,......

1
~OURCES

I.I Definition of constitutional law 1-1

1.2 Constitution Act, I 867 1-3
I .3 Constitution Act, 1982 1-6
1.4 Constitution of Canada / -7
1.5 Imperial statutes 1-12.2
1.6 Canadian statutes I -I 2.3
1.7 Parliamentary privilege 1-13
1.8 Case law 1-17
1.9 Prerogative 1-18
I.JO Conventions 1-22.1
(a) Definition of conventions 1-22.1
(b) Conventions in the courts 1-22.2
(c) Convention and usage /-25
(d) Convention and agreement /-27
(e) Convention and law 1-28
(I) Convention and policy 1-31

1.1 Definition of constitutional law

Constitutional law is the law prescribing the exercise of power by the organs
of a State. It explains which organs can exercise legislative power (making new
laws), executive power (implementing the laws) and judicial power (adjudicating
disputes), and what the limitations on those powers are. In a federal state, the
allocation of governmental powers (legislative, executive and judicial) among
central and regional (state or provincial) authorities is a basic concern. The rules
of federalism are especially significant in Canada because they protect the cultural.
linguistic and regional diversity of the nation. Civil liberties are also part of
constitutional law, because civil liberties may be created by the rules that limit the
exercise of governmental power over individuals. A constitution has been
described as "a mirror reflecting the national soul":1 it must recognize and
protect the values of a nation.

Cheffins and Tucker, The Constitutional Process in Canada (2nd ed .. 1976), 4. For an elegant
analysis of the Constitution of Canada and how it reflects "two constitutional logics", one
accommodating the particular, local communities who joined together (or were present) in 1867.
and the other giving effect to the universal principles of governance that were adopted in 1982, see
B. L. Berger, "Children of two logics: A way into Canadiunconstitutionalculture" (2013) I I Int. J.
of Con. Law 319.

1-1 (Constitutional Law) (2014 - Rel. I)

 .!_.:1.~l_:S~O~U'...!:R:.::.C.=
ES:,_____ _ __ -· . - -· .- - -- -- -

The word "constitutional!: i: ·. "dimes used to conve .

government that is lim!ted by l,· ' ''. ~'!ri :he phrase "rule of ~a:~; _idea of a
convey the same idea. Th s t • n•·. .,:-nbe a society in Which is USC(! to
cials must act in accordance \•'l' ·, • -~~ law. For this to be a . &overnrnen
o ffi1 . . .. . . rea1Hy t
t be available to c1t1zens w11. ·. or!iclcl1s act outside the Ia •. rernec11,..
mu S . . . . . .. . d w. This 1. -~
eq uires an independent Judiciary ,.int, :,n m ependent legal profess· n turn
r . h p . ion. In C
the rule of law reaches up mto t e ;.11 hament of Canada and the Le . anada,
·h · h. h gislatu
the provinces, each of w~1c _must stday wh1t ifn t h~ phowers allocated to that l;eslof
government by the constitution, an eac o w 1c must respect the . . . e of
. . L d. b CiVJ) hbe .
guaranteed by the constitution.. . aws enacte m reach of the constit t· rt1es
d h l . u ion may be
challenged in the courts by c1t1zens, an t e aws_will be struck down b
Eg of remedies courts. Actions by government departments, public agencies, official Y the
. h' h 1· . I "d d b h s and th
police must also stay w1td mt e 1m1ts a(j1. down dy t e constitution and by the Ia:
contained in statutes an common 1aw u ge-ma e 1aw). Illegal actions b .
· b h 11 d . th t
officials may e c a enge m e cour s y ct 1zens, an will be remedied b c
b ·t· d · y pubb
th
courts. A society governed by law is obviously the foundation of personal r~ 1
e
. l h . . 1 th " d · f ·
Less obvious _Y, per aps, 1t ts~ so e 1oun ahtion o. econ~mic development, since. rty
investment will not ta~e ~lace m a country w ere pnva~e nghts are not respected.4
In the rest of this introductory chapter, I descnbe the various sources of
constitutional law in Canada. Constitutional law is one of the few legal subjects in
which statutes enacted by Parliament or the provincial Legislatures are not
4
principal sources of the law. a The only statutes that are central to the subject are
the Constitution Act, 1867 and the Constitution Act, 1982, which are enactments
of the Parliament of the United Kingdom passed for the purpose of creating the
federal nation of Canada (in 1867) and making some important changes to the
1867 scheme (in 1982). Canada's history as a British colony explains why these
"foreign" interventions have remained fundamental to Canada's constitutional
law; this will be pursued in the next two chapters. 4 b

2 W. Waluchow, "Constitutionalism" (2002) in Stanford Encyclopedia of Philosophy, online at

htt p://plato .stanford .edu/entries/consti tutionalism.
3 Canadian-focussed contributions to the vast literature on the rule of law include W.J. Newmand
"The Principles of the Rule of Law and Parliamentary Sovereignty in Constitutional Theory an
Litigation" (2005) 16 Nat. J. Con. Law 175; D. Dyzenhaus, "The Logic of the Rule of Law: L~;;
from Willis" (2005) 55 U. Toronto L.J. 691; P.W. Hogg and C.R. Zwibel, ..The Ru_l~ofLa~:w on
Supreme Court of Canada" (2005) 55 U. Toronto L.J. 715. See also ch. I5. Judicial Re
Federal Grounds, under heading 15 9(g) "Unwritten constitutional principles'', below._ /(Basic
4 M • Olson, Power and Prosperity (B~sic Books, 2000); H. De Soto. The Mystery of Capita
Books, 20?0)- h Dieni1y of
4a I was driven to reflect on this feature of constitutional law by J. Waldron. T ( theory).
1
Legislation ( 1999), which justly criticizes the neglect of legislation in jurisprudence ( ega
4b Chapters 2, Reception, and 3, Independence, below.

1-2
..
__ _ ::. -:,i_~ _·.:..:_ . • 101 . ACT, 1867 1.2

I. 2 Constitution Act, 1867

In most countries, the bulk of tn-_ O !'St: : · ._ ~: ~ '. ~-- ,~ contained in a single
constitutional document, which c· a b~ .. •. : :.. )uali) 1s described as " the
Constitution". In most cases, this d r u1r. e,11 ... :1:!. e into being after the gaining
of independence, or after a revolut; on, o , ::.Le· · - war. and was intended to
symbolize and legitimize a new regim cf ~a•,· ::. the l.'nit~d States, for example,
the constitutional document of 1787 (and 1b me ,dments) 1s the Constitution. 5 It How
was adopted after the American colonists had won their independence from US
Britain by war. Naturally, the brilliant men who framed that document borrowed constitu
from their British traditions, as well as from other sources. But they wanted a tion
document that would be complete in itself, for the previous constitutional rules came
had been irrevocably repudiated, and the new document was to be the foundation
stone of the new nation. Accordingly, they set out the essentials of the entire
about
scheme of government - legislative, executive and judicial - - in one impressive
document.
In Canada (as in the United Kingdom), there is no single document
comparable to the Constitution of the United States, and the word "Constitu-
tion"6 accordingly lacks a definite meaning. 7 The closest approximation to such a
document is the British North America Act, 1867, 8 which was renamed the
Constitution Act, 1867 in 1982.9 The B.N.A. Act (as I shall continue to call it in
historical contexts) created the new Dominion of Canada by uniting three of the
colonies of British North America and by providing the framework for the
admission of all the other British North American colonies and territories. 10 The
B.N.A. Act established the rules of federalism, that is, the rules that allocate
governmental power between the central institutions (especially the federal
Parliament) and the provincial institutions (especially the provincial Legislatures).

5 The document was adopted by a constitutional convention that met in Philadelphia in 1787. It was
subject to ratification by the states, and was effective when the ninth state, New Hampshire, ratified
it in 1788. The new government was organized in 1789.
6 For discussion of the meaning of "constitution", see Wheare, Modern Constitutions (2nd ed.,
1966), 2-4; M.S.R. Palmer, " Using Constitutional Realism to Identify the Complete Constitution:
Lessons from an Unwritten Constitution" (2006) 54 Am. J . Comp. Law 587; M .S.R. Palmer,
"What is New Zealand's constitution and who interprets it? Constitutional realism and the
importance of public office holders" (2006) 17 Public Law Review 133.
7 There is a definition of "Constitution of Canada" ins. 52(2) of the Constitution Act, 1982. T his
definition applies when that term is used in the Constitution Act, 1982: see sec. 1.4, --constitution of
Canada", below.
8 The Constitution Act, 1867 (U.K.) 30 & 31 Viet., c. 3, is reproduced in R .S.C . 1985, Appendix II,
No. 5. All the other instruments of the Constitution of Canada, as defined in s. 52(2) of the
Constitution Act, 1982, are in the same Appendix II, along with some other instruments of
constitutional interest. Department of Justice, Canada, A Consolidation of the Constitution Acts.
1867 to I 982 (l 989) is a convenient consolidation of the C onstitution Acts. Part of this
consolidation is printed with permission as an appendix to this book .
9 Constitution Act, 1982, s. 53(2).
IO The history of confederation is related in ch. 2, Reception, under heading, 2.4, "Confederation,"
below.

1-3 (Constitutional Law) (20 13 - Rel. 1)

 1.3 SOURCES

ted the Canadian Bill of Rights, 2~ : .-. .i;--; ~~ iacted ~s a federal st

adop d ent to the B.N.A. Act, and ,:. w.-., ,. r::1,i.de applicable only t !lute, not
an amen m . dd , '· d ' . o •eder I ai
The Constitution Act, I 982 finally a . t . . ~a a s constitutional Ia a ~aw,.
. h the Canadian Charter of Right•; ;;_;., .1 n eedoms - which. w a hill or
ng ts - n _. . , . IS entr
(that is, alterable only by the process of ~·Jn -.)•Jttonal amendment) and a ~chC<l
to provincial as well as federal laws. PPhcablc

l .3 Constitution Act, 1982

As the foregoing account shows, the constitutional settlement of 1982

some important repa1rs · to Canada ' s constltutlona
· · 1 1aw: a domestic an. mad .e
. C d ..,ending
formula was adopted; the authority over ana a of the United Ki d
·
(imperial) Parliament ·
_w~~ termmate d; an d t h_e Ch ·
. . arter of Rig~ts om
ng But
was adopted.
in terms of the access1b1hty and comprehens1b1hty of Canada s constitutional 1
very little was accomplished. The leading instrument of the 1982 settlement aw
23 f . . was
the Canada Act 1982, a short statute o the Umted Kingdom Parliament, which
terminated the authority over Canada of the United Kingdom Parliament.
Schedule B of the Canada Act 1982 was the Constitution Act, 1982, 24 which
contains the Charter of Rights, the amending formula and the other changes to
Canada's constitutional law. Neither the Canada Act 1982 nor the Constitution
Act, 1982 purports to be a codification or even consolidation of Canada's
constitutional law. In fact, the two 1982 statutes are not even integrated into
earlier constitutional instruments. The Canada Act 1982 consists of only four
short sections, 25 none of which purports to be an amendment of the B.N.A. Act.
The Constitution Act, 1982 is longer - 60 sections - and it makes a few
amendments to the B.N .A. Act, 26 but for the most part it too is a self-sufficient
instrument. In a sense, the two 1982 statutes worsen the formal state of Canada's
constitutional law, because they add two more statutes to the variety of sources
which existed before.
The Constitution Act, 1982 does do two things which are intended to effect
some modernization and rationalization of Canada's constitutional law. First, the
name of the B.N.A. Act is changed to the Constitution Act, 1867.27 This cha~ge
seems to me to smack of re-writing history, and inevitably leads to confusion wttb

21 The uni9uely Canadian issues of language rights and denominational-school rights could not be
evaded_m I ~67 and were dealt with in ss. 93 and 133 of the B.N.A. Act. ·
22 10 80
Canadi~n Bill ?f Rights, R.S.C. 1985, Appendix III. The Canadian Bill of Rights is set out
append1x to this book. It is the subject of ch. 35, below.
23
24 Thu.KC. Slats_. 19.82 , c. 11. The Canada Act 1982 is set out in an appendix to this book.
e onshtulton Act 1982 · . . .
25 Section 1 • ' is set out man appendix to this book. 5eetion2
terminatemrrporat~ the Constitution Act, 1982 as Schedule B to the Canada Act 19.82 · rporates
a French t ~ au th0 flty over Canada of the United Kingdom Parliament. Section 3 ,nco
8
version as Schedule A S . 4 . .
26 Constitution Act 198 · ect1on gives the short title.
2
27 Id., s. 53( 2). The l~t , ss. 50, 51 , 53 and schedule, item I. Constitution
Acts. er B.N.A. Acts (amending the I867 Act) are similarly changed to

1·6
 CO -~ ."t fl lT!' .i'"~ l1F CANADA 1.4
-------- - -- ·--
titution Act, 1982, which, as r 1"ti? · '·" ·•t', i• Ot technically an
the ConS (C . . , •. .
ent to the B.N .A. Act onst1 tut1l1.t .'.: . • •·..·_ . :::. ,i; ~ 1982, to avoid
amendm • , . . \. d
. ·ty the dates of the two mstrumer.b c..' y. : (·, Y~ tr.. 1>~ u .
ambigm ' d , - . A
A second rationa_lization atte~1~te 0y n,~ "- ... ,\~ 1: l _, n . ' t , 1982 is the
. •on for the first ume of a defimtion of hi; ,ti-,_~;; 'i..✓C ~t1 .ut1on of Canada".
provisidefinition
That · d'1scussed 1·n the next se~
. • 1s t·r- ·1 e r- ti"
.1.; 1-., , - J
· ~··~-cir,,t
• •

l .4 Constitution of Canada

The phrase "Constitution of Canada" 1s defined m s. 52(2) of the

28
Constitution Act, 1982, as follows:
52.(2) The Constitution of Canada includes
(a} the Canada Act 1982, including this Act;
(b) the Acts and orders referred to in the schedule; and
(c) any amendment to any Act or order referred to in paragraph (a) or (b).

The definition of the Constitution of Canada includes three categories of

instruments. The first category (paragraph (a)) is the Canada Act 1982, which
includes the Constitution Act, 1982 (being Schedule B of the Canada Act 1982).
The second category (paragraph (b)) is a list of 30 Acts and orders in the schedule
to the Constitution Act, 1982. This list includes the Constitution Act, 1867 and its
amendments, the orders in council and statutes admitting or creating new
provinces or altering boundaries, 29 and the Statute of Westminster. 30 The third
category (paragraph (c)) comprises the amendments which may in the future be
made to any of the instruments in the first two categories. 31 At the time of writing
(2012), there have been 11 such amendments. 32

28 See W.J. Newman, "Defining the 'Constitution of Canada' since 1982" (2003) 22 Supreme Court
LR. (2d) 423.
29 The admission or creation of new provinces after 1867 is described in ch. 2, Reception, under
heading 2.5, "Admission of new provinces and territories", below. In Hogan v. N/Jd. (2000) 183
D.L.R. (4th) 225 (Nfld. C.A.), it was held that the Terms ofUnion of Newfoundland with Canada
were part of the Constitution of Canada, because, although not listed in the schedule to the
Constitution Act, 1982, the Terms of Union were confirmed by, given the force of law by, and set
out in the schedule to, the Newfoundland Act, an imperial statute which is listed (as item 21) in the
schedule to the Constitution Act, 1982; they were "part of the Newfoundland Act by reference"
(para. 44). A contrary conclusion in Hogan would have led to the startling conclusion that the
Terms of Union were unamendable.
30 The Statute of Westminster is described in ch. 3, Independence, under heading 3.3, "Statute of
Westminster, 1931", below.
31 Section 52(2) does not contemplate a future addition to the Constitution that does not take the
form of an amendment to the instruments already forming part of the Constitution of Canada.
Suppose, for example, it was decided to entrench the letters patent constituting the office of
Governor General, and the amending procedure of s. 41 of the Constitution Act, 1982 was
?Perated to accomplish that result. This would be a free-standing addition to the Constitution that
is not caught by the existing definition. It would be necessary to amend the definition by adding a
reference to the new instrument. The Meech Lake Accord of 1987, now lapsed proposed to
remedy this defect in s. 52(2) by adding a new paragraph: "(d) any other amendment to the
Constitution of Canada".
32 The amendments are as follows:

1-7 (Constitutional Law) (2013 - Rel. 1)

 !:
1.4~ ...,:S~O~U~
R.:::CE::S:..,__ _ _ __ -· ·- ______ __ _ __

The Charter of Rights i part of t>,i · ·,:·:;titution of Canad

I of the Constitution Act, I 982, 1,•.:b... ~ ··: ~chedule B of the Ca because it i8
d · 52 ·p /I h · anact Pa
which is expressly nam_e _m ~; ( (..;(d -•:1 · './':- ~ 1 - nghts that the Charte: Act 198
is "freedom of assoc1atton s. 2• ),. ,, ·,1~ Health Servic B ~rah ,
i
(2007) 32a the Supreme Court of c anaCii:!. !(~,' 1 that this guarantea ~gall1ing · 4~

, e Protected case
- - - - - - - -- - ---··· -- - - -- - - - - ~ atrade
(I) Constitution Amendment Procla1rnHiGri ,'.- 81, h..S.C. 1985, Appendi II
s. 25(b), and adding ss. 35(3), 35(4). 35.l 37.l and 54. l to the Consti~ t? No. 46,arne d'
amendment was adopted by the Parliament aud nine Legislatures (all eu ion A.ct, 198/~ng
s. 38 ~f t~e Constitution Act, 1982... xcept Quebec)und:
(2) Constitution Act, 1985 (R~pre~entatton), R.~.C. 1985, Appendix JI, No. _
47
replacing s. 51 of the Const1tut10n Act, 1867. fhts was enacted by the Pa r ' repealingilnd
alone, acting under s. 44 of the Constitution Act, 1982. r iament ofcanaa
(3) Constitution Amendment, 1987 (Newfoundland Act), Can. Stat. Instru a
amending the Newfoundland Act with respect to denominational
amendment was adopted by the Parliament of Canada and Legislature ofo~ ngh1s_ ~
sctets: SI 88.11

acting under s. 43 of the Constitution Act, 1982. ewfoundland,

(4) Constitution Amendment Proclamation, 1993 (New Brunswick Act) Can S
~ent~, _SI 93-54, ~~di~g s. !6.1 to the Charter o~ Rights to give English a:~- lnstru.
lmgmsllc commurut1es equality of status and equal nghts and privileges." This French
was adopted by the Parliament of Canada and the Legislature of New Bruns:~~ndm~nt
under s. 43 of the Constitution Act, 1982. ic , ac1tng
(5) Constitution Amendme~t Proclamation, 1993 (Prince Edward Island), Can. Stat. lnstru
ments, SI 94-50, amendmg the Schedule to the P.E.I. Terms of Union to provid th ·
fixed cr~ssing may substitute for a ste~m (_ferry) service. This amendment was ado~teda~a
the Parltament of Canada and the Leg1sla11ve Assembly of P.E.I., acting under s. 43 0f ,}
Constitution Act, 1982. e
(6) Constitution Amendment Proclamation, 1997 (Newfoundland Act), Can. Stat. Instru.
ments, SI 97-55, amending the Newfoundland Act with respect to religious education. This
amendment was adopted by the Parliament of Canada and the Legislative Assembly of
Newfoundland, acting under ss. 43 and 47 of the Constitution Act, 1982, allowin•
Parliament to proclaim an amendment to the Constitution without a resolution fromth;
Senate.
(7) Constitution Amendment Proclamation, 1997 (Quebec), Can. Stat. Instruments, SI 97-141,
amending s. 93 of the Constitution Act, 1867, so that the provisions regarding the special
protection of denominational schools do not apply to Quebec. This amendment was
adopted by the Parliament of Canada and the National Assembly of Quebec, acting under
s. 43 of the Constitution Act, 1982.
(8) Constitution Amendment Proclamation, 1998 (Newfoundland Act), Can. Stat. Instru·
ments, SI 98-25, amending the Newfoundland Act with respect to religious education. This
amendment (which repealed the 1997 amendment, item (6), above), was adopted by the
Parliament of Canada and the House of Assembly of Newfoundland, acting under s. 43 of
the Constitution Act, 1982.
(9) Constitution Act, 1999 (Nunavut), S.C. 1998, c. 15, Pt. II, providing for representation for
the new territory of Nunavut in the Senate and House of Commons. This was enacted by
the Parliament of Canada alone, acting under s. 44 of the Constitution Act, 1982. SI
(10) Constitution Amendment, 2001 (Newfoundland and Labrador), Can. Stat. Insirum_ents
2002-117, amending the Newfoundland Act by changing the name of the p~oVJnce 1~
"Province of Newfoundland and Labrador". This was enacted by the Parhame;\:e
Canada and the House of Assembly of Newfoundland, acting under s. 43 0
Co_nstitution Act, 1982. . .
;c
1
(11) Fa~r Representation Act, S.C. 2011 , c. 26, replacing s. 51 ( I) of th~ Const1tuuon ~f the
This was enacted by the Parliament of Canada alone. acting under 5·
l867.

Constit~tion Act, 1982. c,R.J91.

J2a Health Services and Support- Facilities Subsector Bargaining Assn. v. B.C. [20071 2S.

l-8
 ____________c_u_:·1_qlTiJTlON OF CANADA 1.4

. , . ht to collective bargaining, not C'.tT'!i/ ~ ~ P. p: ce s of collective

un on •s . ng but the frwts
1 · of past co 11ecuv · ·,a:gr;i:'"';;~;:,· · namely, the collective
bargaining, ·
t entered mto by the union,
· on b ~- ·ti f ,:,!· :,,..c· ~nem · r , with
· the employer.
ag~~mhe~olumbia enacted a statute to t: r.1 1..:;'. ·:\ 1l•e job.. protection provisions
anus. ·t layoffs, bumpmg · an d cont ract1,,~· o..i· t) ::.,f' t he .:. ollect1ve
· agreements
(sen1on Y,hospitals and their. . . dl ..
umoruze 1e,Htl'! c ite •.'Ort-:- rs The goal was to help
between ffi . l _, . . h .
e hospitals operate more e 1c1ent Y am.1 reit) m 1. , 1~ lab_our costs. In the past it
th
d !ways been assumed that a statute 'I: as S'-l? noi' m force to a collective
ha a t and would preva1·1 over a co 11 ecttve . agreement m · the case of conflict
agree men ' .
However, the Court ~eld that the statute w~~ inv~lid as a breach of freedom of
association. The cunous result of the dec1S1on 1s that a collective agreement
negotiated betwee~ a_union and an employer is now ~uper~or to a statute. 32b It has
the same status as if it were part of the Charter of Rights itself, that is, part of the
32
Constitution of Canada. c
The definition of the "Constitution of Canada" in s. 52(2) is introduced by
the word "includes". In general, in Canadian statutes, the word "includes"
indicates that the definition is not exhaustive. The word "means" is customary for
an exhaustive definition. In New Brunswick Broadcasting Co. v. Nova Scotia
(1993), 33 a majority of the Supreme Court of Canada held that the definition in s.
52(2) is not exhaustive. 33 a The Court held that the unwritten doctrine of
parliamentary privilege should be included in the definition, although s. 52(2)
makes no mention of parliamentary privilege. The inclusion of parliamentary
privilege was said to be implied by the reference in the preamble of the
Constitution Act, 1867 to "a constitution similar in principle to that of the United
Kingdom". As Sopinka J. commented in a separate opinion,34 this vague phrase is
a frail foundation for the addition of new elements to the definition of the

32b The parties to a collective agreement privately negotiate a compromise of their own interests
without regard for wider public interests. There is nothing wrong with that, but in areas like
health care and education (for example) wider public interests are involved. That is why, in
principle, a statute enacted by the Legislature ought to prevail over a collective agreement. The
Legislature represents all of the people of the province, it debates the issues in public, and it i
ultimately accountable to the people through the electoral proces . See R.E. Charney, ·'The
Contract Clause Comes to Canada: The British Columbia Health Services Case and the Sanctit
of Collective Agreements" (2007) 23 Nat. J. Con. Law 65. In my view, if there i to be
constitutional protection for the collective bargaining process (as the Court has now decided). it
ought to stop short of constitutional protection for the collective agreement.
32c Charter rights differ from other provisions of the Constitution in that hurter right are, by
virtue of s. I of the Charter, subject to reasonable limits prescribed by law. Collective ugreement
could therefore be amended by a statute that satisfied the tandard tipulated by the Supreme
Court of Canada for s. I justification: ch. 38, Limitation of Right . below. In thi ca . however,
the majority of the Court held that the statute was not saved by . I.
33 (1993] I S.C.R. 319. The majority opinion was written by Mclachlin J.. with whom La Foret.
L'Heureux-Du be, Gonthier and Iacobucci JJ. agreed. Lamer C.J. and Sopin ka J.. who each wro~e
a concurring opinion, and Cory J., who wrote a dis en ting opinion, did not need to rule, and ~id
not rule, on the question whether the definition of the Constitution of Canada was ex.hau tive,
and, if not, whether it included parliamentary privilege.
33a See also Re Senate Refonn [2014] I S.C.R. 704, 2014 sec 32, para. 24.
34 Id., 396.

1-9 (Constitutional Law) (20l4 - Rel. l)

 1.4 SOURCES

~
"Constitution of Canada" in s. 52(2). Moreo ·ei, ·,.r •...:ourt's d . .
. d" . I
the definition is capable of JU 1c1a expansion. b
.' ·,- , :•l~ of im Ii ec1s10
. n tneans
of the . .
Consutut1on. Th.
1s .
raises th e po
... .•· of furth
~._.,;.,
P cations f
ro... th."41
parts . - er add· • .., 0th.
destroys the certamty apparently afforded by to: !1s, of 30 . •lions h-h~
JS instrurn , " '"lll
scheduled to s. 52(2). en1s that .
The Court in New Brunswick Broadcasting d•d ·iot add a n is
scheduled list referred to in s. 52(2). What the Court added ew dccu111en, to tL
. . ·1 Thi was the 'lC
doctrine of parliamentary pnv1 ege. s was a surprising de . . . Unv.,ritt-
.. . ) . d II . c1s1on in th "O
defimtion m s. 52(2 1s expresse so e y m terms of written i t at ~
seemed to presuppose that the Constitution of Canada was c~:~men1s, Which
instruments. 36 Could the Court now add additional written insted to Written
scheduled list of Acts and orders? Obviously, this cannot be ruledrume?ts to the
1
the Court's holding that the definition in s. 52(2) is not ex:ut ~ view of
considering the specificity of the scheduled list of Acts and orders audSllve. Bu~
, an the
consequences (namely, supremacy and entrenchment, described 1 t . grave
section) of the inclusion of other instruments, a court should exercise gra er lil ~his
. . d k dd.. 37 h 3 . eatcauhon
when mVIte to ma e a 1t10ns to t e O mstruments in the schedul Js T
· d e. ruly
compellmg reasons are neede to treat the scheduled list as oth h
• 39 I • . h er t an
ex haust1ve. t 1s important to note t at the scheduled list omits
·
mstruments of importance.
· For exampIe, the definition omits the pre.many
1867
instruments which governed the territory now forming part of Ontario and
Quebec: the Royal Proclamation of 1763, the Quebec Act of 1774, the
Constitutional Act of 1791 and the Union Act of 1840. 40 Also excluded are the
pre-I 867 instruments which are still the constitutions of Nova Scotia (1749),
Prince Edward Island (1769), New Brunswick (1784), Newfoundland (1832) and
British Columbia (1866).41 Nor does the definition include the Letters Patent of
1947,42 which constitute the office of Governor General, or the Supreme Court

35 B.C. v. Can. (Vancouver Island Ry.)[1994] 2S.C.R.41 , 94per Iacobucci1. forCourt(lca~ngopen

"possibility that documents not listed in s. 52(2) might be considered constitutional mcertam
contexts"). .
36 But see ch. 15, Judicial Review on Federal Grounds, under heading 15.9(g), "Unwnum
constitutional principles", below. . . d ts
37 A possible function for the word includes would be to catch future consutuuo_nal am~:r;:0
that are missed by para, (c) ofs. 52(2): see note 3I, above. The argument for treatmg thc
as exhaustive is very powerful with respect to instruments that existed in I98~. . . ,, ~ rdcd 10
38 Monahan, Constitutional Law(2nd ed., 2002), 181-183, approves of the_"fle~bility .a 1~82 that
the courts in adding new elements to the definition, including statutes Ill ex1ster ·~Act. The
0
~uld have been and were not listed in the schedule, for example, the Suprem~ ; of Canada,
disadvantage of this flexibility is that statutes making changes to the Supreme oul gislatioo (to
the powers of the Governor General or Lieutenant Governor, or official langu~ges :und that a
give three examples) are now all vulnerable to constitutional attack on t e g~meot, under
constitutional amendment should have been used for the change: see ch. 4· Amen
heading 4.2(c), "Constitution of Canada", below. . ution of B.C. not
39 So held in Re Dixon (1986) 31 D.L.R. (4th) 546, 556-557 (8.C.S.C.) (Cons1::tutionoffll.S.not
included); Maclean v. A.G.N.S. (1987) 35 D.L.R. (4th) 306 (N.S.S.C.) (Cons
included).
40 These instruments are described in ch. 2, Reception, below.
41 These instruments are also described in ch. 2, Reception, below.

I-IO
>
_ _ _ _ _ __ _ _ __ ___c_::nT UilCr, OFCA ADA 1.4

43 which establishes the Supreme Court of ,.:,::;.:_~.,: . ~: ~ ~, Canadian Bill of

Act,
. h 44 which remams · m ~
· ,orce notw1'th stanomg Ln·' ar;._,,_,
. ,01, o f the Charter of
Rig ts,
Rights. . f .
Among the many important statutes o a -~cD3! \tu1•v;i:J.: ch-racter that are not
. ded in the schedule to the Constitution k·t, 19?2 s •i r Act of Settlement
inc1u (U.K.), wh1c· h 1~
· an_1mpena
· . 1stau ~ ·1:-li am.ent of the United,
t te e act ,Cl· b_Y,·l :- !_
1701
Kingdom with ap_Phcation not only to the Uruted f ·11gdom but also to its
dominions, includmg Canada. The Act was part t tl.e revolution settlement
nacted on the accession to the English throne of William and Mary which
:onowed the turbulent reigns of the Stuart kings. The Act, among other things,
settled one of the succession issues that was a source of conflict in the seventeenth
century. The Act provided that a Roman Catholic, or a person married to a
Roman Catholic, may not succeed to the Crown of England. In O'Donohue v. The
Queen (2003),44a an application was brought to the Superior Court of Justice in
Ontario seeking a declaration that these provisions of the Act discriminated on the
basis of religion and were of no force or effect in Canada by virtue of the equality
guarantee in s. 15 of the Charter of Rights. Rouleau J. struck out the application
on the basis that the rules of succession in the Act of Settlement were part of the
Constitution of Canada and were not subject to the Charter of Rights. Following
the New Brunswick Broadcasting case, he referred to the preamble of the
Constitution Act, 1867, and he pointed to the reference in the preamble to a
federal union "under the Crown of the United Kingdom". Canada was a
constitutional monarchy, and the rules of succession to the throne were essential
to the proper functioning of the system of government. Moreover, Canada's
monarch was shared with the United Kingdom (and other Commonwealth
countries) so that the rules of succession had to be the same as those of the United
Kingdom. 44 b If he were to use the Charter of Rights to make a unilateral
Canadian change to the rules of succession, this would bring about a fundamental
change in the office of the Queen without going through the procedure for a
constitutional amendment. This line of reasoning led Rouleau J. to his conclusion
that, although the Act of Settlement was not scheduled to the Constitution Act,
1982, the impugned provisions of the Act were nonetheless part of the
Constitution of Canada. Rouleau J.'s decision and reasons were affirmed by the
Court of Appeal.
In an earlier version of this book, I interpreted the O'Donohue decision as
taking the radical step of adding an unscheduled statute to the Constitution of
Canada. However, I now think that is incorrect. Rouleau J. is careful not to go
that far. His opinion is restricted to the rules of succession in the Act of Settlement:

42 R.S.C. 1985, Appendix II, No. 3I.

43 R.S.C. 1985, c. S-26. But see note 38, above.
44 R.S.C. 1985, Appendix III.
44a (2003), 2003 CarswellOnt 2573 (Ont. S.C.J.); affd. (2005), 2005 CarswellOnt 951 (Ont. C.A.);
folld . Teskey v. Can. (2014) 377 D.L.R. (4th) 39, 2014 ONCA 612 (Ont. C.A.).
44b Id., paras. 31-34.

1-11 (Constitutional Law) (2015 - Rel. l)

 1.5 SOURCES

constitutional rules. Some CamH.1:r :-,_-; led that the lack of

reproach to Canada's nationl:·x •,L R~lt this kind of thinkin sue~ a docuinc .
. . i 1 t g, while cl d . nt 18
of Canadian na t1onu1ism, 1s pru 1·,•.. : \ ,ll >Ollom a desire to a in th a
and the idea that a new con~t! 1i..: ;, >i~ (.;Ould somehow becopy th e llnitcd Sc &arb
. . manufa taies.
would be more Canadian, m01 .: 1e~r;t': : 'i 1le and more inspiri .
1 cturec1 Wh· ,
. ,. ng 1s unh· . 1c
naive. The one real d1sadvamc1/..: o, ...Y: ~osence of a comprehe . 1stonca1 0
. ns1ve co . and
document is that the rules of t"'e L 1 1,s. ·::ut1on are not readily _nstitution
1
. . A t l Y. 1-'" -.1 ·' ·b C . .
lawyers. The Const1tut10n c , . · .1 • ·, u , c onst1tut10n Act, 1982 accessible .to non.a
latter) are rather detailed lawy rs· , ~1~ 1 ·,.:ments, lacking in elegance (edSJ)eci~IJythe
. , h . an brev11
not always easy to un derstana A l!J, ~=- emp as1zed above, they d Yand
,. . . o not by
1 f C
means include all of the ru es o '.in~ut:rn const1tut1onal law. These any
I
be hunted down in a variety of ph t.:""S. In the following sections of th~ es haveto
. 1s chapt
shall briefly survey those vanous sources. er, I

1.5 Imperial statutes

The Cons~itution Act, 1867 and the dC~nstiCtution Act, 1982 are_ both imperial
statutes, that 1s to say, statutes enacte 1or anada by the Umted Kin d
.
Parliament in its role as 1mpena. I p arI'1ament. 47 These two statutes are withig om
h
definition of the "Constitution of Canada" in s. 52(2) of the Constitution~ e
. I Ct,
J982, and they are the two most important e ements of the Constitution of
Canada. Also within the definition are 17 other imperial statutes, mostl
amendments to the Constitution Act, 1867, and four orders in council made unde~
the authority of s. 146 of the Constitution Act, 1867, admitting to Canada the
federal territories and the provinces of British Columbia and Prince Edward
Island.
As the next two chapters of this book will explain, imperial statutes that are
not part of the "Constitution of Canada"47a no longer have any special status in
Canada. They are not supreme over the statutes enacted by Parliament or the
Legislatures, and like any other statute they are subject to amendment or repeal by
Parliament or by the Legislatures of the provinces, depending on which level of
government has authority over the subject matter of the particular imperial
statute. For those imperial statutes that are part of the Constitution of Canada.
they are supreme over other laws and can be amended or repealed only in
accordance with the amending procedures of Part V of the Constitution of
Canada.

47 See ch. 2, Reception, under heading 2.6. "Imperial statutes". below. .

47a Generally speaking, only those imperial statutes listed in the schedule to the Constituuon Act.
1982 are part of the Constitution of Canada. but in O'Donohue v. The Queen (2003). note-14a.
above, the rules of succession to the throne. although contained in an unlisted imperial staiutc.
were held to be part of the Constitution of Canada.

1-12.2
 _ _ _ _ _ __ _ __ _ _ _ _C_A_r_
: Arn f . 1 -~,A UTES 1.6

Canadian statutes
1.6
The definition of the "Constitution of Canada· in ., · -~( ti ;)f the Constitution
1982 includes eight Canadian statutes. Three i:,f .b .:e <'H' l kd lhe provinces
1
Act,
(Continued on page 1-13)

l-l2.3 (Constitutional Law) (2014 - Rel. \)

 ___________P_A_R_U_A_
M_:~r,.Rv rP._tvL~ ~.]_2
,-----
'toba, Alberta nd S katc_h wnn. Th . st l tr·, . . 1. , , .•. , •t , un the
of MaJU ere te province out ot federal l mton i- , ,, 1•< !1 • •.~ ~ • J O h
Power1toparliament by the on t1tull . . n .A ~• 1 -71 4 '1 • :.r ' >l . r • : . 1\m .Ji n
f ~ s were amendments to the on t1lut1on ct. \8~7 ·:, . .... ~ 11 \.'i e •
talUtod und r limited powc~s of at~\endm nt g unt ..,1lo th.. f~\ 1~l ,U'h. m nl by
en ~on titution Act, 1867 (including an am nwn nt 1 • i • ,j,,i ,_-.
tilt '{l\eeight Canadian statute forming p of th C ns ti..1,: '•Hlt Ca...ldu w re
rse enacted by the federal Par\iam nt in th · ·11 v ,., .,y l . v r th ir
of cou ti . . f th "C . . . , ,
. ion in the de m1t1on o e on Lttut1on ot :.. .1~1,1 1: th I th y ure
1
~ uprctne over other federal tutut by virlu of s. 52(1) f lh onstituti n
Act. t982, and are entrenched (unallerahle ex pl by u of the am ndin pro-
cedures) by virtue of s. 52(~) of the C n lit~tion Act, 1982.
There arc other Canadian tatutc , which, although not in lud d in th d f-
inition of the "Con titution of Ca~ada", are con tituti nal in th n th t they
C5llbli~h or regulate some of the important in titulion f th untry. Th u-
50
nadian Bill of Rights of 1960, which purp rt t limit th p r of th fed •rul
Parliament, 1 is the clcare t example f uch a Ultut . Th statut thut rent d the;
uprcme Court of Canada in 187 552 i als in thi cate r,ory, nd th t tut that
created the Federal Court of Canada in 1971'~ ha a \aim to in lud d , I\.
One might al o include federal tatuL up n 'U h basic mutt r a th frnnchi
and citizen hip. ln each province, t o, th rear tntut that tabli ·h the y ~ m
of col.lJU, that provide for elections t th L gislutur and that r gu\at th p -
cceding of the Legislature; these 'latute nrc cl ur\y nstituti nal in h ra t r.
A. well, Sukatchewan. Alberta and Qu b · hav ·ach noel d a Bill of Right .~14
Of course, tatute lhat arc not included in th dcflniti n f th n titution r
Canada may be repealed or amended by the rdinury l gi ·lutiv proc -, .

1.7 Parliamentary privilege

The federal Houses of Parliom nt und th provincial I•gislutiv · 1ss •mbli s
poi,,ses a set of powers and privil g s thnt ur "n c"ssm·y to th ir ·npn ·ity to
function as legislative budics'' .~~ Th ·s • pow ·rs nnd ri 1hts l\l'' known ·oil ·tiv \y
a "parliamentary privilegc''.~~11 In Ncw lln111swie'k /Jrmukast /11,q o. v. Novt1

4H Sc ch. 2. Rec p1lon, unu r hcndln~ 2., (I)), "T nhrn· unll prnh·I provln · • '\ b I ~ ,
49 See ch. 4, Am ntlm nl, und ·r h ·ndln 4,6, 11P d rol Pnl'llum nt olon {K, 44)", t lo~ .
~ IUl. •. 1985, Appendix Ill.
51 Sec h. 35. unudlun BIil of RI ht , h l(lW,
2 S ch. M, Supr m 'our\ of ' 01111<111, h low.
5 S ch. 7, 'oul'IN, und •r h 1uHn 7,l(h). "I •cl rnl t uul'I of ( 't111111lti", h l,w •
~ S · ch. , Civil Lil nl , uncl r h •11ll 1114 34..Hh), "S1111u1my hill ,,r rljlhl ''. h low.
55 New llru11 ,wi, k /111,o<ll'aNl/1111 ,,, v. N.S. 11 1>1>31 I S,( ',It ) Ii), ,\8 \ II I'M •l ud11ln J. fu th
m1,}orlly. ..
55a , W.J. N·wniun. "P Ii 1m nt ry Pr vii n dlun 'on~l llll 011 ml lh ,mfl l(KlR)
19 Ottnwu I .. K v. ~73,

1.. 1. ( .on1ultul om1I U\w) ( 010 - R \. l)

t.7 SOURCES - ----~

. ( ) the Supreme Court of Canada h. ld ,h_at the Nova Scotia 1 .

1993 56
Scoti\1 id ban the televising of its procee iTi/. cause the powerteglslative
assem y ~~fu the legislative chamber was pJ:i -,. !1e assembly's Parlioexcludt
"strangers rom • d · illlle
. . p r1amentary privilege also me1u es !i !t' om of speech 1. n~
1
~nvl1de~e. ·mmar uni' ty from legal proceedings for th.fr::;. ~aid in debate s1 11n debate
me u mg 1 .· , •. . , • • Prob~l '
. des exclusive control of the assembly s _1:t.., . edmgs, as well as 'lllly
a1so me1u d' 58 Th r. :, , . . contr
of publication of debates and procee i~gs. . e cJf. ~:1~ge certainly includes o1
. h f mbers of parliament or legislauve assen,olies not to testify. the
ng t o me . . .. . 59 1n cou
. s while Parliament or the Legislature 1s M session. rt
proceedmg th . .
In Canada v. Vaid (2005),60 it was argued that e pnvileges of theParliarnen
1
of Canada included the management of all the ~mployees of the Senate and th
House of Commons (the legislative branch). The issue was sparked by acomp! . e
to the Canadian Human Rights · . . bth
Comnuss1on y e ch " of the Speakeamt
auueur
the House. The chauffeur alleged that he had been constructively dismiss~ 0of
grounds that were forbidden by the Canadian Human Rights Act. The House ~
Commons and the Speaker took the position that the hiring and firing of all Hou:
employees were "internal affairs" of Parliament that_ were not subject to review
by any tribunal or court or other body external to Parhament. The Supreme Coun
of Canada rejected this position. The Court held that such a sweeping claim of
parliamentary privilege failed the test of necessity. Exclusive and unreviewable
jurisdiction over all House employees was not necessary for the functioning of
the House of Commons as a deliberative body. The management of some em-
ployees (whom the Court did not identify) was undoubtedly necessary to protect
the deliberative functions of the House, and would be covered by parliamentary
privilege. But the privilege did not extend to the majority of the House's employ-
ees (2,377 in number), who staffed the restaurant, the library, public infonnation,
repair and maintenance, parking and traffic control, and performed manifold other
functions that were only indirectly connected to the legislative proceedingsin the
House. The Speaker's chauffeur was in this latter category. His dismissal was not
an unreviewable matter of parliamentary privilege.
Parliamentary privilege could be regarded as a branch of the common law
in that it is not contained in any statute or other written instrument, and it i the
courts who determine its existence and extent. In the New Bruns\1 ick Broadcasting
case, for example, the Supreme Court of Canada asked itself whether the power
to exclude strangers from the legislative chamber was necessary for the proper

56 [199311 S.C.R. 319. The majority opinion was written by McLachlin J., with the concurrence
of ~a Forest, L'Heureux-Dube, Gonthier and Iacobucci JJ. Separate concurring opinions were
wntten by Lamer CJ. and Sopinka J. Cory J. dissented.
51 Janssen-Ortho v. Amgen Can. (2005) 256 D L R (4th) 407 paras 73-79 (Ont. C.A.).
58 Id. , 385 per M~Lachlin J., pointing out that ·th~s~ powers ; nd pri~ileges are possessed b} ,th(
Houses of P~h~ent in the United Kingdom, but noting that parliamentary privilege ml) I)(
59 more extensive m the United Kingdom than in Canada.
r;~wne v. Can. (2004) 69 O.R. (3d) 161 (C.A.).
60
[ 51 1 S.C.R. 667 · Binnie J. wrote the opinion of the Court.

1-14
 PARLIAMENTARY PRIVILEGE 1.7

Scotia's legislative assembly. Ou:: 1r, '; the Coun had

. uoning of Nova the answer was yes d'd 1 the Court t.pn . 1~· •1. •..1e e.• stence of the
th
flJ~c fted itself at t parliamentary privilege is like !l•c r") ~l pu-:: o at1ve, which
sattver,ln this respec 'bed' by the dec1s1ons
.. of the co11ns.~ .'.'.~)·n . : ver. m . the New
pO\
. atso cir · cumscn · · f · •·
d asting case, the maJonty o Ute :: .\ {;,et•. luurt of Canada ·
, ,r111s\1'1.ck Broaeculiar
c characteristics . . to par11amcnr·
· , .. , di .
;:.;-_,, r-n ·m·::_r tnat stmguish
8
attributed two pal prerogative and from other branch .s c-{ th-~. <:,..:nmon law.
it from theroY culiar charactenstic · · of par1·1ament...ry pn. , ·,i 1t 5 ~, iC.:~rd'mg to New
Th~fi~t pedcasting, is that parliamentary privikgc ··;part of the "Constitu-
nr1111swick rdo:,, This aspect of the decision has a:ready been explained and
tio~ of . cana · · h · · d'
62 The second pecuhar c aractenst1c, ace :- mg to New Brunswick
criucized.. g is that the powers authorized by parliamentary privilege are not
Bro~dcaSti;; Charter of Rights. In that case, for example, the majority of the
subJect ~oving determined that the legislative assembly had a parliamentary-
c~ui \ower to exclude strangers from the legislative chamber, did not need
pnvi e~eder and did not consider, whether the assembly's denial of access to the
to cons, ,
. •on media was a breach of the freedom of the press guaranteed by s. 2(b)
telev1s1 .
f th Charter. This 1mmuruty . from the Charter d'1stmgu1s
. . hes parliarnentary pnv- .
~ e\rom the royal prerogative and other common law powers of government;
~gother common law powers must be exercised in conformity with the Charter
f Rights.63 The immunity from the Charter also distinguishes parliamentary
0
rivilege from other powers conferred by the Constitution of Canada on the federal
~arliament and the provincial Legislatures; all the other powers of these legislative
bodies must be exercised in conformity with the Charter of Rights. 64
The powers and privileges of a provincial legislative assembly have been
held to be alterable by a statute enacted by the provincial Legislature, on the basis
that the powers and privileges are part of the "constitution of the province".65
Since 1982, the power of each provincial Legislature over the constitution of the
province is to be found in s. 45 of the Constitution Act, 1982. (The federal
Parliament would possess a similar power over the powers and privileges of each
of the two Houses of Parliament under s. 44 of the Constitution Act, 1982, which
confers power over "the Senate and House of Commons".) It is not clear whether
the decision in New Brunswick Broadcasting, by holding that the powers and
privileges of provincial legislative assemblies are part of the Constitution of
Canada, has deprived the provincial Legislatures of the power to amend the
powers and privileges of their legislative assemblies. Sopinka J., in his separate
opinion in New Brunswick Broadcasting ,66 expressed the opinion, obiter, that this

61 See section 1.9, "Prerogative", below.

62 Section 1.4, "Constitution of Canada", at note 33, above.
63 See ch. 37, Application of Charter, under heading 37.2(g), "Common law", below.
64 See ch. 37, Application of Charter, under heading 37 .2(b), "Parliament or Legislature", below.
where this part of the New Brunswick Broadcasting decision is criticized.
65 Fielding v. Thomas [1896] A.C. 600.
66 [l993] 1 S.C.R. 319,396; Lamer CJ. (at p. 352) expresses a similar view.

1-15 (Constitutional Law) (2010 - Rel. 1)

1.7 SOURCES

was the result of the majority's ~ecis!on, de~cribin ~t · " a high Price ..
in order to escape the Charter . It 1s possible, h0vs.',.ve,·, that the · to Pay
privileges of a provincial legislative assembly would r,..:nain Pa.rt oi~Wers and
tution of the province, and therefore amendable unde : ',. 4 5 , even if theye consti-
part of the Constitution of Canada.67 are aJSo
The ruling in N~w Brunswic~ f!roadcasting es·~b:1:hed the special c .
tutional status of parl~~entary pnvdege, w? ere the r,r,.._ 1le~e was "inhere~~~~1-
the creation of a provmc1al Legislature. Unlike the 1-;rv ,·m:::1al Legislatu t 1n
Iiament has the power, conferred by s. 18 of the Constiiu ion Act, 1867 ~es, Par.
laws defining the privileges of the Senate and House of Commons.
· a 1aw d e fimmg· th e pnv1
enact
· ·1eges of the 1Sarnen1
P:Ut
has exercised this power by enactmg
and House of Commons as being those possessed in 1867 by the Houenate
. ·1 se of
Commons in the United Kingdom. 68 T h e tie d eraI pnv1 eges are therefore a
tained by reference to the law and custom of the House of Commons at ~Cer-
minster. If the existence and scope of a privilege at Westminster is establish~-
then it exists in Ottawa as well without the need for inquiry into its necessity.! '
Since parliamentary privilege at the federal level is legislated, the question
arises whether it enjoys the special constitutional status that attaches to inherent
privilege. In New Brunswick Broadcasting,70 Lamer C.J. , in a separate concurring
opinion, said that "legislated" privilege would lack the constitutional status of
"inherent" privilege. His reasoning was that all other legislative powers conferred
by the Constitution Act, 1867 are subject to the Charter of Rights, and therefore
the laws of Parliament in relation to parliamentary privilege, like any other laws,
should be subject to Charter review. This point seems unanswerable. Moreover,
the other opinions, including the principal majority opinion of McLachlin C.J.,
did not dispute the point. McLachlin C.J. 's reasoning was rather carefully limited
to "inherent" privilege.7 1 However, in Vaid, 72 Binnie J. for the Court said that "the
logic" of the majority opinion "points away from such a conclusion", and "the
point must now be taken as settled". This dictum was obiter, but it was obviously
carefully considered. It seems, therefore, that there is no difference in constitu-
tional status between legislated privilege and inherent privilege. Both are exempt
from the Charter of Rights.

67 The question whether s. 45 of the Constitution Act, 1982 extends to amendments of the Con-
stitution ofCanada is discussed in ch. 4, Amendment, under heading 4. 7, "Provincial Legislature
alone", below.
68 Parliament _of Canada Act, R.S.C. 1985, c. P-1, s. 4. ote
69 Ca_n. _v. Vaid, note 60, ab~ve_, par~. _37 per Binnie J. for the Court. Binnie J. went on 1~ 00
(sull m para. 37) that provmcial pnvilege, lacking the underpinning of s. 18 of the Consu
Act, 1867, would normally have to meet the necessity test.
70 Note 55, above, 364.
71 Id., 393 -394 (answering constitutional question by reference to "inherent" privilege).
72 Note 60, above, para. 33.

1-16
 ""ct, JaW . h C . .
I. l}"'. th task of interpretmg t e onstttcu m 1\ ( 1, , n(t the oth
h ve e . . , er
court a Their decisions constttute preceder- t·~ iu> l.·iu ,_., ~e:) so that
~ ·on~ tatutes. decisional law, usually called C?..::.\! ·; -i•,11, ,J,: i, elops in areas
,u(l)O . .rnade or . ·1 th ' 1 . . c. .• . .. , ., .
~10 fJudge l'tigauon. Wh1 e e courts ro e 1a .,1.',i-'::· (·,it ot mterpre-
. .A o h been l . f d t ·11 .
,~ there a . effect of a senes o prece en s Wb, C,)nstl ~Jte. an important
i,ert
• ihe cu[ll
uJauve . h .. I I . .
odificauon oft e ongma text. n . aJjj ,;; ,1;:.r. the provisions
..n~ even m . 'b • .
""'1.t\111tionor . A t 1867 that d1stn ute 1eg1s1ative {)l°''~ e;· betw~en the central
ila~·~ ·111non c ' . .I ..
~t)leconsu d the provincial Leg1s a_tures are now overh~n by such an accu-
parlia!11ent an that it would be unthinkable to attempt to ar.certain the relevant
u)ationof casesto the Act alone. The Charter of Rights (Part I of the Constitution
~ ecourse 1 d . .
~esbY r has also attracted a vast case ~w . esp1te its much shorter life. Obvi-
}iel, 198 )
2 wthat interprets the Constitution Acts and the other constitutional
..,1 thecase 1a . .
""'y, . al5Oconsutuuonal law.
15
¢111es art f the process of "'mterpretat·10n" , the Supreme Court of Canada has
A~Ped~o find "unwritten" principles that "underlie" the text of the Consti-
~ 1iesitat tS67 and the Constitution Act, 1982.73 We have already noticed the
[l)IIOO Act, f 1· . ·1 hi .
, use of the doctrine o par 1arnen~ pnv1 e_ g e, ~ ch 1s nowhere men-
5
~ ed. the two Acts, to exempt the actions of legislative assemblies from the
- rrnof Rights.74 In Re Remuneration . of Judges (1997),75 the majority of the
: me Court of Canada a_sse~ed that there was an unwritten principle ofj~dicial
independence in the Const1tutton of Canada that could have the effect of mvali-
daring statutes that reduced judicial salaries. La Forest J., in dissent, expressed
ms objection to the limiting of the powers of legislatures "without recourse to
express textual authority" .76 In the Secession Reference (1998),77 the Supreme
Counof Canada invoked unwritten principles of democracy, federalism, consti-
rutionalismand the protection of minorities to hold that, if a province were to
decide in areferendum that it wanted to secede from Canada, the federal govern-
ment and the other provinces would come under a legal duty to enter into nego-
tiations to accomplish the secession.78 These cases illustrate the active and creative
rolethat the modern Supreme Court of Canada has carved out for itself.79 The

73 ~eech. 15, Judicial Review on Federal Grounds, under heading 15.9(g}, "Unwritten constitu-
uonal principles", below.
4 SectionI 7 "P 1· · ·
· , ar 1amentary pnvilege", above.
5 ll997J 3S.C.R. 3.
6 Id. para 316 Thi · · more fully examined in ch. 7, Courts, under heading 7.1 (h), "Intienor
.
co' · . : . sissue 1s
n Re1111s of civil Jurisdiction" below
Sec · 0 ' ·
78 ld.,~st f _Q~ebec_(1998] 2 S.C.R. 217. . ,
pow 8· This issue 1s more fully examined in ch. 5 Federalism, under headmg 5. 7(a}, 'The
79 S enosecede", below. ,
ee alsoch 34 C' ·1L'be . . . " bel ('
tation of civ° '. ,v,. 1 rt1es, under heading 34.7(c), "Implied bill of nghts , . ow unpor-
"Defi •. 11 liberties guarantees)· ch 47 Fundamental Justice under heading 47. lO(b),
m1uon of fu . . "' . ' '
ndamental Justice , below (residuary theory of s. 7).

1-17 (Constitutional Law) (2011 - Rel. 1)

L9 ~~------
SOURCES

c .
nstituuon o a .
-~

f C nada way beyon rr : ': \. ral language of .

lts t-.
cases carry the O
• . of the framers. The~ , _.. e concern (e~p "".\l
d the mtenuons . c: rest.c...J
and way beyon he Court is trespassing mto ill:... ,nore properly left to~
by La Forest J,) that t. b nches of government. Th. 1 a theme that cann the
legislative and execuuve :~roughout this book. '-0 For lJl ~ ent purposes, the ot ~
fully explored h~re. lt runs dt'ngly important source o; onstitutional law l>Oint
. th e law ,s an excee .
1s at cas . . of the common law, that 1s to say, case law Which .
In add1t1on, some . . db h · d . is
tatute or constitution, coul e c aractenze as constttutio al
1·ndependent of any s . n
1 the Crown (meaning the executive government) retains a fe
law For examp e, . f b f w
·..
vest1g1a1preroga 1
t've powers '
which
,
spnng not rom
.
statute,
,
ut rom the com-~
. ..uuvn
·h au· ve is discussed m the next section of this chapter. It 1s also the
law, t e prerog · th 1· · ·
courts which have developed many of the rules concerning e tabthty of the
Crown and its employees.s1The courts have also made much of the law concerning
civil liberties by establishing rules to limit the powers ?f go~e~~ent officials
and administrative agencies, and procedures to enable pnvate md1v1duals to seek
judicial review of administrative action.82 The common law can always be
changed by statute. In almost every field that i_nitially d_evelope~ p~ely ~ com-
mon law, there has been considerable statutory mterventlon, modify mg the Judge-
made rules. That is true of the examples given, but much of the law is still case
law.

1.9 Prerogative
The royal prerogative83 consists of the powers and privileges accorded by
the common law to the Crown. Dicey described it as "the residue of discretionary
or arbitrary authority, which at any given time is left in the hands of the Crown".84
The prerogative is a branch of the common law, because it is the decisions of the
courts which have determined its existence and extent.85

80 Among many cross-references, note in particular, ch. 5, Federalism, under heading 5.5, "Role
of the courts", below, and ch. 36, Charter of Rights, under heading 36.4, "Expansion of judicial
review", below.
81 Sec ch. 10. The Crown, below.
82 Sec ch. 34, Civil Liberties, under heading 34.2 "Common law", below.
83 Sec D.W. Mundell, "Legal Nature of Federal and Provincial Executive Governments" (1960)
2 Osgoode Hall L.J. 56; Cheffins and Tucker, The Constitutional Process in Canada (2nd ed.,
1976), ch. 4; C.R. Munro, Studies in Constitutional Law (Butterworths, London, 2nd ed., 1999),
ch. 8; Evatt, The Royal Prerogative (1987); E.G. MacDonald, A Contemporary Analysis of the
Prerogative (LL.M. thesis, Osgoode Hall Law School, York University, 1988): de Smith and
Brazier, Constitutional and Administrative Law (8th ed., 1998), ch. 6: Sunkin and Payne (eds.).
The Nature of the Crown (1999); Hogg, Monahan and Wright, Liability of the Cro\1'11 (4th ed.•
2011), sec. l .5(b).
84 Dicey, Law of tlie Constitution (10th ed., 1965), 424; but see note 98, below.
85 Case of Proclamations (1611 ) 12 Co. Rep. 74, 77 E.R. 1352 (K.B.). holding that "the King
hath no prerogative, but that which the law of the land allows him".

1- 18
 -------------- ---- PR~ROGATIVE 1.9

The term prerogative should ~ . c,~nfi.1~•~ r r_, :1. 't. ..r. •Jr !,rmJeg-'!s that are
. ue to the Crown. Powers or pn 1leg, _; ? -~ :· •. f,...;1 i!lt ; , 11~!1 '.';~vate persons
uniq ot strictly speaking, part of the pr r ' ~-11.;v ... · 'J! n ~·, :::-'..:·. ti.e Crown b.as the
n ,
arewer .
to acquire an d d'1spose of prope .~;t. . !.11,1
. ..,fJ
. -~r.tr: m:,:., ~-vn~r-a s. but hese
po ot prerogative powers, because they :.i.i'! v·,-;". '$.e·:! tiy "W:. ~ 1 )Oe. Sometimes,
are n . . dI l . . :t
he term prerogative 1s use oose y, ll7 a ,.Jh t:r :.en•-.;-. ~~- tn<'.ompassing all the
1
ers of the Crown that flow frorr. tllc ,::0.n!!HOn ~?.W."t Although this usage is
87
h~:rically inaccurate, it has become incrt.;;_;r ._.iy ..;umi, on. othing practical
IS
now turns on the d'1stmc
• t10n
' r,
bet ween th e Lro,;:;; •s " trre prerogative" powers and
the Crown's natural-person87a powers, because tht exe cise of both kinds of powers
is reviewable by the courts.
In the next chapter, we shall see that the Crcwn possessed certain prerogative
legislative powers over British colonies. The King, acting without the concurrence
of Parliament, had the power to create the office of Governor, executive council,
legislative assembly and courts for a colony. In the case of a conquered colony (as
opposed to a settled colony), the King possessed a general power of legislation but
only until such time as the colony was granted its own legislative assembly. 88
These powers are of mainly historical interest for Canada today; but the
constitutions of Nova Scotia, New Brunswick and Prince Edward Island still
consist of prerogative instruments, 89 and the office of Governor General still
· · 90
depends upon a prerogative mstrument.
Apart from the power over the colonies, the courts held that there was no
prerogative power to legislate: only the Parliament could make new laws. 91 The
Bill of Rights of 1688 denied the prerogative powers to "suspend" a law for a
period of time, or to "dispense" with a law in a particular case. 92 The Bill of
Rights of 1688 also affirmed that only Parliament could levy taxes.93 And the
courts established that only Parliament could authorize the expenditure of public
funds. 94 The courts also held that there was no prerogative power to administer

86 Dicey, note 84, above, 455, said that "every act which the executive government can lawfully do
without the authority of an Act of Parliament is done by virtue of the prerogative". For criticism of
this usage, see Mundell, note 83, above, 58-59; Munro, note 83, above, 159-160.
87 W. Blackstone, Commentaries (l 765), vol. l, 239, says that: "It assumes in its etymology (from
praeand rogo) something that is required or demanded before, or in preference to all others•·.
87a Notes 101 -108 and accompanying text, below.
88 See ch. 2, Reception, below.
89 Id., under heading 2.2(c), "Amendment of received laws," below.
90 Letters Patent constituting the office of Governor General of Canada, 1947, R.S.C. 1985,
Appendix II, No. 31.
91
Caseof~r~clamations (1611) 12 Co. Rep. 74, 77 E.R. 1352 (K.B.)(King by proclamation could
not pr?h1b1t new buildings in London).
92
de Smith, note 83, above 73-74· and see ch. 34 Civil Liberties under heading 34.2. "Common
law", below. ' ' ' '
93
~ow/es v. Bank of England (1913] l Ch. 57 (resolution of parliamentary committee, approved by
94 ouse of Commons, cannot levy a tax).
: 1-~~klaod f!ar~our Bd. v. The King (1924] A.C. 318 (P.C., N.Z.) (money spent by g~vemment
A out l_e~slative appropriation is recoverable by government); E. Campbell, "Parliamentary
ppropnations" (1971) 4 Adelaide L.R. 145.

1-19 (Constitutional Law) (2013 - Rel. I)

 1.9 SOURCES

. . . the courts could adjudicate disputes ao:::or... ing to la 95

1ust1ce. on 1Y . w. ~
.. ontined the prerogative to executive govemmer.~.!,1 powers A
dec1s10ns c . . d . · nct w·
. the prerogative was further hm1ted by the oclr ne that most !thin
th1s area h b" t . . exec .
. hich infringed the liberty of t e su ~ec requ1ree the autho . Uhvc
action 96w M reover the prerogative . cou Id be a bo 1·1s hed e:r ·1
..m1.ted by rtty of a
statute. o , . Slatut ~
. statute had occupied the ground formerl y occup!:-d by the pr e,
an d . once a 97 , erogar
the Crown had to c~mply with the terms of the statute :~ of these rules, ~ve,
especially the last (displacement by statute), have had the --Leet of shrinkin nct
·ve powers9s of the Crown down to a very narrow ~ompass. The g the
preroga tl . . . . 98a , . condu
''oreign affairs mcludmg the making of treattes aud t he declanng f ct
o f ,, ' . . d S h . o War
continues to be a prerogative power m Cana a. o are t e a ppomtment f '
th
Prime Minister (by the Governor General) and other ministers (by the Gov° e
. M' • ) 98b h • ernor
General on the advice of the Pnme mister , t e issue of passports, the

95 Prohibition de/ Roy (1607) 12 Co. Rep. 63, 77 E.R. 1342 ("The King in his own person ca
·
adjudge any case, either · · I ... or betw1x
cnnuna · t par t Yan d part Y") . . nnot
96 Entick v. Carrington (1765) 19 St. Tr. 1030, 95 E.R. 807 (K.B.), (no prer?ga_tive power of search
and seizure). An exception was that p:operty coul? be_taken or destroyed 1~ time of war, although
the prerogative power was accompamed by an obligation to pay compensation: Burmah Oil Co
Lord Advocate [1965] A.C. 75 (H.L.) (Crown ordered to pay compensation for oil installation/
Burma destroyed during second world war). Ill
96a Any bill diminishing the Crown's prerogative should receive "royal consent" signified by lhe
Govem~r General at some stage i~ th:,bill's conside.~atio~ in either one ~fthe two Houses. Royal
consent 1s not to be confused with royal assent , which of course 1s the final stage in the
enactment of every bill. Royal consent is helpfully explained by the Speaker of the Senate in
"Speaker's Ruling: Bill C-232 and the Royal Consent", Senate of Canada, March 21 , 2011
(holding that royal consent was not needed for a statute that did not affect any Crown
prerogative). This requirement is one of internal parliamentary procedure only. In a case where
royal consent was required, and was not obtained, if the bill went through all stages of enactment,
including royal assent, the statute would be validly enacted. On the conferral of royal assent, wthc
question of royal consent becomes moot": Id., 4.
97 A.G. v. De Keyser's Royal Hotel [1920] A.C. 508 (H.L.) (Crown ordered to satisfy statutory
requirement of compensation for building occupied in time of war). Compare Barton v. Cth. of
Aust. ( 1974) 131 C.L.R. 477 (extradition under prerogative upheld; not displaced by statute); R. v.
Home Secretary; Ex parte Northumbria Police Authority [1989) Q.B. 26 (C.A.) (prerogative
power to supply riot equipment to police not displaced by statute); Ross River Dena Council Band
v. Can. [2002] 2 S.C.R. 816, para. 58 (prerogative power to create Indian reserves "limited" but not
"ousted" by statute); Can. v. Khadr [20 l OJ I S.C.R. 44, para. 35 (prerogative power over foreign
affairs not displaced by statute).
98 ~swell as prerogative powers, there are a number of prerogative privileges or immunities. which
give to the Crown immunities from some kinds of legal proceedings, priority in the payme?~of
debts, etc. _This miscellaneous class of prerogatives, which is ignored in Dicey's defiruuo~
accompanymg note 84, above, has also been reduced by statute, but some of it lingers on. The par
concerned with the liability of the Crown to legal proceedings is discussed in ch. IO. The crown.
below.
9sa Turp_ v. Ca~. (2012) 415 F.T.R. 192 (F.C.) (prerogative power to withdraw from Kyoto Accorrl.
desp1t~ parliamentary implementation of treaty). tive
98 b Guergis v. _No~ak(~~l2) 112 O.R. (3d) 118 (S.C.J.), paras. 10-15 (Prime Minister has prerog~ful
power to di_smiss mi~ister at pleasure without judicial review) . The plaintiff was also unsu~ that
m challengmg her dismissal from the government caucus· the Court held that the P.M. ~ . Jd
power too, allhough its source was parliamentary privilege not Crown prerog~uve. ·o~:
~a0rla3s).l6-22. On appeal under the same name, these rulings we~e affirmed without d1scuss1
( 116 O.R. (3d) 280 (C.A.).

1-20
 ~ - - -- - - -- - -- __
P_R
_E_· R
_.O
.:....;GA
_ T! V_E _ _ _!_!

. erves,99 and the conferring of honou: ~ % :n a Que 11 ,~

d1an res I . C d l•Jo .
. of I11 t governmenta power m ana a ;5 ,·>.r::rci!: <l ur der
auonqqn aut mo
,reun;iw,rl. t prerogative power. · f ·
( ~ 1')', no be a serted that th~ ex~rc1se _
o prerogative po ,'\ ,:; -.•~
,a~. ,"tot su· jcct
1010
1a 1111 ed to . w.101 The assertion 1s bel~ed by th maJ~ y •.~·~3e~ ir1 which t nl'.!
udicial rev1e orted exercise of prerogative power_~~ lt:1~ ikc : , i ~Vi.!We<.~ ~~' the=.
1° l ise or pufP ill determine whether a prerogat1vt ~i,:w ·r :'m:. :i-1 ..~ •.~ertcd hv
t,erc h courts w . 102 d 'f . d . h "•, ;... . • .
urt . i e in fact exist, an '1 it oes exi~t, w ..3 '' ;-_;· - ~ Lm .:. ttnd wt~thcr
the . . ns on the power have been complied with.' ·1 ·r,:i: cou~
cO crowndoes
..", will. al~.) o
an)' ~ 1ncuohether a prerogative power has been •ti1,pla~?G ~y !!l'.l : u~c. 10t. The
t
detert111n~ also require, not o~ly t?~t prerogatl',t p~wt~·s be exercised in
ceurt ,~I with the Charter of Rights and other C(>,:s:-~utiona1 norms, 106 but
confoflll1 Y . •strative-law norms such as the du y 01 tmm,~•s be observed 101
at admtm . h h . ~· ./ .
alSo th ·u also determine w et er a prerogative power has been properly
courts w1
'fhe d 10s
delegate · the development of responsible government, the prerogative powers of
Before h . . h.
Crown were exercised by t e rde1gnmg m~narc m accordance with his or her
the . t'on Such powers coul not survive the growth of democratic ideals
o\\'11 discre 1 • ,

- - - ; Dena Council Band v. Can. [2002) 2 S.C.R. 816.

~ Ross te~bretien (2001) 54 O.R. (3d) 215 (C.A.).
99a B/ac dv.being a federal state, the prerogative powers had to be distributed between the federal
100 Cana ~ent (the Crown in right of Canada) and the provincial governments (the Crown in right
gre~ province). The Constitution Act, 1867 was silent on the point. The courts held that the
0
cacgative powers followed the comparable legislative powers: see ch. 9, Responsible
pGreromment
0
under heading 9.3, "Law and Convention", below.
;~th no~e 83, above, 136-137, rejecting the assertion.
IOI d e leading
The ' cases are cite· dm . notes 91 -96, above.
01
:oi Bunnab Oil Co. v. Lord Advocate [l 9_65)_~ .C. 7~ (H.L.) (~rerogat!ve power ~ccompanied by a
dutyto pay compensation). Compare Jud1c1al rev!ew of cla,~ms to w1th_h?ld e~1dence by virtue of
Crown privilege: ch. 10, The Crown, under heading 10.4, Crown pnv1lege , below.
104 Note 97, above.
105 Operation Dismantle v. The Queen [1985) l S.C.R. 441 (weapon testing under prerogative
upheld,but prerogative power in principle subject to Charter); Can. v. Kamel[2009) 4 F.C.R. 449
(F.C.A.)(refusal of passport upheld under s. I of Charter); Abdelrazik v. Can. [2010) l F.C.R.
267 (F.C) (refusal of passport struck down for breach of Charter); Can. v. Khadr[20 l OJ I S.C.R.
44(declaration ofbreach of Charter issued even though remedial action might involve exercise of
prerogative power over foreign affairs).
106 Air Can. v. B.C. [1986) 2 S.C.R. 539 (mandamus issued to overrule denial of royal fiat for
proceedings against Crown to recover unconstitutional taxes).
!07 R. v.Criminal Injuries Comp. Bd.; Ex parte Lain [l 967] 2 Q.B. 864 (certiorari issued for error of
law on face of record by board established under prerogative); Council ofCivil Service Unions v.
Minr. for Civil Service [1985) I A.C. 374 (H.L.) (remedy denied, but prerogative control of civil
service held in principle to be subject to duty of fairness); R. v. Foreign Secretary: Ex parte
Everer_r[J989)Q.B. 81 l (C.A.) (remedy denied, but refusal of passport under prerogative held to
besu~Jecttoduty of fairness); R. v. Secretary ofState; Ex parte Bentley[l 994) Q.B. 349 (Div. Ct.)
(IIllntSlerial refusal to exercise prerogative of mercy struck down on ground that all alternatives
had not bee~considered); Black v. Chretien (2001) 54 O.R. (3d) 215 (C.A.) (remedy for denial of
108 ~onour_demed, but prerogative powers affecting individual rights held to be reviewa_ble). .
w~:d~'ver Dena.~ounc~I Band v. Can. [2002) 2 S.C. R. 816, ~aras. 63-64 (Governonn Cou_nc1l
normally exercise prerogative power to create Indian reserves. but duly authorized
agent of the Crown could also do so; no agent had authority to do so in this case).

l-21 (Constitutional Law) (2013 - Rel. I)

~J.9~~S~O~
UR~C~E~S- - - - -- - -- -- ----~

ot (and still is not) an elected L1ffK .::1 i. In most cou .

for the monarc h was n .. ~ _ .• ntnes
ratic ideals led to the abohtton o. 1 . •. 1.onarchy: all , the
acceptance of demo C I - . execu .
. . wers were then conferred on e c1 ·.·J cf.1cials. In th tive
and leg1s1at1ve po . . . _ . ,. e lJ .
K' d m the acceptance of democratic ideals led i •. ...- ..ystem of resp ~ted
mg o e'nt under which the King (or Queen) com:m.(;.! a head of statons1b1e
governrn , . d h
. d ny of bi's powers but he exercise t o e pf·,•:, er., only on the .. d, Od
ea
retame ma ' . a Vi ,,
• t the direction of) his ministers. The mui!st~r were the leade CC
0 f (meanmg a . rs of the
party commanding a majority in the ele~ted Ho~se of L:.,c1mons. In this way t
requirements of democracy were satisfied Wtthout gn mg up the forn.' •1J1S Of
he
monarchical government.
Responsible govern~ent ~ad not ~en e~tended ~o the c~lonies by 1776
Indeed it was not estabhshed m the Umted Kingdom itself until the ninet ·
' d l d h . . d eenlh
century. For the 13 American colonies that ec are t etr.m ependence . in 1776
the democratic answer to rule by an absentee Ki ng an d his appomted govern '
was independence under a republican_ fo~ of govern~ent. F~r the loyal Brit~:t
North American colonies that remained m the Empire until after respons'b! 1
government was established in the United Kmg · dom, the solut1on
· turned out to bee
the gradual extension of responsible government to each colony. At first just th
colonial governor, but later the King or Queen as well, was to act on the advice 0;
the ministers who enjoyed the confidence of the local representative assembly. A
first various matters of imperial concern (for example, treaty-making) wer:
excluded from responsible government and reserved for British decision, but
eventually local responsible government extended to everything. The story of th
extension of responsible government to British North America, and the workin e
out of the full implications of that idea, is the story of Canada's achievement 0~
independence.109
An extraordinary feature of the system of responsible government is that its
rules are not legal rules in the sense of being enforceable in the courts. The
.
conventions only. The exercise· of the Crown's prerogative powers is yare th
11 °
reg~lated by_ conventions, not laws. Conventions are the topic of the ne:
section of this chapter.

l09 The history of responsible governm t • •

110 The Queen in the United K' d en is re1ated 10 ch. 9, Responsible Government. below.
retain a few "personal mg 0 .01 • a nd her representatives elsewhere in the Commonwealth.
. . prerogatives" namely p hi h · al
d1scretJon of the Queen ( G ' · owers w c are exercised at the person
needed for the situation w~:re t~ver~or Ge~e:al or Lieutenant Governor). These powers are
assembly. They are discu d . eret no mim5try_1hat commands tht: confidence of the dc."Cted
Governor General's perso~sale 10 c · · ?• Re ponsible Government. under heading 9. 7. ··The
prerogatives", below.

1-22
 n ,Nv !~.r -11r-.n: 1. inu,;
- - - - - - - -- - - -·-·--- --·-- -- --••·•-··
~
conventions
1.10
finition of conventions
(a) De
ventions are rules of the constitution th~~ a:t i,<./ ~.-.:fr,r-?:: : y .be '. aw
C~~1 B cause they are not enforced by the law c:..,irt-,_tl1..:.j• -~~r... oet-t rega rded
courts. ~ rules, but because they do in fayt ref ·.::.1.k l: t~ -•,·ork:(,g f the
n on-lega
as . . they are an important· concern of 1l,r c,·,r.stt·Jt1n1
· · a:· .l · vyer What
consutution,
. do is to prescn'be the way m . which 1.e;;.l l r"J•,1us snall. be exer ised..
venuons .
con ventions have the effect of transfernng effo:;~r:, e power from the legal
Sorne con nother officia . I or institution.
. . . 0 ther conventioni lmut . . an apparently
holder to a .
al power or even prescnbe that a legal power shall not be exercised at
broad Ieg '
all. C nsider the following examples. (1) The Constitution Act, 1867, and many
o . h
dian statutes, confer extensive powers on t e Governor General or on the
Cana . C .1 b . .
mor General m ounci , ut a convention
.
stipulates that the Governor
Gove
eral will exercise those powers on1y m accordance with the advice of the
Gen
cabinet or in some cases the p nme . M mister.
' - 11 2 (l) .
The Constitution Act, I867
kes the Queen, or the Governor General, an essential party to all federal
:slation (s. 17), and it expressly confers upon the Queen and the Governor
General the power to withhold the royal assent from a bill that has been enacted
by the two Houses of Parliament (s. 55), but a convention stipulates that the royal
113
assent shall never be withheld.
Each of these two conventions is discussed later in this book, and many other
examples will be encountered as well. The two that have been described are two of
the most fundamental rules of the Canadian Constitution. Yet, like all
conventions, they are not enforceable in the courts. If the Governor General
exercised one of his powers without (or in violation of) ministerial advice, the
courts would not deny validity to his act. If the Governor General withheld his
assent to a bill enacted by both Houses of Parliament, the courts would deny the
force of law to the bill, and they would not issue an injunction or other legal
remedy to force the Governor General to give his assent. None of these things has
ever happened, because conventions are in fact nearly always obeyed by the
officials whose conduct they regulate.

111 The best-known of the abundant writings on conventions are Dicey, The Law ofthe Constitution
(IOth ed., 1965), chs. 14, JS; Jennings, The Law and the Constitution (5th ed., 1959). ch. 3;
(Whea~e, Mo~ern Constitutions (2nd ed., I966), ch. 8; Marshall, Constitutional Conventions
1986), de S~th and Brazier, Constitutional and Administrative Law (6th ed .. 1989). 28-47. A
r~~-Canad,an study is Heard, Canadian Constitutional Conventions ( 1991 ). Conventions are
~so iscussed in Tremblay, Droit Constitutionnel - Principes (2nd ed., 2000). 19-30; W.J.
Me~~•. ·•or Dissolution, Prorogation, and Constitutional Law, Principle and Convention:
La:n;~;rung Fundamental Distinctions during a Parliamentary Crisis" (2009) 27 Nat. J. Con.
112 Seech 9. R .
113 See c · ' espons~ble Government, below.
9
h. • Responsible Government, under heading 9.5, "The legislative branch". below.

1-22.1 (Constitutional Law) (2013 - Rel. l)

 , •~~- ~O~U~
R~C~ES~----- - ····-·- · - - - -- - - . _ _ _
I.:.!,O(b) ----

. n is disobeyed by :~a u lkia!, then it is common esp .

If a conven t10 , . . , ec1a1Iy 1•
. K' don1 to describe t11•~ 0Jf1u ,II c; act or om1ss1on as "un . n
h United mg ' , consttt
t e h. use of the term uncon:)t 1t:.. t1 or::i.! must be carefully distin . u.
· nal''. But t 1s . , , . gu1shed
uo . here a legal rule 01 the coi!:;oi'.l!t!OO has been disobeyed. Wh
from the. case w springs from a bread,
. ality . -.1 "i ,a·N, th e purported act is norm ere
unconstttuuon . 1 ,he .. ,. 114 " a11ya
. d there is a remedy availab.e l . , . ..,ou. ts. But where uncon t·
nulhty an . . s itu.
. . ,, rings merely from a breach ,:)t ")n•:en t1011, no breach of the law h
uona 11ty sp . b .. 1 • 11 s as
d no legal remedy w1 11 e ava:t:• ll!e
occurred an
(b) Conventi~ns in the courts

Although a convention will not be en:orced by the courts, the existence of a

convention has occasionally been recog~1zed by the co_urts. For example, the
have taken notice of the conventions of responsible government, which
cour ts . ·d · · d ••
k a Minister accountable to Parliament, as a cons1 eratton m ec1dmg to give
ma e . t ·
a broad rather than a narrow interpretation to a statute con ernng power on a

(Continued on page J-23)

114 In so_me cases of breach of a constitutional law, there is no remedy, for example, because the legal
rule 1s held to be non-justiciable, or because the legal rule is held to be directory only and not
~anda!o~, or becau~ n? !ndividual is sufficiently affected by the breach of the legal ruJe to have
standmg to seek aJud1c1al remedy, or because there is no appropriate remedy. But these are
unusual cases.
115 In Re Resolution to Amend the Constitution [1981] l S C R 753 909 the Court distinguished
betw 1h . . . ' ' · 'd
een . ese two senses of the word unconstitutional and held that breach of a conven11on di
notcause
~ mvaI'd' ' where courts have explicitly refused to
· rise to any remedy. Other cases
1 tty or give
;~o~ce ~_conv~ntion are Re Disallowance and Reservation of Provincial Legislation [19381
. · · 7 • Cumev. MacDonald(l949)29 Nfld. & P.E.l.R. 294(Nfld. C.A.); Madzimbamuro v.
Lardner-Burke [1969) 1 A.C. 645 (P C S Rh d . )
.., o. o es1a .

1-22.2
 CONVF iT!' lt·~ l.lO(bJ
------------- -·--- - - ----
-----
1'nister.
-

116 In Lhese cases, and in other cases in wh! .l1 the""< !,,.w-.! ')f a conv r.

~1 ha been recogmzed,
· 117 the existence
· of thc ·onv~::t.~:-,n ',\, ,-4~ re 1 _"·-~r:. :J the
~~~ iti?nof a legal issue, usually the interpretation of .:ir!· ~· .1 ~.:1.ti.~~ vt u wn Len
titultOn, . . n
con In the Pamatwn Reference (1981 ), 11 8 the :,l~p·crr.,;: ~-. i:L 01 Can.~da was
ked on a reference whether there was a convention r~qc1nng jicit the ..:onsent
~ the provinces be obtained before the federal gov ' rnme!:'. !'e uc'.)te · i.l;e United
~ gdomParliament to enact an amendment to the r on~~itut~on of Canada that
nId affect the powers of the provinces. The Court wa~all',_asked whether there
wou . f . .I
a legal requirement o provmcia consent. The que t10ns had been referred
w~he courts by three of the eight provinces that were opposed to Prime Minister
~ deau's proposals for a constitutional settlement to patriate the constitution and
o~ain an amending procedu~e and a charter of rights. 119 The Supreme Court of
Canada obviously had to decide the legal question, and it did so by holding that
there was no legal requirement of provincial consent to the constitutional pro-
posals. But the Court went on to decide the c?nvention question as well. A majority
of the Court held that there was a convention, and that the convention required
the federal government to obtain a "substantial degree" or "substantial measure"
of provincial consent 120 before requesting the requisite legislation from the United
Kingdom. 121
The decision in the Patriation Reference did not, strictly speaking, enforce
aconvention. Indeed, as related above, the Court specifically held that there was
no legal obligation upon the federal government to obtain the consent of the
provinces. Nonetheless, as a matter of practical politics, the decision made it
impossible for the federal government to proceed with its constitutional proposals
without a "substantial degree" of provincial consent. After the decision, Prime
Minister Trudeau and the Premiers met again to try and reach the agreement
which had hitherto eluded them, and on November 5, 1981 they did in fact reach
agreement on the constitutional settlement which became the Canada Act 1982
and the Constitution Act, 1982.

116 E.g., Liversidge v. Anderson (1942] A.C. 206 (H.L.); Carltona v. Comm rs. of Works I 1943 J 2
All E.R. 560 (C.A.); compare A.-G. Que. v. Blaikie (No. 2) [ 1981] I S.C.R. 312, 320 (Acts
include regulations in view of conventions linking government with Legislature).
117 Other cases are cited in Re Resolution to Amend the Constitution [ 1981 I I S.C.R. 753, 775-
784, 885. Add to these OPSEU v. Ont. [ 1987] 2 S.C.R. 2, 44-45 (convention of political
neutrality of Crown servants recognized).
118 Re Resolution to Amend the Constitution [ 1981] I S.C.R. 753.
l 19 The history of this constitutional settlement is related in ch. 4, Amendment, below•
120 (1981) I S.C.R. 753, 905.
121 Four opinions were written, none attributed to an individual judge. On the legal question, ~here
was a majority opinion, signed by Laskin C.J., Dickson, Beetz, E tey, McIntyre, Choum~
and Lamer JJ., and a dissenting opinion, signed by Martland and Ritchie JJ. On the conve~uon
question, there was a majority opinion, signed by Martland, Ritchie, Dickson, Beetz. Choumard
and Lamer JJ., and a dissenting opinion signed by La kin C.J., Estey and McIntyre JJ.

1-23 (Constitutional Law) (2006- Rel. I)

 I.IO(b) SOURCES

The Supreme Court of Can· J in ; , ,.. _.,, r ·(Jn Refer,

convention. require
. d a ..su bSuu1l1
'"" t-e.
as far-reaching as those proposed b~ Pr .. ·: · ·· •-r Trudeau.
of November 5, 1981, doubt rem c. ~ •• \ : ;. rthis rul h rthea&ree~
:to
, . i~·i)\ m ial-J•conence had said Ui41
ellnCO(f~

The agreement included nine of l c tir. p .. ,.,.! 5• but did e a_d been satisf.,.,.
. I F h . not Include n. .. ."\I.
the only predommanl y renc - pee. '·-t . . ..1~ and one th -<uebet
included over 25 per cent of Can'" ·a => ,., • _ : " : n. \Vas the c at (at that tillle)
necessary as part of a .. ubstantial degr~ · •• - :o n..:iaJ consem~nsent of Qu~
this question to its Court of AppeaJ fL-r .. ;s· ~ By the time the·~~~ refel'Ted
the Supreme Court of Canada, the C na ~..: A t l ':J 2 had actuJ lion f'eacl)ed
by the United IGngdom Parliament Nm o, .. } was the questio y beenl enilele(j
. b h . . . n so ely ~...___
conventton, ut t e issue was moot ev n IT. a po!it1caJ sense O th '"UUUl a
· ne eless 10 ·
Quebec Veto Reference (1982), 121 the Supr m Court of Canada , the
.
question, dec.d. h Quebec ' s consent '-' as not necessary to answered
1 mg t at ak,
,1..
<{it

requisite ''substantiaJ degree" of prm inciaJ onsent. By this decisi: ~ up lhe

destroyed the spectre of an "unconstitutional constitution '!'23 °
e Coun
The convention questions in the Patria1ion Reference and Quebe
Reference raised no legaJ issues, and the answers could not lead to an;:~
consequences. Was the Supreme Court of Canada wrong toanswerthequesti g
The Court pointed out that courts had in previous cases recognized the exis:ns?
of conventions,114 but, as mentioned earlier. in the previous cases the existenee
of the convention had been relevant to the disposition of a legal issue. That :
not true in the Patriation Reference, where the answer to the convention question
had no bearing on the answer to the legal question; nor was it true in the Quebec
Veto Reference, where no legaJ question was asked. The Court also pointed out
that the convention questions had been referred to the Court for answers 125 but
the Court bas in the past often asserted (and exercised) a discretion not to answer
questions referred to it that are unsuitable for judicial determination.•~ The issue
really comes down to the question whether the convention questions were suitable
for judicial determination. The only possible effect of answering the convention
question in the Patriation Reference was to influence the outcome of the political

122 Re Objection by Que. to Reso/urion ro A~nd rhe ConstilUlion [ 19821 2 S.C.R. 79~- . A L
123 Of course, if the decision had been otherwise, the Canada Act 1982 and the Consnronon.
· · · al nly in the conwn0 0031
1982 would still have been valid; they would have been uncon lltullon °
sense; see note 115, above.
124 [1981) 1 S.C.R. 753,885.
125 [1981 I 1 S.C.R. 753, 884. . .bed · h. s, Su~
126 The discretion not to answer questions posed on a reference I descn i.n c
Court of Canada, under heading 8.6, .. Reference jurisdiction", below.

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