The Development of Quasi-constitutionality

AuthorJohn Helis
 5
The Development of
e purpose of this chapter is to explore the emergence of quasi-consti-
tutionality and the development of its dening legal principles, includ-
ing its primacy and the broad, liberal, and purposive interpretation. It
will consider the development of these attributes in the six categories
of quasi-constitutional law, beginning with the Canadian Bill of Rights,
where the concept was rst devised and extended to the other categories
of quasi-constitutional statutes.
An account of the development of quasi-constitutionality and the
gradual extension of its dening principles to all quasi-constitutional laws
reveals the interconnectedness of these laws and their relationship to the
Constitution. As the rst quasi-constitutional statute, primacy developed
under the Canadian Bill of Rights. e weakness with this statute, how-
ever, was the restrictive approach adopted by the courts for its interpret-
ation, which made it rare for other statutes to run afoul of its provisions.
is shortcoming, however, inuenced the adoption of a broad, liberal,
and purposive approach to the interpretation of human rights legislation,
which ensured an expansive protection of rights, particularly when com-
bined with primacy.
e Supreme Court of Canada initially turned to its jurisprudence
under human rights legislation in developing its approach to the right to
equality under section () of the Charter. e Court’s eventual adoption
of a more stringent test under section () brought into question whether
a separate analytical framework should be maintained under human
-   
rights legislation when a government service established by legislation
is being challenged, or whether the Charter analysis should apply. With
silence on the issue from the Supreme Court of Canada, the framework
from the Ontario Court of Appeal’s  decision in Ontario (Director,
Disability Support Program) v Tranchemontagne (discussed in detail later
in this chapter) is being applied.
e protection of privacy nds its roots in human rights legislation
but was eventually more suitably coupled with access to information in
a framework where the two rights must be balanced. Accordingly, the
broad, liberal, and purposive interpretation that developed under human
rights legislation was extended to privacy and access to information
because of their quasi-constitutional character.
e development of language rights legislation initially outpaced
the rudimentary linguistic rights originally found in the Constitution,
and similar to the cross-fertilization between human rights legislation
and section () of the Charter, constitutional and legislative language
rights regimes form a dialectical relationship that inform each other in
the interpretive exercise. Although the Supreme Court of Canada at one
point endorsed a restrictive interpretation of language rights, it has since
adopted the broad, liberal, and purposive interpretation for both legisla-
tive and constitutional language rights.
Finally, the common law protection of a person’s good reputation
displays both the signicance of quasi-constitutional rights and their
relationship to the Constitution, as this right is to be balanced with the
constitutionally protected freedom of expression in the context of a def-
amation suit.
e rst category of quasi-constitutional legislation reects the initial
legislative eorts by Parliament and the provincial legislatures to protect
civil liberties during the emergence of the human rights movement after
the Second World War. ese statutes protect traditional civil liberties
against the actions of government: they include the rights to life, liberty,
security of the person, and property, as well as the freedoms of religion,
speech, assembly and association, and the press. e history of protecting
the traditional civil liberties in statutory form can be traced back to the
Christopher MacLennan, Toward the Charter: Canadians and the Demand for a National
Bill of Rights, – (Montreal & Kingston: McGill-Queen’s University Press, ) at .
The Development of Quasi-constitutionality 217
 Saskatchewan Bill of Rights Act and the  Canadian Bill of Rights,
which served as statutory precursors to the constitutional entrenchment
of these rights in the Charter.
Most provincial civil rights statutes were repealed or struck down
before quasi-constitutionality as a concept was developed by the courts,
although elements of the traditional civil liberties were incorporated into
some provincial human rights statutes. Alberta remains the exception
with both the Alberta Bill of Rights, which upholds traditional civil liber-
ties, and the Alberta Human Rights Act, which protects against discrimin-
ation by both government and private actors. e original Alberta Bill
of Rights from  was struck down by the Judicial Committee of the
Privy Council in  as ultra vires because in addition to upholding civil
liberties, it established a scheme for the issuance of credit, a federal power
under the British North America Act, . e current version is almost
identical to the Canadian Bill of Rights, and it has been referred to as
quasi-constitutional by the courts. As a result of the similarities between
Saskatchewan Bill of Rights Act, , SS , c ; Canadian Bill of Rights, SC , c
; Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, , being
Schedule B to the Canada Act  (UK), , c.
For example, e Saskatchewan Bill of Rights Act was repealed by e Saskatchewan
Human Rights Code, SS , c S-., s , and the civil liberties that it protected were
incorporated into part I of that Act. e Supreme Court of Canada referred to e
Saskatchewan Human Rights Code as quasi-constitutional in Battlefords and District
Co-operative Ltd v Gibbs, []  SCR  at para  [Battlefords]. Some traditional
civil liberties are also found in the Quebec Charter of Human Rights and Freedoms,
CQLR c C-, chapter I.
Alberta Bill of Rights, RSA , c A-; Alberta Human Rights Act, RSA , c A-..
 e Alberta Bill of Rights Act, SA , c ; Alberta (Attorney General) v Canada (Attorney
General), [] AC  (JCPC). What was the British North America Act,  is now the
Constitution Act,  (UK),  &  Vict, c , reprinted in RSC , App II, No .
 In Federation of Alberta Students v University of Alberta, [] AJ No  at para ,
the Alberta Court of Appeal observed that “[t]he language of the Canadian Bill of
Rights, s. , is almost identical to that found in the Alberta statute.” In Midgley v Law
Society of Alberta (),  AR  at para , Foisy J, of the Alberta Court of Queen’s
Bench, stated that “I think it a fair proposition that the Canadian Bill of Rights, R.S.C.
, Appendix  as amended, and the Alberta Bill of Rights are very much the same
with the former applying to federal legislation and the latter applying to Alberta pro-
vincial legislation.” is case was armed, [] AJ No  (CA). It was referred to as
quasi-constitutional by the Alberta Court of the Queen’s Bench in Alberta (Minister of
Public Works, Supply and Services) v Nilsson,  ABQB  at para , a’d on other
grounds  ABCA , leave to appeal to SCC refused, [] SCCA No . See
also Lavallee v Alberta (Securities Commission),  ABQB  at para  [Lavallee v
Alberta], a’d  ABCA  (without mention of the quasi-constitutional nature of
the Act), leave to appeal to SCC refused, [] SCCA No ; Trelenberg v Alberta

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