Foreword

• Author: John Helis
• Pages: 15-18

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Foreword

Almost fty years ago, the legal concept of quasi-constitutionality began

to emerge in Canada. In a series of landmark judgments, the Supreme

Court of Canada held that the Canadian Bill of Rights, 1960, an ordinary

Act of Parliament, was not like other ordinary Acts of Parliament. is

statute held a special place, a kind of primacy, even a sense of supremacy,

in relation to other statutes. Under orthodox assumptions about parlia-

mentary sovereignty that prevailed in Canada and other common law

parliamentary systems around the world, this was not supposed to be

possible. Yes, constitutional statutes like the British North America Act,

1867 (now the Constitution Act, 1867) took primacy over ordinary stat-

utes. However, the idea that sovereign legislatures — including Canadian

federal and provincial legislatures, when acting within the bounds set by

constitutional statutes — could enact super-statutes that somehow lim-

ited how law could be made in the future was an idea that lawyers and

judges who were still trained in Victorian-era jurisprudence could not

fathom. Yet, in the early s, Canadian judges saw their way through

the thicket of old theories about the nature of parliamentary authority

and concluded that, in eect, not all statutes are born equal. Some stat-

utes are so fundamental in the rights and values that they protect that

 Canadian Bill of Rights, SC , c . See, in particular, R v Drybones, [] SCR 

and R v Curr, [] SCR .

 (UK),  &  Vict, c , reprinted in RSC , Appendix II, No .