—Maxime St-Hilaire, Faculté de droit, Université de Sherbrooke
In his post on this blog, Adam Perry writes that the British cases on what are known in the UK as constitutional statutes (and in Canada as quasi–constitutional statutes) “have been very controversial in constitutional circles”, whereas, by contrast, “the Canadian cases caused barely a ripple.” I would like here to take up the invitation, and to throw a tiny pebble into the lake.
Elsewhere — in a chapter on whether Quebec may adopt a “written constitution” for a book building on work presented at a symposium convened at Yale by Richard Albert — I incidentally develop an argument about quasi-constitutional statutes in Canada.
My main argument is that the only way to enact formal constitutional provisions that are part of the supreme law, so that they may invalidate ordinary ones, is to use one of Canada’s special constitution-changing procedures, which are different from and more demanding than the ordinary process of enacting a statute by an exercise of ordinary legislative power. These special procedures are entrenched in sections 35.1, 38–43, and 46–48 of the Constitution Act 1982. It is worth noting that, whereas section 35.1 is not included in Part V, titled “Procedure for amending Constitution of Canada” but is nonetheless part of that procedure, other sections which are included in that Part, among them section 45, pertaining to “laws amending the constitution of the province”, are not. To summarize, my general thesis is that, in accordance with the “unwritten” principle of parliamentary sovereignty, both the federal parliament and provincial legislatures may probably not legally bind their successors or even themselves, even by (true) “manner” or “form” requirements, the meeting of which the validity of subsequent legislation would be conditional upon. My point is that the limited range of so-called “manner and form” requirements (from ordinary legislation) that are permissible under Canadian constitutional law using ordinary legislation should be understood as statutory interpretation rules, in the sense of rules allowing actors to resolve inconsistencies between enactments of a same legislature, and not as conditions for legal validity. This is where the idea of “quasi–constitutional” statutes becomes relevant.
Indeed, express protection against implied repeal, or a primacy clause providing for an exception if a subsequent statute expressly states that it is intended to apply notwithstanding that clause or its including act, is commonly regarded as a “form requirement” (G. Carney, 1989, at 72). Such protections are found in Canadian law, notably in federal and provincial human rights legislation. There seems to be no doubt about their constitutionality, but I think they are mischaracterized as “form requirements”, and, more importantly, that they do not amount to conditions of validity, but only of operation.
I also think that they are in part superfluous. Regardless of how such protection clauses may vary across statutes, and whether any type of these so-called “form requirements” are to be found at all, Canadian case law has recognized that certain statutes have “quasi–constitutional” status, the effect of which remains unclear. This special status is based on the perceived special importance of their contents. It was judicially conferred on human rights legislation as well as statutes concerning language rights, citizenship, access to information and privacy, and the right to a clean environment.
When we limit the analysis to federal and provincial human rights acts, we first notice that three acts, the Canadian Human Rights Act, the Human Rights Act of New Brunswick, and that of Nova Scotia, do not contain any protection clauses against implied repeal. Secondly, we note that among the nine remaining acts, which do contain such provisions, three of them do not expressly make a “form requirement” but only state a primacy rule. These are the British Columbia Human Rights Code (s. 4), Newfoundland and Labrador Human Rights Act (s. 5), and Prince Edward Island Human Rights Act (par. 1(2)). In order to illustrate this point, we contrast section 52 of the Quebec Charter of Rights and Freedoms with section 5 of the Newfoundland and Labrador Human Rights Act. The former reads: “No provision of any Act, even subsequent to the Charter, may derogate from sections 1 to 38, except so far as provided by those sections, unless such Act expressly states that it applies despite the Charter.” The latter simply reads: “This Act shall take precedence over other Acts where they conflict with this Act whether those Acts were enacted before or after this Act comes into force.”
Most primacy clauses, whether they are followed by a “form requirement” or not, derogate expressly from the common law principle lex posterior derogat anterior. In all likelihood they implicitly derogate from other common law interpretation principles as well, such as lex specialis derogat legi generali (Heerspink, 1982, at 158, Lamer J). The point is, despite the pronouncements of the Supreme Court of Canada (Canada Assistance Plan reference, 1991, at 563), clauses that protect against implied repeal or amendment are not “form requirements” for the validity of subsequent legislation. Rather, they aid statutory interpretation in the case of inconsistencies.
Notwithstanding the language found in case law and commentary, I think it is simply as such that they are accepted in Canadian constitutional law. This is why I am of the opinion that the express “requirement” of express repeal or amendment by a protection clause is superfluous, quite aside from the question of whether they speak the truth. In other words, a clause such as section 4 of the BC Human Rights Code, which simply states “If there is a conflict between this Code and any other enactment, this Code prevails”, has a very limited (positive law) “legal truth” value.
But it is not only provisions like section 4 of the BC Human Rights Code, or section 5 of the NFL Human Rights Act, or paragraph 1(2) of the PEI Human Rights Act that do not convey much legal truth, but also the “quasi–constitutional status” doctrine. As I said, this doctrine applies according to the substance of a statute, regardless of possible protection clauses let alone their specific wording. In addition to their exceptional precedence over other formally ordinary laws that do not constitute a “clear legislative pronouncement” (Craton, 1985, at para 8) of their repeal or amendment, quasi–constitutional statutes are supposed to be interpreted liberally, so that the obligation incumbent upon judges to construe them so as to reconcile them with other statutes, should, as far as possible, work in their favour. (For a codified example of this interpretation principle, see section 2 of the Canadian Bill of Rights, and, in a comparative perspective, see also section 3 of the UK Human Rights Act 1998, as well as Alison L. Young’s article.) However, in Canada at least, even this is theory. In practice, such effects are not always certain (Thibodeau, 2014, and Leonid Sirota’s post).
To recapitulate: In Canada, statutes that have judicially been recognized as having a “quasi-constitutional” status do not always include provisions of the type considered to be a “form requirement”. When they do, this status is arguably a mischaracterization. Even when properly understood as a derogation from general statutory interpretation rules relating to the resolution of inconsistencies between enactments of a same legislature, quasi-constitutional status, as a matter of practice, has uncertain legal effects.
Suggested Citation: Maxime St-Hilaire, “Quasi Constitutional” Status as *Not* Implying a Form Requirement, Int’l J. Const. L. Blog, Aug. 8, 2017, at: http://www.iconnectblog.com/2017/08/quasi-constitutional-status-as-not-implying-a-form-requirement
I thank Richard Albert, Elena Sophie Drouin, Finn Makela, and Léonid Sirota for their useful comments on previous versions of this post.