The Theory of Quasi-constitutionality

• Author: John Helis
• Pages: 153-213

153

 4

The Theory of Quasi-constitutionality

Quasi-constitutional law is fundamental law by virtue of its association

to the provisions and normative elements of the Constitution, and this

accounts for both its primacy over regular legislation and the broad,

liberal, and purposive approach to its interpretation. e primacy of

quasi-constitutional legislation, with resulting declarations of inoperabil-

ity, provides courts and tribunals with a method of judicial review over

regular legislation, although it is a form of judicial review which diers

from constitutional supremacy and the legislation is not invalidated.

Primacy is best understood as an interpretive approach adopted by the

courts, in recognition of the fundamental nature of the rights upheld by

quasi-constitutional legislation, which prioritizes a quasi-constitutional

statute over a regular statute when the two statutes conict. Primacy is

recognized by the courts even in the absence of an express primacy provi-

sion, although the courts account for the legislature’s intention through

its role in enacting legislation protecting fundamental rights. Legislative

supremacy is also maintained through the legislature’s ability to override,

amend, or repeal quasi-constitutional legislation. Such derogation, how-

ever, will only be recognized by courts and tribunals only with use of

clear legislative language that rebuts the presumption that the legislature

intends to uphold fundamental rights.

A declaration of inoperability therefore diers theoretically from the

invalidation of a statute that violates a constitutional right or was enacted

contrary to a constitutional or statutory manner and form provision, which

-   

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connotes that the impugned provision was never legally enacted in the

rst place. Despite the theoretical dierences, on a more practical level

the outcomes are remarkably similar as the impugned provision is not

applied. e similarities are most apparent when a human rights tribu-

nal issues a declaration of inoperability that purports to have a broader

impact beyond the immediate case. In this instance, inoperability is no

longer a case-specic example of statutory interpretation that is guided

by the fundamental nature of rights; courts and tribunals must, instead,

rely on legislative intent through provisions in human rights legislation

meant to prevent future violation of rights.

e fundamental nature of rights also forms the basis of the broad,

liberal, and purposive interpretation of quasi-constitutional legislation,

which is similarly balanced with legislative intent. ere is a long trad-

ition of interpreting remedial legislation broadly, liberally, and purpos-

ively, which has been extended by legislatures to all legislation through

interpretation acts. Yet, as was displayed in Chapter , unique results

are achieved through the broad, liberal, and purposive interpretation of

quasi-constitutional legislation over other legislation, and comparisons

can be made to constitutional law. For this reason, courts often empha-

size the special nature of quasi-constitutional statutes for their interpret-

ive approach, and the conventional theories of statutory interpretation

fail to provide a proper account of their function. e interpretation of

quasi-constitutional legislation nds its basis in constitutional principles

and is promoted through legislative intent in the substantive legislative

provisions. e courts achieve this through a purposive analysis that

identies the fundamental nature of quasi-constitutional legislation by

way of the doctrine of presumed legislative intent, and through more

direct measures such as preambles, purposive statements, and interpret-

ation acts. At the same time, while the interpretive exercise is based on

the presumption that the legislature intends to honour and advance fun-

damental rights, courts remain diligent not to encroach upon the sub-

stantive provisions of the statute. ey will, therefore, depart from the

broad, liberal, and purposive interpretation when there is clear statutory

language to the contrary.

is chapter has four sections. Section A presents the theoretical dif-

ferences and practical similarities between inoperability under quasi-con-

stitutional legislation and the invalidity of a statute when it conicts

with either the Constitution or a legislative manner and form provision.

Section B situates the theoretical basis of quasi-constitutionality in the

The Theory of Quasi-constitutionality 155

concept of fundamental law, which will be shown to be rooted in both

the provisions and normative elements of the Constitution. Section C

then reviews the balance that courts achieve between the fundamental

nature of rights and legislative intent when applying the principle of pri-

macy. Finally, Section D explores these same principles of the fundamen-

tal nature of rights and legislative intent in the adoption of the broad,

liberal, and purposive interpretation of quasi-constitutional legislation.

A. THE PRIMACY OF QUASI- CONSTITUTIONAL

LEGISLATION COMPARED TO INVALIDITY

e starting point in uncovering the basis of primacy is to consider the

theoretical dierences and practical similarities between inoperability and

invalidity. e most direct account from the Supreme Court of Canada

was outlined by Bastarache J, who wrote for the majority in the  deci-

sion of Tranchemontagne v Ontario (Director, Disability Support Program):

is primacy provision has both similarities and dierences with s.  of

the Constitution Act, , which announces the supremacy of the Con-

stitution. In terms of similarities, both provisions function to eliminate

the eects of inconsistent legislation. At the end of the day, whether

there is a conict with the Code or the Constitution, the ultimate eect

is that the other provision is not followed and, for the purposes of that

particular application, it is as if the legislation was never enacted. But

in my view, the dierences between the two provisions are far more

important. A provision declared invalid pursuant to s.  of the Consti-

tution Act,  was never validly enacted to begin with. It never existed

as valid law because the legislature enacting it never had the authority

to pass it. But when a provision is inapplicable pursuant to s.  of the

Code, there is no statement being made as to its validity. e legislature

had the power to enact the conicting provision; it just so happens that

the legislature also enacted another law that takes precedence.

Unlike a declaration of invalidity, a declaration of inoperability does not

question the legal validity of a provision, but rather prioritizes one statute

over another one in the interpretive exercise. is bears some resemblance

to the paramountcy rule, which holds a provincial law inoperable to the

 Tranchemontagne v Ontario (Director, Disability Support Program),  SCC  at para

 [Tranchemontagne SCC]. Constitution Act, , being Schedule B to the Canada Act

 (UK), , c .