Reception and the unwritten constitution

AuthorGib van Ert
 Reception and the
unwritten constitution
e system governing the recept ion of international law in Canada
is a matter of const itutional law. is is not self-ev idently so. ere
is hardly any reference to international law in those texts descr ibed
collectively in section () of the Constitution Act  as “the Con-
stitution of Canada.” But the constitution of C anada is broader than
section  suggests. It encompasses an unwritten element. As Lamer
CJ conf‌irmed in Re Provincial Court Judges, “the Constitut ion embraces
unwritten, as well as written rules.” “Unwritten” is something of a mis-
nomer, for unwritten constitutional rules can be found in written texts
such as statutes, judg ments and scholarly works. By “unwritten,” what
is really meant is unentrenched, meaning not to be found among those
Section () of the Co nstitution Act  prov ides that the “Constitution o f
Canada inc ludes” the Canada Ac t  (UK)  c. , t hirty statutes a nd other
instru ments listed in the Schedu le to the Canada Ac t , and any amendment
to any of these inst ruments. Section  () entrenches the Constitutio n of Can-
ada, thus def‌i ned, as “the supreme law of Ca nada” and provides that “any l aw
that is inconsi stent with the provision s of the Constitution is, to t he extent of
the inconsiste ncy, of no force or ef‌fect.” One notable reference to inter national
law in the Const itution of Canada, t hus def‌ined, occurs in t he Charter s. ( g)
which provide s: “Any person charged with a n of‌fence has the right . . . not to be
found guilt y on account of any act or omission u nless, at the time of the act or
omission, it const ituted an of‌fence under Can adian or internation al law or was
crimin al according to the genera l principles of law recog nized by the commun-
ity of nations.”
Reference re Remuneration of Judge s of the Provincial Court of Pr ince Edward Island
[]  SCR  at para. . See a lso New Brunswick Broadca sting Co. v. Nova Scotia
(Speaker of the House of As sembly) []  SCR  and Re Secession of Q uebec
[]  SCR .
     
instruments dec lared to be “the supreme law of Canada” by section .
ere are numerous statutes, orders, and other texts which, though not
referred to in section (), are nonetheless constitutional in nature.
Also to be included in a complete account of the Canadian constitution
are conventions: non-legal r ules of politica l practice which determine
some of the most basic features of Canadia n politics and government.
Yet another part of the unwritten constitution consists of common
law r ules of a constitutional natu re. It is these u nwritten laws of the
constitution that most signif‌icantly determine the place of internation-
al law in the Canadian legal order. e common law is the pr incipal
author of the reception system. e dif‌ferent rules by which customary
and conventional internat ional law enter t he Canadi an legal system
are creations of the common law not statute. e important role played
by interpretive presumptions and rules of judicial notice are features of
common law adjudication. Even such central featu res of the constitu-
tion as parliamentary sovereignty and the royal prerogative arguably
exist only on the suf‌ferance of the common l aw, or are at least heav ily
dependant on it. Everywhere in these common law rules and structures
we f‌ind the conf‌licting principles of respec t for international law and
self-government. And every where we f‌ind the conf‌lict dif‌fused by rules
which alternatively favour one principle over the other in a m anner
which ult imately balances the two principles in a stable, if not a lways
harmonious, man ner.
One commentator has obser ved t hat t he silence of ou r wr itten
constitution on the application of international law leaves a “consti-
P. Hogg, Constitutio nal Law of Canada, th ed., loo seleaf (Toronto: Carswell,
) at s. . suggests t he Canadian Bi ll of Rights SC  c.  , the Supreme
Court Act R SC  c. S-, and provi ncial human ri ghts instruments a s ex-
amples. Much could b e added to this list. A few e xamples include: federa l and
provincia l legislation concer ning elections; the s o-called Reg ional Veto Act
(An Act Res pecting Constitut ional Amendments SC   c. ); certain Briti sh
instru ments (notably the Bill of Ri ghts  (UK)  Wil liam & Mary se ss.  c. ,
the Royal P roclamation , repr inted at RSC  App. II No. , the Q ue-
bec Act  (UK )  George III c. , and the C onstitutional Act  ( UK) 
George III c. ); and t he so-called C larity Act SC   c. .
Constitutional convent ions are rarely considered by c ourts. But see the illu min-
ating disc ussion in Reference re Amendment of the Const itution of Canada [] 
SCR  at –  [Patriation Reference]. See also A . Heard, Canadian Constit u-
tional Conventions: e Ma rriage of Law and Politics ( Toronto: Oxford Universit y
Press, ).
4 • Reception and the un written constitution 
tutional vacuum.” I d isagree. e r ules and pr inciples according to
which international law applies in Canadian jurisdictions are no less
authoritative — and indeed, no less constitutional — for being unwrit-
ten. Whatever omissions the wr itten constitution has left in respect of
international law are amply supplied by the unwritten constitution and
common law adjudication.  at this is so is not si mply fortuitous, or a
case of necessit y being the mother of i nvention. e wr itten constitu-
tion ex plicitly contemplates that u nwritten rules will determine such
matters as are not addressed by it. u s the preamble to the Constitu-
tion Act  provides th at Canada will have a constit ution “similar in
principle to that of the United Ki ngdom.
Two common law featu res of Canada’s unwr itten constitution are
considered here. e f‌irst is parl iamentary sovereignty and more par-
ticularly the sovereignty of Canadian legislat ures to enact statutes that
conf‌lict with Canada’s obligations under international law. e second
common l aw feature is the royal prerogative over foreig n af‌fairs, in-
cluding the Crown’s power to conclude treaties on behalf of the state
without legislative involvement.
. Parliamentary sovereignty
A disti nction is made i n Canada bet ween the terms “Parliament” and
“Legislatu re.” By Parlia ment, Canad ian cou rts and writers generally
mean the federal (or Dominion) Parliament. By “L egislature” they
mean any of the ten provincial leg islatures. But al l these instit utions
are, of course, legislatures. One cou ld just as well say they are a ll par-
liam ents. Each is an i nstitution composed of the Sovereign and one or
two representative c hambers which, with the consent of all t heir con-
stituent elements, is competent to make law. e Canadian disti nction
S. Toope, “Keynote Add ress: Canada and Inter national Law” in  e Impact of
International La w on the Practice of Law in Canada: P roceedings of the th Annual
Conference of the Canadian Counci l on International Law, Ottawa Oc tober –,
 (e Ha gue: Kluwer Law Intern ational, )  at .
Elected members of the Ont ario legislatu re are called “Member s of the Provin-
cial Parl iament.” e edif‌ice housing Q uebec’s Assemblée Nationale is t he Hôtel
du Parlement. e Leg islative Assembly of Br itish Columbia meets in V ictoria’s
Parliament Bu ildings. As of Sept ember , the website of the Legi slative
Assembly of Pr ince Edward Island, o nline: www.asse, described the
province’s legisl ature as “the parli ament of Prince Edward I sland.”

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