seems to really eviscerate the internal logic used in New Brunswick Broadcasting Co. If UCPs can't even be used to invalidate legislation, then how did New Brunswick Broadcasting Co. manage to use a UCP to wall off a part of the written Constitution? Especially since according to Toronto v Ontario, the written Constitution has the utmost priority, so how did an unwritten principle have that much power?
Perhaps telling is that the Majority in Toronto v Ontario goes through quite a few precedents involving UCPs in order to explain how previous precedent is consistent with the present decision, with the notable exception of this case on which it was silent and completely unreferenced. The case was however cited by Abella J's minority dissent.
So, is anyone aware of any academics or legal professionals having written specifically on the tension of these two cases?
Thanks, DPenner1 ( talk) 04:51, 9 February 2022 (UTC)