Erasing Constitutional White Spots

A critique of Vanessa MacDonnell’s theory of quasi-constitutional legislation

One of my first posts on this blog dealt with the topic of quasi-constitutional rights and quasi-constitutional laws, in which such rights are mostly, although not exclusively, found. I have not really returned to that subject since, except in commenting on one case in which the interpretation of one quasi-constitutional law, the federal Official Languages Act. In the latter post, I suggested that the majority opinion in that case, Thibodeau v Air Canada, 2014 SCC 67, [2014] 3 SCR 340, meant that “a statute’s ‘quasi-constitutional’ standing is in reality, quasi-meaningless”. Still, the label is there as part our law, and it seems intriguing. Vanessa MacDonnell has taken a more focused interest in it than I, or anyone else for that matter, and recently published an article called “A Theory of Quasi-Constitutional Legislation“. Although I’m not fully persuaded by the theory prof. MacDonnell proposes, it she makes a number of points that deserve our attention.

The central tenet of Prof. MacDonnell’s theory is that quasi-constitutional legislation is legislation that implements “constitutional imperatives”. These imperatives are often, but not necessarily, found in the rights-protecting provisions of entrenched constitutional texts, but the overlap between constitutional and quasi-constitutional law is far from exact. That is because “[s]ome quasi-constitutional statutes implement rights that are not generally thought to impose affirmative obligations on the state”. (516) This is the case for privacy-protection and access-to-information legislation, and perhaps most significantly for human rights legislation. It is not clear that Parliament and provincial legislatures had to enact these laws, in the sense that courts would have invoked the Canadian Charter of Rights and Freedoms or some other constitutional rule or principle to force them to do it. But once such laws are enacted, they have a special status to which the “quasi-constitutional” label refers.

The implication of this is that a considerable number of statutes or provisions that have not yet been characterized as “quasi-constitutional” should be so characterized. The Canada Elections Act, for one, of which prof. MacDonnell says that “[w]hile the Court has not explicitly characterized the [it] as quasi-constitutional, it has interpreted it in the same generous manner as” if it were. (515) But one could also describe at least parts of the Criminal Code as implementing constitutional imperatives, notably the rights to life and to bodily integrity, protected by section 7 of the Charter and by a variety of the Code‘s provisions on murder, assault, etc. Other legislation, even delegated legislation, may well fit the bill too, though prof. MacDonnell does not provide examples. And a further implication of this expansion of the notion of quasi-constitutional legislation is that it will probably not be “of great use as an interpretive principle”. (520)

Instead, what the concept of “quasi-constitutional” laws should do is serve as a reminder that statutes, the legislatures that enact the statutes, and the cabinets that control the legislatures are not only constrained by constitutional limitations on what they are allowed to do, but also driven by constitutional requirements about what they ought to do. To be sure, it is not the case “that all or even most legislation is the product
of a process by which the executive assesses its constitutional obligations and takes steps to implement those obligations”. (521) It is the effect, rather than the intention, that counts.

There is more to prof. MacDonnell’s article ― in particular, a discussion of how her theory of quasi-constitutional laws compares with British views “constitutional” statutes (though these may well be substantially updated by the UK Supreme Court’s forthcoming decision in the Brexit litigation). But the above, I think, outlines the most important points she makes. As mentioned above, I don’t think that they are quite successful as a theory. If a theory is to be judged by the Dworkinian criteria of fit and justification ― does it describe our practice with reasonable accuracy? does it present our practice in its morally best light? ― I would argue that prof. MacDonnell’s comes short with respect to both.

It does not describe the Canadian courts’ practice well, because as prof. MacDonnell acknowledges, they have only recognized as “quasi-constitutional” a rather narrower range of legislation than is captured by her definition. In addition, to take up an issue I raised in my first blog post on this subject (which prof. MacDonnell kindly refers to, but not on this point), the Supreme Court has spoken of a “quasi-constitutional” right to the protection of one’s reputation, and a theory that only focuses on legislation seems to me to miss what is admittedly a small, but still a significant data point.

And as for presenting this practice in its best light, I am concerned about blessing a variety of legislative provisions by describing them as implementing “constitutional imperatives”. While I think that prof. MacDonnell is making an important point, as I will further explain shortly, it remains the case that many of these provisions are contestable. Some argue, and I am inclined to agree, that anti-discrimination legislation (“human rights” is a misnomer in this context) should not exist at all (though this is, admittedly, very much a minority view). Canadian access to information legislation, by contrast, is arguably too feeble, and perhaps come well short of giving effect to the imperatives of good governance and democracy. Meanwhile, many provisions of electoral legislation are tainted by the self-interest of those who enacted them (and indeed I wonder what it might mean to read them “generously”: generously to whom?). All that to say, while these laws are of constitutional significance, it might be a stretch to say they actually implement “imperatives”. Indeed, I do not suppose that prof. MacDonnell means that they are all fine in their present shape ― but I worry that her theory nudges us towards thinking of them in this way.

A further point of critique is that it is not very clear to me what “constitutional imperatives” are. For instance, is there a “constitutional imperative” to protect property rights ― which are, after all, recognized in the quasi-constitutional Canadian Bill Rights (as well as the Alberta Bill of Rights and Québec’s Charter of Human Rights and Freedoms), although not in the Charter? If so, then a much greater part of the criminal law then prof. MacDonnell lets on has quasi-constitutional value. So does the better part of tort law, which largely protects either the physical integrity of individuals or property rights. (Prof. MacDonnell does not say whether common law rules can be quasi-constitutional, but if both primary and delegated legislation can be, why not?) And, if we recognize as “constitutional imperatives” things that are plausibly related to, but not actually required by, existing constitutional rights, then shouldn’t we also recognize as quasi-constitutional various social programmes which the more adventurous progressive activists are already trying, fortunately unsuccessfully for now, to have read into section 7 of the Charter?

All that said, I do think that prof. MacDonnell is making a couple of important points. She is right to remind us that the relationship between the constitution, even the constitution in the narrow sense of entrenched supreme law, and legislation is more complicated than we often think. The entrenched constitution is indeed only in part a series of limitations; in part it is also a skeleton on which the other institutions of government must add flesh for the organism of the state to function.

Prof. MacDonnell is also right to encourage us to think of a number of ostensibly “ordinary” statutes as belonging to some province, if not perhaps the innermost one, of the constitutional realm. It is perhaps telling that many of the laws that are described as “quasi-constitutional” in Canada, or could be so described on prof. MacDonnell’s theory, are thought of as constitutional tout court in New Zealand, where there the constitution has no entrenched component, and constitutional law is understood as covering, more or less, the organization of the country’s government. (I wrote more about this here.)

Furthermore, prof. MacDonnell is right to point out that the nature and scope of quasi-constitutional rights can change more easily than that of those set out in the entrenched constitution. In her view, “[t]his is consistent with the living tree conception of Canadian constitutionalism”. (522) But if, as I am increasingly inclined to believe, “living constitutionalism” in the interpretation of entrenched constitutional texts is an unwarranted judicial power-grab, then the development of “quasi-constitutional” law is, alongside constitutional construction, the only form of legitimate living constitutionalism, and thus perhaps even more important than prof. MacDonnell lets on.

If not a very attractive theory of quasi-constitutional legislation, then, prof. MacDonnell gives us reasons to think and to re-think some of our old certainties. She offers an interesting account of some significant white spots on our mental maps, and if her own charts of these territories are not altogether exact, that detracts only a little from their value. Prof. MacDonnell’s voyage of discovery into quasi-constitutional law’s empire is a clear, if not a full, success.