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Quasi-constitutionality (Canada)

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Quasi-constitutionality (Canada)

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.

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.

Quasi-constitutionality is employed as a method of ensuring that implied repeal cannot occur, yet it does not challenge the doctrine of parliamentary sovereignty in the same way as a written constitution which places express limits on what the legislature is empowered to enact.

A quasi-constitutional statute normally 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 A primacy clause is a provision of the law stating that it can only be repealed or limited by a later statute if that statute contains a primacy clause of its own, which, it is stipulated, must specifically state that the new law is overriding the earlier statute.

Canadian constitutional scholar Peter Hogg provides this summary:

A quasi-constitutional law may be repealed or amended by means of an ordinary Act of the parliament or legislature, just like any other law.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

The term "quasi-constitutional" was first used, in 1974, 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."[1] This prompted the then-Chief Justice, Roland Ritchie, to offer this concise summary as to what it means when a law with a primacy clause is treated as being quasi-constitutional: "[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, and in so doing he would adopt as a matter of policy for Canada, apart from and at variance with the common law position, the rule of absolute exclusion of all evidence obtained under circumstances where one of the provisions of the Canadian Bill of Rights has been violated."[2]

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 are do not apply "unless such Act expressly states that it applies despite the Charter."

Establishment of Quasi-Constitutional Laws

Laws acquire quasi-constitutional status either by means of a provision in their text, or through court interpretation as such. The first Canadian law to establish a claim to quasi-constitutional status was the Interpretation Act, which was adopted in November 1867 at the first session of the Parliament of Canada. Section 3 of this law stated:

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.

Interpretation of Quasi-Constitutional Laws

The Supreme Court of Canada has held repeatedly that quasi-constitutional laws are to be interpreted the same way as all statutes.

This means that they must be interpreted first, based on the words of the statute itself. Status as a quasi-constitutional law does not eliminate basic principles of statutory interpretation.[6] Yet, the Court has also held that quasi-constitutional statutes must also be interpreted purposively,[7] that is, conflicts in interpretation should be resolved in favour of the underlying purposes of the Act.[8] Additionally, protected rights are to be interpreted broadly and exceptions and defenses are construed narrowly.[9]

In sum, purposive interpretation of quasi-constitutional laws requires construction that accords with the language and underlying purposes of the statute. As the Court said in New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc.:

Implications of Quasi-Constitutional Laws

Quasi-constitutional laws are considered "more important than other laws,"[10] 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 quasi-constitutional laws may be overridden

A quasi-constitutional law may be overridden by means of a provision, in any subsequent law, stating that this new law applies notwithstanding the previous quasi-constitutional law.

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

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 overrridden the Canadian Bill of Rights by means of a 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

  • Quebec Charter[11]
  • Human Rights Legislation[12]
  • Official Languages Act[13]
  • Privacy Act[14]
  • Canadian Bill of rights[15]
  • Access to information act[16]
  • Freedom of Expression (prior to gaining constitutional status when enacted in the Charter)[17]

External links

  • Canada's Constitution prior to 1982

References

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