Quasi-constitutionality

Last updated

In Canada, the term quasi-constitutional is used for laws which remain paramount even when subsequent statutes, which contradict them, are enacted by the same legislature. This is the reverse of the normal practice, under which newer laws trump any contradictory provisions in any older statute.

Contents

Primacy clauses in quasi-constitutional statutes

The normal practice, under which the more recent statute has the effect of nullifying any contradictory rules laid out in all earlier statutes, is known as "implied repeal." Implied repeal is the traditional way of ensuring that two contradictory laws are never in effect at the same time. The practice of implied repeal also reinforces the concept of parliamentary sovereignty or supremacy---that is, it reinforces the idea that the parliament or legislature cannot be restricted by any external limit, including past actions of the legislature itself.

A quasi-constitutional statute uses a "primacy clause" to achieve the apparently contradictory goals of respecting parliamentary sovereignty whilst retaining primacy in the face of later, contradictory statutes. A primacy clause is a provision stating that the statute can only be repealed or limited by a later statute if that later statute contains a primacy clause of its own, specifically stating that the new law is overriding the earlier, quasi-constitutional statute. For example, subsection 1(1) of the Alberta Human Rights Act reads "Unless it is expressly declared by an Act of the Legislature that it operates notwithstanding this Act, every law of Alberta is inoperative to the extent that it authorizes or requires the doing of anything prohibited by this Act." [1] The human rights codes of some other provinces use similar language.

Canadian constitutional scholar Peter Hogg provides this summary:

In Canadian statutes, it is not uncommon to find "primacy clauses" that purport to declare that the statute containing the clause is supreme over other statutes, future as well as past. Such clauses are intended to defeat the doctrine of implied repeal, under which a later statute would impliedly repeal an inconsistent earlier statute to the extent of the inconsistency. [2]

A quasi-constitutional law may be repealed or amended by means of an ordinary Act of the parliament or legislature, just like any other law. In this respect, therefore, such laws are not genuinely constitutional laws, which normally require some higher form of approval, such as the approval of multiple provincial legislatures, in order to be amended.

Examples

At the federal level, such laws include the Canadian Bill of Rights [3] and the Official Languages Act. [4] In Quebec, the Charter of the French Language and the Quebec Charter of Human Rights and Freedoms [5] contain primacy clauses asserting quasi-constitutional status.

The primacy clause in the Canadian Bill of Rights asserts that no later provision of a later statute, which contradicts the Bill of Rights may prevail unless "it is expressly declared ... that it shall operate notwithstanding the Canadian Bill of Rights." The Quebec Charter of Human Rights and Freedoms states that contradictory acts do not apply "unless such Act expressly states that it applies despite the Charter."

Similarly, subsection 82(1) of the Official Languages Act states that "in the event of any inconsistency" between Parts I - V of that Act, and any part of any later Act of Parliament, the provisions of the Official Languages Act will prevail.

Origin of the term "quasi-constitutional"

The first Canadian law to establish a claim to quasi-constitutional status was the Interpretation Act , which was enacted in November 1867 at the first session of the Parliament of Canada. Section 3 of this law stated:

This section and the fourth, fifth, sixth, seventh and eighth sections of this Act, and each provision thereof, shall extend and apply to every Act passed in the Session held in this thirtieth Year of Her Majesty's Reign, and in any future Session of the Parliament of Canada, except in so far as the provision is inconsistent with the intent and object of such Act, or the interpretation which such provision would give to any word, expression or clause is inconsistent with the context,—and except in so far as any provision thereof is in any such Act declared not applicable thereto;—Nor shall the omission in any Act of a declaration that the "Interpretation Act" shall apply thereto, be construed to prevent its so applying, although such express declaration may be inserted in some other Act or Acts of the same Session.

However, the term "quasi-constitutional" was not coined until 1974. The term was invented in a dissenting opinion written by Bora Laskin, a future Chief Justice of Canada. Laskin observed, "The Canadian Bill of Rights is a half-way house between a purely common law regime and a constitutional one; it may aptly be described as a quasi-constitutional instrument." [6]

Lamer's dissent prompted the then-Chief Justice, Roland Ritchie, to offer this concise summary as to the practical implications of a primacy clause being taken at face value—that is, when a primacy clause is not simply ignored by the courts: "[Justice Laskin] characterizes the Canadian Bill of Rights as a "quasi constitutional instrument" by which I take him to mean that its provisions are to be construed and applied as if they were constitutional provisions...." [7]

Court-established quasi-constitutionality

Laws acquire quasi-constitutional status either by means of a provision in their text, or through court interpretation as such.

Interpretation of quasi-constitutional laws

The Supreme Court of Canada has held repeatedly that quasi-constitutional statutes are to be interpreted using the same principles of statutory interpretation as are employed for all other statutes. [8] A quasi-constitutional statute must, like any other statute, be interpreted purposively. [9] This means that conflicts in interpretation should be resolved in favour of the underlying purposes of the Act. [10] Additionally, when the quasi-constitutional law is a rights-protecting measure such as a human rights act, the protected rights are to be interpreted broadly and exceptions and the limitations on these rights are to be construed narrowly. [11]

In 2008 the Court ruled, in New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc.:

[H]uman rights legislation must be interpreted in accordance with its quasi-constitutional status. This means that ambiguous language must be interpreted in a way that best reflects the remedial goals of the statute. It does not, however, permit interpretations which are inconsistent with the wording of the legislation. [12]

This ruling was consistent with an earlier decision, in which the Court stated:

"[Quasi-constitutional] status does not operate to alter the traditional approach to the interpretation of legislation, 'Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.'" [13]

Implications of quasi-constitutional laws

Quasi-constitutional laws are considered "more important than other laws," [14] and are therefore paramount to, or supersede, laws enacted before or after. The effect of paramountcy is to render the conflicting law inoperative as to the conflict.

How a primacy clause may be overridden

A quasi-constitutional law may not be used to invalidate the provisions of any later statute that contains a provision stating that this new law applies notwithstanding the quasi-constitutional law.

For example, section 2 of the Canadian Bill of Rights, a quasi-constitutional law states:

Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared....

Section 12 of the Public Order Temporary Measures Act, which was enacted on November 2, 1970, at the height of the October Crisis, overrode the Canadian Bill of Rights by stating, "It is hereby declared that this act shall operate notwithstanding the Canadian Bill of Rights."

The Public Order Temporary Measures Act is the only law that has ever overridden the Canadian Bill of Rights by means of such a clause—and moreover, the law contained further provisions ensuring that only some of the rights protected under the Bill of Rights would be suspended. As a further protection, the Public Order Temporary Measures Act contained a sunset clause causing these restrictions to expire within six months.

Conflicts between quasi-constitutional laws

One implication of the creation of a special class of quasi-constitutional laws is that on some occasions, one law which has been declared to be quasi-constitutional may contradict a provision of another quasi-constitutional law. In such cases, it is not immediately clear which law should prevail. In order to provide clarity, some quasi-constitutional laws contain provisions outlining which law will take priority. For example, subsection 82(2) of the Official Languages Act states that this Act's quasi-constitutional priority status "does not apply to the Canadian Human Rights Act or any regulation made thereunder."

Examples of quasi-constitutional laws and principles in Canada

See also

Related Research Articles

<span class="mw-page-title-main">Constitution of Canada</span>

The Constitution of Canada is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents are an amalgamation of various codified acts, treaties between the Crown and Indigenous Peoples, uncodified traditions and conventions. Canada is one of the oldest constitutional monarchies in the world.

Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause. Sometimes referred to as the override power, it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. The clause was part of the 'Kitchen Accord' of 1981.

<i>Canadian Charter of Rights and Freedoms</i> 1982 Canadian constitutional legislation

The Canadian Charter of Rights and Freedoms, often simply referred to as the Charter in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part of the Constitution Act, 1982. The Charter guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada from the policies and actions of all governments in Canada. It is designed to unify Canadians around a set of principles that embody those rights. The text of the document is set in the Cartier typeface, designed by Carl Dair to celebrate the centenary of Confederation. The Charter was proclaimed in force by Queen Elizabeth II of Canada on April 17, 1982, as part of the Constitution Act, 1982.

<i>Canadian Bill of Rights</i> Federal civil rights statute in Canada

The Canadian Bill of Rights is a federal statute and bill of rights enacted by the Parliament of Canada on August 10, 1960. It provides Canadians with certain rights at Canadian federal law in relation to other federal statutes. It was the earliest expression of human rights law at the federal level in Canada, though an implied Bill of Rights had already been recognized in the Canadian common law.

The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of patriating the constitution, introducing several amendments to the British North America Act, 1867, including re-naming it the Constitution Act, 1867. In addition to patriating the Constitution, the Constitution Act, 1982 enacted the Canadian Charter of Rights and Freedoms; guaranteed rights of the Aboriginal peoples of Canada; entrenched provincial jurisdiction over natural resources; provided for future constitutional conferences; and set out the procedures for amending the Constitution in the future.

The Charter of Human Rights and Freedoms, also known as the "Quebec Charter", is a statutory bill of rights and human rights code passed by the National Assembly of Quebec on June 27, 1975. It received Royal Assent from Lieutenant Governor Hugues Lapointe, coming into effect on June 28, 1976. Introduced by the Liberal government of Robert Bourassa, the Charter followed extensive preparatory work that began under the Union Nationale government of Daniel Johnson.

An entrenched clause or entrenchment clause of a constitution is a provision that makes certain amendments either more difficult or impossible to pass. Overriding an entrenched clause may require a supermajority, a referendum, or the consent of the minority party. The term eternity clause is used in a similar manner in the constitutions of Brazil, the Czech Republic, Germany, Greece, India, Iran, Italy, Morocco, Norway, and Turkey, but specifically applies to an entrenched clause that can never be overridden. However, if a constitution provides for a mechanism of its own abolition or replacement, like the German Basic Law does in Article 146, this by necessity provides a "back door" for getting rid of the "eternity clause", too.

<i>R v Drybones</i> Supreme Court of Canada case

R v Drybones, [1970] S.C.R. 282, is a landmark 6-3 Supreme Court of Canada decision holding that the Canadian Bill of Rights "empowered the courts to strike down federal legislation which offended its dictates." Accordingly, the Supreme Court of Canada held that section 94(b) of the Indian Act is inoperative because it violates section 1(b) of the Canadian Bill of Rights.

<i>Canada (AG) v Lavell</i> 1974 Supreme Court of Canada case

Canada (AG) v Lavell, [1974] S.C.R. 1349, was a landmark 5–4 Supreme Court of Canada decision holding that Section 12(1)(b) of the Indian Act did not violate the respondents' right to "equality before the law" under Section 1 (b) of the Canadian Bill of Rights. The two respondents, Lavell and Bédard, had alleged that the impugned section was discriminatory under the Canadian Bill of Rights by virtue of the fact that it deprived Indian women of their status for marrying a non-Indian, but not Indian men.

<i>Quebec (AG) v Blaikie (No 1)</i> Supreme Court of Canada case

Quebec (AG) v Blaikie , [1979] 2 S.C.R. 1016 is a leading decision of the Supreme Court of Canada on language rights in the Constitution Act, 1867. The Court held that the sections of Quebec's Charter of the French Language, which required that provincial laws be enacted in French only, violated section 133 of the Constitution Act, 1867.

Section 18 of the Canadian Charter of Rights and Freedoms is one of the provisions of the Constitution that addresses rights relating to Canada's two official languages, English and French. Like section 133 of the Constitution Act, 1867, section 18 requires that all statutes and other records made by the Parliament of Canada must be available in both official languages. Section 133 places a similar obligation on the legislature of Quebec, and this is reaffirmed by section 21 of the Charter. Section 18 of the Charter places a similar obligation on the legislature of New Brunswick. New Brunswick is the only officially bilingual province under section 16 of the Charter.

The doctrine of implied repeal is a concept in constitutional theory which states that where an Act of Parliament or an Act of Congress conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act become legally inoperable. This doctrine is expressed in the Latin phrase leges posteriores priores contrarias abrogant or "lex posterior derogat priori".

<span class="mw-page-title-main">Primacy of European Union law</span> Legal principle

The primacy of European Union law is a legal principle establishing precedence of European Union law over conflicting national laws of EU member states.

<i>Crevier v Quebec (AG)</i> Supreme Court of Canada case

Crevier v Quebec (AG), [1981] 2 S.C.R. 220 is a leading Supreme Court of Canada decision in administrative law. The court had to decide whether a Quebec-created Professionals Tribunal was unconstitutional due to being a "s. 96 court" according to the Constitution Act, 1867, whose members can only be federally appointed. It found that any legislation which has a privative clause purporting to exclude review of jurisdictional matters is outside the jurisdiction of a provincial legislature.

The equal authenticity rule is a rule of judicial interpretation developed by Canadian courts as a way of interpreting laws written in parallel French and English texts. The constitution of Canada requires that both versions of each bilingual law be treated as equally authoritative, which can result in problems when the English and French versions are incongruent. The equal authenticity rule is derived from section 133 of the Constitution Act, 1867, which states that "The Acts of the Parliament of Canada and the Legislature of Quebec shall be printed and published in both those Languages."

Section 3 of the Human Rights Act 1998 is a provision of the United Kingdom's Human Rights Act 1998 that requires courts to interpret both primary and subordinate legislation so that their provisions are compatible with the articles of the European Convention of Human Rights, which are also part of the Human Rights Act 1998. This interpretation goes far beyond normal statutory interpretation, and includes past and future legislation, therefore preventing the Human Rights Act from being impliedly repealed by subsequent contradictory legislation.

<span class="mw-page-title-main">Section 121 of the Constitution Act, 1867</span> Provision of the Canadian Constitution

Section 121 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to the entry of goods from one province into another.

Preamble to the <i>Constitution Act, 1867</i> Provision of the Constitution of Canada

The Preamble to the Constitution Act, 1867 is a provision of the Constitution of Canada, setting out some of the general goals and principles of the Act. Although the Preamble is not a substantive provision, the courts have used it as a guide to the interpretation of the Constitution of Canada, particularly unwritten constitutional principles which inform the history and meaning of the Constitution.

Section 2 of the <i>Constitution Act, 1867</i> Provision of the Constitution of Canada

Section 2 of the Constitution Act, 1867 is a repealed provision of the Constitution of Canada relating to the monarch of Canada. It defined the term "Her Majesty the Queen" for the purposes of the Constitution Act, 1867.

Section 20 of the <i>Constitution Act, 1867</i> Provision of the Constitution of Canada

Section 20 of the Constitution Act, 1867 is a repealed provision of the Constitution of Canada, which required annual sittings of the Parliament of Canada. It was repealed in 1982 and replaced by a similar provision in the Canadian Charter of Rights and Freedoms.

References

  1. ↑ Alberta Human Rights Act, RSA 2000, c A-25.5 at §1(1).
  2. ↑ Peter Hogg, Constitutional Law of Canada (5th edition, 2007), p. 358.
  3. ↑ Bell Canada v. Canadian Telephone Employees Assn., [2003] S.C.J. No. 36 at para 28.
  4. ↑ R. v. Beaulac, [1999] 1 S.C.R. 768 at 788-9;Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] S.C.J. No. 55 at para 23.
  5. ↑ 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] S.C.J. No. 112; Globe and Mail v. Canada (Attorney General), [2010] S.C.J. No. 41 at para 29
  6. ↑ Laskin, J. dissent in Hogan v. R., [1975] 2 S.C.R. 574 at 597.
  7. ↑ Hogan v. R., [1975] 2 S.C.R. 574 at 583.
  8. ↑ Canada (Information Commissioner) v. Canada (Minister of National Defence), [2011] S.C.J. No. 25 at para 40 (noting that "[t]he Court cannot disregard the actual words chosen by Parliament and rewrite the legislation to accord with its own view of how the legislative purpose could be better promoted").
  9. ↑ Charlebois v. Saint John (City), [2005] S.C.J. No. 77 at para 54 (holding that language rights, which are quasi-constitutional, should be interpreted purposively).
  10. ↑ New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., [2008] S.C.J. No. 46 at para 19.
  11. ↑ Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), [2000] 1 S.C.R. 665, 2000 SCC 27 ("Quebec v. Montréal"), at para. 27-30
  12. ↑ New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., [2008] S.C.J. No. 46 at para 19.
  13. ↑ Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), [2000] 1 S.C.R. 665, 2000 SCC 27 ("Quebec v. Montréal"), at para. 30 (citing Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, and O'Malley) (quoting Driedger in Construction of Statutes (2d 3d. 1993) at p. 87.)
  14. ↑ Insurance Corp. of British Columbia v. Heerspink, [1982] S.C.J. No. 65 (at 178).
  15. ↑ 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] S.C.J. No. 112; Globe and Mail v. *Canada (Attorney General), [2010] S.C.J. No. 41 at para 29
  16. ↑ Canada (Attorney General) v. Mossop, [1993] S.C.J. No. 20 at para 57 (L’heureux-Dube J Dissenting); Dickason v. University of Alberta, [1992] S.C.J. No. 76 at para 24.
  17. ↑ Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] S.C.J. No. 55 at para 23.
  18. ↑ Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] S.C.J. No. 55 at para 24.
  19. ↑ Bell Canada v. Canadian Telephone Employees Assn., [2003] S.C.J. No. 36 at para 28.
  20. ↑ Canada (Information Commissioner) v. Canada (Minister of National Defence), [2011] S.C.J. No. 25 at para 40; Macdonell v. Quebec (Commission d'accès à l'information), [2002] S.C.J. No. 71.
  21. ↑ R. v. Keegstra, [1990] S.C.J. No. 131 (McLachlin J Dissenting) para 186; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.