What are “quasi-constitutional rights”? Is this a meaningful, a useful concept? Justice Lebel’s comments in a decision released last week by the Supreme Court raise the question.
The decision, Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18 is one of three released last Wednesday, all dealing with questions of when Canadian courts can, and when they should, assume jurisdiction over a tort action with multi-jurisdictional elements. In this case, the action was in defamation. The appellants were the publishers of a book savaging Canadian mining companies for their activities (allegedly involving massive human rights violations) in Africa. The respondents were one of these companies. The book was published in Québec, but over 90 copies were sold in Ontario, some to public libraries, and the book was promoted there. The respondents are based in Ontario, and sued for defamation there. The publishers tried to have the proceedings stayed either for lack of jurisdiction or because the Ontario court was a forum non conveniens; they argued that the respondents were engaging in libel tourism, suing for defamation in jurisdiction more favourable to plaintiffs than that in which the suit should logically have been brought (in this case, Québec). Their motion was dismissed, and their appeals rejected both by the Ontario Court of Appeal and now by the Supreme Court.
In discussing the issue of the choice of law in defamation actions, Justice Lebel wrote (for the unanimous court)
that the harm occasioned by the publication of a defamatory statement is not the publication itself, but rather injury to the plaintiff’s reputation. While the constitutional right to the protection of freedom of expression must be upheld in the crafting of the law of defamation, this Court has recognized that one of the primary purposes of the law of defamation is to protect the reputation of the individual, which was elevated to quasi-constitutional status in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130. [par. 57]
As those of you who read my lament about the Charter’s unfortunate effects will recall, I am not a fan of Justice Cory’s reasoning in Hill, linking reputation to innate dignity and privacy, which I called “grasping at constitutional straws.” At least, Justice Cory did not actually speak of a “quasi-constitutional status” for the right to reputation. Justice Lebel now does. What does that mean?
There are quite a few quasi-constitutional rights in Canada. These are the rights recognized, protected, or created by “quasi-constitutional” legislation. That category itself is not well defined though. The Canadian Bill of Rights was the first to be described by the Supreme Court as a “quasi-constitutional” instrument, followed by Québec’s Charter of human rights and freedoms, other provincial human rights legislation, the federal Official Languages Act and similar provincial statutes, privacy legislation and access-to-information legislation. The Supreme Court deems these laws “fundamental,” or of “special importance” to the Canadian legal system. Some of them are indeed given primacy over ordinary legislation, either by “manner and form” clauses that make inconsistent provisions of other legislation inoperative to the extent of the inconsistency unless expressly declared to operate despite that inconsistency, or indeed unconditionally (which raises interesting constitutional questions), as the Official Languages Act is by its subs. 82(1). Other “quasi-constitutional” legislation is not so protected.
The recognition of the quasi-constitutional status of a statute is a factor – but one among many – in the statute’s interpretation, suggesting that the rights it confers are to be construed broadly, and any exceptions to them must be made clear. Beyond that, it seems to be little more than an indication that the Supreme Court finds the legislation in question important. It does no seem to mean that – absent a “manner and form” or similar protective clause – inconsistency with “quasi-constitutional” legislation can make another statute invalid or inoperative.
The only reference to a “quasi-constitutional” right independent of any statute comes from Justice McLachlin’s (as she then was) dissent in R. v. Keegstra, [1990] 3 S.C.R. 697, where she wrote that, on the evidence of “implied bill of rights” cases, “[f]reedom of speech and the press had acquired quasi-constitutional status well before the adoption of the Charter in 1982.” The suggestion is interesting, because at least some judges in the “implied bill of rights” cases believed expressed the view that they could strike down legislation infringing implied rights – or at least freedom of speech. But this was never the position of a majority of the Supreme Court, and even the judges who took it did so in obiter. Furthermore, I do not think that they would have accepted the description of the right they were recognizing as “quasi-constitutional.” For them, it was a constitutional right or principle of the truest sort.
In any event, Justice McLachlin’s opinion in Keegstra was a dissent. With Éditions Écosociété, we have the first recognition by the Supreme Court of a freestanding “quasi-constitutional” right, the protection of one’s reputation. What does it mean? Well, it seems to confirm that the Court considers reputation to be an important right, to be kept in mind when developing the common law. It suggests that Canadian courts are not about to do away with defamation as a cause of action, as American courts have all but done (in the name of free speech). But does calling the right to reputation “quasi-constitutional” add anything analytically distinct that characterizing it as long-standing and still important could not have done? Does it, for example, mean that courts are going to resist eventual attempts by legislatures to restrict defamation claims (as Australian legislatures have done)? The Court’s use of the “quasi-constitutional” label so far gives us no grounds for believing that this it does.
Double Aspect 
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