The Primacy of Quasi-constitutional Legislation

AuthorJohn Helis
Pages91-152
91
 3
The Primacy of Quasi-constitutional
Legislation
e primacy of quasi-constitutional legislation involves giving it priority
and an elevated legal status vis-à-vis other statutes to advance fundamental
rights. Primacy has thus been described as providing quasi-constitutional
legislation with a form of “precedence over other incompatible legislative
enactments.” Many quasi-constitutional statutes contain a primacy pro-
vision, although this function is recognized by the courts passed on the
fundamental character of quasi-constitutional legislation; the same results
have therefore been achieved even in the absence of an express provision.
Primacy is most often observed when there is a perceived conict
between a quasi-constitutional statute and a regular one, but a quasi-con-
stitutional statute can also guide the interpretation of a regular statute even
in the absence of conict. e courts have adopted a two-stage approach
to primacy whereby they rst try to interpret a regular statute in accordance
with the quasi-constitutional one to avoid conict. Quasi-constitutional
statutes signicantly aect the interpretation of other statutes, and courts
and tribunals use this interpretive function to eectively review other
legislation and ensure compliance with fundamental rights. is aspect
of primacy is notably similar to the weak-form model of constitutional-
ism and judicial review in several Commonwealth jurisdictions, where
Claire Mummé, “At the Crossroads in Discrimination Law: How the Human Rights
Codes Overtook the Charter in Canadian Government Services Cases” ()  Journal
of Law & Equality  at para .
-   
92
the role of the judiciary in scrutinizing legislation for compliance with
fundamental rights is based on interpretation rather than invalidation.
When conict cannot be avoided through interpretation, courts and
tribunals, in some instances, can proceed to the second stage and either
declare the conicting provision in the regular statute inoperable or for-
mulate a comparable remedy. is is one of the most signicant attrib-
utes of quasi-constitutional legislation, which was rst developed under
the Canadian Bill of Rights and is now being increasingly used under
human rights legislation, primarily when discrimination is found in a ser-
vice created by a statute. Since these cases can typically be pursued either
under human rights legislation or section () of the Charter, the courts
have been inuenced by the analytical framework developed under the
Charter. Unlike the use of the Charter, however, human rights legislation
cannot be used to directly challenge legislation; rather, it requires dis-
crimination in one of the social areas covered by human rights legislation.
e literature has focused largely on the cases involving discrimination
in the provision of government services and the analytical framework
adopted by the courts, but even in this context it has been observed
that the primacy of quasi-constitutional legislation has been “relatively
unexplored.” Although this remedy is issued most frequently in the ser-
vices context, there is no theoretical reason to restrict it to this social
area, and this chapter will examine declarations of inoperability in cases
involving discrimination in employment as well as in services.
Even though declarations of inoperability have only been explicitly
endorsed by the courts as a remedy under the Canadian Bill of Rights and
human rights legislation, this chapter will consider some of the emerging
trends under access-to-information, privacy, and language rights legis-
lation. ese cases are often determined on the rst stage of the analy-
sis, yet an interpretation that applies the quasi-constitutional statute and
declines to apply the conicting one can be practically indistinguishable
from a declaration of inoperability.
Section A of this chapter discusses the two-stage approach to primacy
under the Canadian Bill of Rights, and how the interpretive function is
being applied under the ve categories of quasi-constitutional legislation.
It then considers the similarities between this aspect of primacy and
developments in other Commonwealth jurisdictions that have adopted
Ibid. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, ,
being Schedule B to the Canada Act  (UK), , c  [Charter].
The Primacy of Quasi-constitutional Legislation 93
a weak-form model of constitutionalism and judicial review. Section B
focuses on declarations of inoperability and comparable remedies when a
regular statute is in irreconcilable conict with a quasi-constitutional one,
including the analytical framework developed by the courts. e focus of
this chapter is on the practical application of primacy, whereas theor-
etical questions and the broader history of the cross-fertilization between
human rights and section () of the Charter will be largely reserved for
chapters  and .
A. THE PRIMACY OF QUASI- CONSTITUTIONAL
LEGISLATION AND STATUTORY INTERPRETATION
In applying the two-stage approach to primacy, a court or tribunal rst
tries to interpret a statute in accordance with the quasi-constitutional
one in order to avoid conict. is approach was developed under the
Canadian Bill of Rights and has since been extended to the other categor-
ies of quasi-constitutional legislation. It has a substantial impact on the
interpretation of regular statutes, and even beyond the question of con-
ict, it is recognized that all legislation is to be interpreted consistent with
human rights when it is capable of more than one interpretation. e
primacy of access-to-information and privacy acts means that they pre-
vail over condentiality provisions or other methods of accessing records
unless the regular statute indicates otherwise. Language rights statutes
inuence the interpretation of other legislation to ensure the broadest
degree of French language services.
Primacy also means that quasi-constitutional legislation prevails over
private law instruments, such as contracts and collective agreements,
which cannot be used to diminish quasi-constitutional rights. Relatedly,
courts will scrutinize whether the enforcement of a foreign judgment, a
forum selection, or a choice of law clause is contrary to quasi-constitu-
tional principles. Finally, the primacy of Canadian quasi-constitutional
legislation displays some notable similarities to the weak-form model of
judicial review in the Commonwealth, which primarily mandates courts
to interpret statutes consistently with rights instruments.

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