Constitutional Law Notes
imperial statutes
Sources and Nature of the Constitution of Canada

Definition of Constitutional Law
Constitutional Law is the law prescribing the exercise of power by the organs of the State. In a federal state, the allocation of governmental powers (legislative, executive and judicial) among central and regional (state or provincial) authorities is a basic concern. The rules of federalism are especially significant in Canada because they protect the cultural, linguistic and regional diversity of the nation.

In Canada, the rule of law reaches up into the parliament of Canada and the legislatures of the provinces, each of which must stay within the powers allocated to that level of government by the constitution. Laws enacted in breach of the constitution may be challenged in the courts by citizens and the laws will be struck down by the courts.

In Canada (as in the United Kingdom), there is no single document comparable to the constitution in the US and the word constitution lacks definite meaning. The closest approximation to such a document is the British North America Act 1867, which was renamed the Constitution Act, 1867. The Constitution Act created the new Dominion of Canada

The Constitutional Act 1982
The constitutional settlement of 1982 made some important repairs to Canada’s constitutional law: a domestic amending formula was adopted; the UK’s authority over Canada was terminated and the Charter of rights was adopted.

The leading instrument of the Canadian constitution was the Canada Act 1982.

Neither the Canada Act 1982 nor the Canada Act 1982 purports to be a codification or even consolidation of Canada’s constitutional law.

The Constitution of Canada
The phrase “Constitution of Canada is defined in s52 (2) of the Constitution Act, 1982 as follows:

52 (2) The constitution of Canada includes

The Canada Act 1982, including this Act
The Acts and orders referred to in the schedule; and
Any amendment to any Act or order referred to in paragraph (a) or (b).
In New Brunswick Broadcasting Co. V. Nova Scotia (1993), a majority of the Supreme Court of Canada held that the definition in s52(2) is not exhaustive. The court held that the unwritten doctrine of parliamentary privilege should be included in the definition, although section 52(2) makes no mention of parliamentary privilege. The inclusion of parliamentary privilege was said to be implied by reference in the preamble of the Constitution Act 1867 to a “constitution similar in principle to that of the United Kingdom”.

Sources of Canadian Constitutional Law
(1) Imperial Statutes
The Constitution Act, 1867 and the Constitution Act 1982 are both imperial statutes; statutes enacted for Canada by the United Kingdom Parliament in its role as imperial Parliament. These two statutes are within the definition of the Constitution of Canada in s52(2) of the Constitution Act, 1982 and they are two of the most important elements of the Constitution of Canada. Imperial statutes that are not part of the constitution for Canada no longer have any special importance in Canada.

Those imperial statues that are a part of the Canadian Constitution are supreme over other laws and can be amended and repealed only in accordance with the amending procedures of Part V of the Constitution of Canada.

(2) Canadian Statutes
The definition of the “Constitution of Canada” in section 52(2) of the Constitution Act, 1982 includes eight Canadian statutes. Three of these created provinces.

There are other Canadian statutes that although not included in the definition of the Constitution of Canada are constitutional in the sense that they establish or regulate some of the important institutions in the country. The Canadian Bill of Rights of 1960, which purports to limit the powers of federal parliament, is the clearest example of such a statute. The statute that created the supreme court of Canada in 1875 is also in this category. The statute that created the federal court of Canada in 1971 has a claim to be included as well.

Saskatchewan, Alberta and Quebec have each enacted a Bill of Rights.

Of note is that statutes that were not included in the definition of the Constitution of Canada may be repealed or amended by the ordinary legislative processes.

(3) Parliamentary Privilege
The federal houses of Parliament and the provincial legislative assemblies possess a set of powers and privileges that are necessary to their capacity to function as legislative bodies”. These powers and rights are known collectively as parliamentary privileges.

This includes:

Freedom of speech in debate
Immunity from legal proceedings for things said in the debate
Exclusive control of the assemblies proceedings
The right of members of parliament or legislative assemblies not to testify in court proceedings while parliament or the legislatures is in session.
Parliamentary privilege does not extend to the majority of the House’s employee’s.

Parliamentary privilege can be regarded as a branch of common law in that it is not contained in any statute or other written instrument, and it is the court’s who decide its existence and extent.

The first peculiar characteristic of parliamentary privilege is that it is part of the constitution of Canada. The second peculiar characteristic is that the powers authorised by PP (parliamentary privilege) are not subject to the Charter of rights. This immunity from the charter distinguishes pp from other powers conferred by the COC (Constitution of Canada)on the federal parliament and provincial legislatures; all the other powers of these legislative bodies must be exercised in conformity with the Charter of Rights. The immunity of PP from the charter also distinguishes it from the royal prerogative and other common law powers of government.

(4) Case law
The courts have the task of interpreting the Constitution Acts and the other constitutional statutes. As a part of the process of “interpretation”, the Supreme Court of Canada (SCOC) has not hesitated to find “unwritten” principles that “underlie” the text of the Constitution Act, 1867 and the Constitution Act, 1982.

(5) Prerogative
The royal prerogative is made of the powers and privileges accorded by the common law to the Crown. Dicey described it as

“The residue of discretionary arbitrary authority, which at any given time is left in the hands of the Crown”

The prerogative is a branch of the common law, because it is the decisions of the courts which have determined its existence and extent.

(6) Conventions
(a) Definitions of conventions
Conventions are the rules of the constitution that are not enforced by the law of the courts. Because they are not enforced by the courts, they are best regarded as non-legal rules, but because they do in fact regulate the working of the constitution, they are an important concern for the constitutional lawyer. Conventions prescribe the way in which legal powers are exercised.

Examples of conventions are:

The queen and Governor General have the power to withhold royal assent from a bill that has been enacted by the two Houses of parliament (s55), but a convention stipulates that the royal assent shall never be withheld.
The Governor General will only exercise his powers in accordance with the advice of cabinet or in some cases the prime minister.
Conventions are not enforceable in the courts. If the GG exercised his power and withheld his assent to bill enacted by both Houses of Parliament, the courts would deny the force of the law to the bill, and they would not issue an injunction or other legal remedy to force the GG to give his assent. None of these things have ever happened, because conventions are in fact nearly always obeyed by the officials whose conduct they regulate.

If a convention is disobeyed it is often described as unconstitutional. This use of the term “unconstitutional” must be distinguished from the case where a legal rule of the constitution has been disobeyed. Where unconstitutionality springs from a breach of law, the purported act is a normally a nullity and there a remedy available in the courts. Where the unconstitutionality springs from a breach of convention, no breach of the law has occurred and no legal remedy is available.

(b) Conventions in the Courts
Although a convention will not be enforced by the courts, the existence of a convention has occasionally been recognised by the courts. For example the courts have taken notice of the conventions of responsible government, which make a minister accountable to Parliament, as a consideration in deciding to give a broad rather than narrow interpretation to a statute conferring power on a Minister. In these cases, and in other cases in which the existence of a convention has been recognised, the existence of the convention was relevant to the disposition of the legal issue, usually the interpretation of either a statute or a written constitution.

In Patriation Reference (1981), the Supreme Court of Canada was asked on a reference whether there was a convention requiring that the consent of the provinces be obtained before the federal government requested the UK Parliament to enact an amendment to the COC that would affect the powers of the provinces. The Court was also asked whether there was a legal requirement of provincial consent. The questions had been referred to the Courts by three of eight provinces that were opposed to Prime Minister Trudeau’s proposals for a constitutional settlement to patriate the constitution and obtain an amending procedure and a charter of rights. The Supreme Court of Canada decided the legal questions. It held that there was no legal requirement of provincial consent to the constitutional proposals. As regards to the question of the convention the court went on to hold that there was a convention, and that the convention required the federal government to obtain a “substantial degree” or “substantial measure” of provincial consent before requesting the requisite legislation from the UK.

The aforementioned case is not atypical. The court could have refused to answer the question since it did not bear on a legal issue. The answer could not lead to any specific legal consequences. The issue really comes down to the question of whether the convention questions were suitable for judicial determination. The only possible effect of answering the question in the Patriation Reference was to influence the outcome of the political negotiations over the 1981-82 constitutional settlement. The answer to the convention question strengthened the hands of the provinces in that negotiation, and is probably the reason why the provinces were able to secure the insertion of the override clause in the Charter of Rights and the substitution of the opting out amending formula-the two major concessions made by the federal government to achieve the agreement of November 5, 1981.

(c) Convention and usage
Conventions are often distinguished from “usages”. A convention is a rule which is regarded as obligatory by the officials to whom it applies whereas a usage is not a rule but merely a governmental practice which is ordinarily followed, although it is not regarded as obligatory.

An example of a usage is the practice of appointing to the position of Chief Justice of Canada the person who is senior puisne judge of the Supreme Court of Canada at the time of the of the vacancy.

A usage may develop into a convention. If it is invariably followed over a long period of time, it may come to be generally recognised as obligatory and thereby cease to be merely a usage. The resulting custom may be called a custom. This process of evolution from usage to convention (or custom) is the way in which most conventions have been established.

(d) Convention and agreement
A convention may also be established if all relevant officials agree to adopt a certain rule of constitutional conduct, then that rule may immediately come to be regarded as obligatory. The resulting convention could hardly at the beginning be described as a custom.

It should be noted that conventions that were established by agreement will normally be written down by the officials concerned in precise authoritative terms.

Conventions are not necessarily unwritten rules, although conventions established by custom are rarely written down in terms that are accepted as precise and authoritative.

(e) Convention and law
A convention could be transformed into law by being enacted as a statute. A convention would also be transformed into law if it were enforced by the courts. If a court gave a remedy for a breach of convention, for example by ordering an unwilling governor general to give his or her assent to a bill enacted by both Houses of Parliament, then we would have to change our language and say that the GG was under a legal obligation to assent, and not merely a conventional obligation. In that event a convention would have been transformed into a rule of common law.

(f) Convention and policy
In two cases the SCOC was faced with an argument by public school supporters that provincial education statutes violated a constitutional convention. The argument if successful would not have invalidated the statute, the proponents presumably believed that a favourable ruling would have helped them to secure a political remedy, namely the repeal of or amendment of the statutes. The court held in both cases that that no convention restricted the policy or substance of what could be enacted by the provincial legislature in exercise of its power in relation to education.

Conventions only affect the structure of a government power, not the policies to which government power was addressed.

Consequences of breach of a convention
The primary reason that conventions are obeyed is because breach of that convention would result in serious political repercussions, and eventually in changes in the law. An attempt by a GG to act without advice or to refuse to assent to a bill would quickly followed by dismissal. It would also lead to an irresistible demand to enact a statute embodying the terms of the convention.

Purpose of Conventions
Conventions do not exist in a legal vacuum. Law and convention are closely interlocked. Conventions regulate the way in which legal powers shall be exercised, and they therefore presuppose the existence of legal powers. Their purpose is “to ensure that the legal framework of the constitution will be operated in accordance with the prevailing constitutional values or principles of the period”. They bring outdated legal powers into conformity with current notions of government.

Each convention takes a legal power that would be intolerable if it were actually exercise as a written, and makes it tolerable.

Case Note
Reference re Secession of Quebec [1998] 2 S.C.R. 217
Questions under consideration were:
Issues regarding the Court’s reference jurisdiction were raised by amicus curiae (an impartial adviser, often voluntary, to a court of law in a particular case). He argued that s 53 of the Supreme Court Act was unconstitutional; that even if the Court’s reference jurisdiction was constitutionally valid, the questions submitted were not justiciable.

It was held that section 53 was constitutional and the court should answer the reference questions.

The constitution is more than a written text. It embraces the entire global system of rules and principles which govern the exercise of constitutional authority. A superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading. It is necessary to make a more profound investigation of the underlying principles animating the whole of the Constitution.