The BNA Act is comprised of “black-letter law” (the actual words on the page that prescribe the law) and unwritten principles or customs that supplement the black-letter law.1 Today’s post reviews the unwritten constitutional conventions that are not technically laws but are mandatory.2 These conventions assist the courts in applying the Living Tree Doctrine.
Courts use conventions to interpret laws in keeping with judicial history and the rule of law.3 With the except of Quebec’s civil system, Canada’s common law system is based on the United Kingdom’s, where current judicial decisions look to precedent cases to determine the appropriate application of the law. Commonly used principles of statutory interpretation guide judges to interpret legislation in similar manners as their colleagues and predecessors. This allows the justice system to be somewhat predictable.
Conventions are unwritten principles that guide courts in deciding how to best approach a constitutional question. They are considered part of the subtext of the constitution, similar to the Preamble of any legislation. Neither are actual laws, but give courts context to respond to constitutional questions. Conventions form when a typical custom becomes hardened into a formal practice.4 Political conversation, negotiation, and past governmental practice often shape conventions.
Legislation is often written in broad terms to allow courts some flexibility in applying laws.Canada’s constitutional law tends to be written in “broad, vague language that rarely speaks definitively to the cases that come before the courts.5 Conventions can assist courts in narrowing a question that arises from a broad law. Alternately, legislation can be written more specifically to ensure a narrow interpretation and application. In such a case, conventions provide courts with the ability to interpret a law with more flexibility, if necessary.
Many of the BNA Act provisions work in harmony to demonstrate underlying conventions. Early conventions guided the constitution and they continue to guide constitutional interpretation. Here are some important examples:
Constitutional Continuity: the idea that we maintain many of the same constitutional practices that the government of Canada was founded upon, as a former colony of Britain.
- Preamble: “a Constitution similar in Principle to that of the United Kingdom”6
- S. 9: the authority of and over Canada continues and is vested in the Queen
- S. 11: establishment of the Queen’s Privy Council, similar to that of the UK
- S. 12: English law continues until it is abolished by Canadian law
- S. 55: the Queen must give approval to all Orders in Council (a.k.a. laws)
- Preamble: respects the provinces’ authority because the four provinces desired to unite to create the federal government
- S. 22: respects regional interests in the federal government senate appointments
- Ss. 91 & 92: enumerated powers of federal and provincial governments
- S. 93: gives the provinces large power over education
- S. 94: assumes that the common law provinces would want to pass uniform laws while Quebec maintains its civil law system
- S. 95: provinces cannot enact laws relating to agriculture and immigration that are repugnant to any federal act
Democracy: the Constitution aims for a free and fair society led by a government responsible to its citizens
- Preamble: “responsible government” requires a majority of the House of Commons to pass laws
- S. 36: a clear majority (50% + 1 vote) rules in the Senate
- S. 37: representation of the Members of Parliament is based on population
- S. 40: regional distribution of electoral districts
- S. 50: each session of parliament can sit for no longer than 5 years
- S. 53: bills relating to appropriation of funds and tax impositions must originate in the House of Commons (not the unelected Senate)
Rights protected by the Constitution
- S. 92(13): property and civil rights
- S. 93(2) minority religious education rights
- S. 133: language rights of both official languages
In Re: Resolution to Amend the Constitution, the Supreme Court of Canada officially determined that conventions are appropriate principles to consider when deciding a question of constitutional law.7 The Court considered whether the federal government can amend the Constitution without provincial approval. The federal government could not unilaterally amend the Constitution due to an underlying constitutional convention of “substantial” provincial concurrence that the federal had established in political negotiations.8 To determine “substantial” provincial concurrence, the Court relied on past government decisions that required “substantial provincial support” as well as international examples from other Commonwealth countries that did not require unanimity from its provinces.9 Ultimately, the Court determined “that it could properly recognize conventional rules … notwithstanding their political aspects”.10
Importantly, the Court noted that although conventions are appropriate to help determine questions of law and interpretation of constitutional questions, they cannot be enforced by the court in the same way courts can enforce laws.11 Some conventions are in direct conflict with black-letter laws. For example, the BNA Act required the Governor General to give assent to every Order in Council passed by Parliament but convention and political custom limits the Governor General’s power.12
The Patriation Reference case is one of the major Supreme Court decisions that ruled on the use of conventions in constitutional law. There are many more (constitutional law demi-god Peter Hogg reviewed about 65 in 199713). Tomorrow we’ll review a few of the heavy-hitters.
With our most sincere regards,
1 Elise Hurtubise-Loranger, “Constitutional Conventions”, Topical Information for Parliamentarians (Library of Parliament, 11 Jul 2006), online: <www.lop.parl.gc.ca/content/lop/TeachersInstitute/ConstitutionalConventions.pdf>.
2 However, “it is generally accepted that the penalty for breaching a constitutional convention is political, not legal” Ibid at 1.
3 Re: Resolution to amend the Constitution,  1 SCR 753, 1 CRR 59 [Patriation Reference].
4 Ibid at 883.
5 Peter Hogg & Allison Bushnell, “The Charter Dialogue between courts and Legislatures (Or Perhaps the Charter Isn’t Such a Bad Thing after All)”, Osgoode Hall Law Journal 35.1 (1997): 75-124, online: <http://digitalcommons.osgoode.yorku.ca/ohlj/vol35/iss1/2> at 77.
6 Constitution Act, 1867, Preamble at para 1.
8 Ibid at 902; Hurtubise-Loranger, supra note 1 at 1.
9 Ibid at 902.
10 Hurtubise-Loranger, supra note 1 at 1.
12 Ibid at 2.
13 Hogg, supra note 5.