A Theory of Quasi-Constitutional Legislation

Abstract

Since the 1970s, the Supreme Court of Canada has treated a small number of statutes as quasi-constitutional. Despite the longstanding presence of quasi-constitutional statutes in Canadian law, however, the Court has yet to articulate comprehensive criteria for recognizing a statute or regulation as quasi-constitutional. In this article, I argue that quasi-constitutional legislation - or more accurately, some provisions in quasi-constitutional legislation - should be understood as implementing constitutional imperatives. I use the term constitutional imperatives to refer to constitutional obligations of varying degrees of specificity that emanate from the rights-conferring aspects of the Constitution, as well as from those aspects of the Constitution that establish the institutions and procedures of government. Understanding quasi-constitutional legislation as implementing constitutional imperatives has several implications. First, it suggests that quasi-constitutional legislation is a much larger category than the existing case law implies. Second, it emphasizes the importance of politicians as constitutional actors. And third, it helps us understand that the Constitution influences non-constitutional law in ways that go beyond establishing the boundaries of permissible lawmaking. I conclude by showing that quasi-constitutional legislation in Canada is different in kind than the now much-discussed constitutional statute in the United Kingdom.

Keywords: quasi-constitutional legislation; Canadian constitutional law; UK constitutional law; constitutional statute