A Halfway House: Quasi-constitutional Documents

Dear Sir or Madam:

 

Today we write to you regarding the existence of quasi-constitutional documents in Canada. We will discuss what it means to be recognized as quasi-constitutional, outline what quasi-constitutional documents exist and briefly discuss how case law has applied these documents. For our 1L readers this post will be a good introduction into the Bill of Rights.

 

In the 1970s, the Supreme Court of Canada began recognizing certain legislative documents as quasi-constitutional.¹ In the simplest terms,  quasi-constitutional means statutes that are “not quite constitutional, but certainly more than ordinary.”² Justice Laskin was the first to utilize the term quasi-constitutional in the 1975 Supreme Court decision Hogan v R. In his decision he described quasi-constitutionality as “a halfway house between a purely common law regime and a constitutional one.”³ The Supreme Court’s definitions highlight how all of these documents are more powerful than any other regular legislation, but are not as powerful as a constitutional document.

 

Now the question becomes what pieces of legislation have been identified as quasi-constitutional. The Supreme Court has determined that several statutory laws exist under this classification, including: the Canadian Bill of Rights Act, Quebec Charter of Human Rights and Freedoms, Official Languages Act, Privacy Act, and provincial human rights acts.⁴ Quasi-constitutional statutes do not follow any special enactment process. Parliament enacts the legislation through the same process as any other piece of legislation, but they differ from ordinary legislation in that courts interpret them similarly to constitutional documents.⁵ Thus, they are granted a “broad and generous” interpretation, and also cannot be quashed by any subsequent conflicting laws.⁶

 

One of the most famous Canadian quasi-constitutional documents is the Canadian Bill of Rights Act. Throughout the 1970s, the judiciary inconsistently interpreted the bill’s power. In the landmark Supreme Court decision R v Drybones, the court was split 6-3 on its interpretation of the Act. The majority held the view that Indian Act was a violation of the Bill of Rights and therefore inoperative.⁷ The majority relied on s. 1(b) to reach this decision, stating, “the word "law" as used in s. 1(b) of the Canadian Bill of Rights is to be construed as meaning "the law of Canada"⁸.  This suggests the majority believed the Bill of Rights was supreme over the Indian Act, although they did not specifically qualify the document as quasi-constitutional at the time.

 

The three dissenting judges’ opinions differed widely from the majority. Justice Cartwright dissenting stated, “the Canadian Bill of Rights directs the Courts to apply the laws of Canada not to refuse to apply them”⁹. Thus, in the same case, a different justice described the Bill of Rights as constraining Parliament’s ability to enact legislation. The majority’s view that the Bill of Rights was supreme to the Indian Act was rejected.

 

The majority of the Bill of Rights cases existed in the 1970s, because eventually the Canadian Charter of Rights and Freedoms became the main avenue for advocating rights claims in the legal system. The Charter is a constitutional document, thus any law infringing these rights cannot stand. Therefore, the Bill of Rights while remaining an important quasi-constitutional document has little value in the legal system today.

 

Your Most Loyal Servants,

The Dominion

 

¹ Vanessa MacDonnell, “A Theory of Quasi-Constitutional Legislation” (2016) 53:2 Osgoode Hall LJ 508 at 509.

² Ontario Human Rights Commission v Simpson-Sears, [1985] 2 SCR 536 at 547, 52 OR (2d) 799.

³ Hogan v R, [1975] 2 SCR 574 at 597, 18 CCC (2d) 65.

⁴ MacDonnell, supra note 1 at 510.

⁵ Ibid at 510.

⁶ Ibid at 510.

⁷ R v Drybones, [1970] SCR 282 at 283, 10 CRNS 334.

⁸ Ibid at 283.

⁹ Ibid at 284.