In his post on I-CONnect, 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 thatare 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, whereassection 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.
À qui de droit 