Quasi-constitutionality
Encyclopedia
In Canada, the term quasi-constitutional is used for laws which contain a provision causing them to override any subsequent laws which might contradict them. At the federal level, such laws include the Canadian Bill of Rights
and the Official Languages Act
. In Quebec, the Charter of the French Language
and the Quebec Charter of Human Rights and Freedoms
have been given quasi-constitutional status.
A quasi-constitutional law may be overridden by means of a provision, in any subsequent law, stating that this new law applies notwithstanding the previous quasi-constitutional law. However, in the absence of such a disclaimer in the new law, the quasi-constitutional law is considered to override any contradicting provision of the later-enacted law. This is in contrast to the normal rule, under which any new law is considered to automatically override any contradictory provision of any law that had been passed by the same parliament or legislature at an earlier date.
For example, section 2 of the Canadian Bill of Rights states:
Similarly, subsection 82(1) of the Official Languages Act states that "in the event of any inconsistency" between Parts I - V of that Act, and any part of any later Act of Parliament, the provisions of the Official Languages Act will prevail.
A quasi-constitutional law may be repealed or amended by means of an ordinary Act of the parliament or legislature, just like any other law. In this respect, therefore, such laws are not genuinely constitutional laws, which normally require some higher form of approval, such as the approval of multiple provincial legislatures, in order to be amended.
The first Canadian law to establish a claim to quasi-constitutional status was the Interpretation Act, which was adopted in November 1867 at the first session of the Parliament of Canada. Section 3 of this law stated:
, states, "It is hereby declared that this act shall operate notwithstanding the Canadian Bill of Rights."
However, such notwithstanding clauses are rare. The Public Order Temporary Measures Act is the only law that has ever overrridden the Canadian Bill of Rights by means of a such a clause--and moreover, the law contained further provisions ensuring that only some of the rights protected under the Bill of Rights would be suspended. As a further protection, the Public Order Temporary Measures Act contained a sunset clause causing these restrictions to expire within six months.
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
and the Official Languages Act
Official Languages Act
Official Language Act or Official Languages Act may refer to:* the Official Languages Act passed in Canada to enshrine official bilingualism* the Official Language Act passed in Quebec to ensure that French retained its primary status...
. In Quebec, the Charter of the French Language
Charter of the French Language
The Charter of the French Language , also known as Bill 101 and Loi 101, is a law in the province of Quebec in Canada defining French, the language of the majority of the population, as the only official language of Quebec, and framing fundamental language rights for everyone in the province...
and the Quebec Charter of Human Rights and Freedoms
Quebec Charter of Human Rights and Freedoms
The Charter of Human Rights and Freedoms is a statutory bill of rights and human rights code passed by the National Assembly of Quebec on June 27, 1975...
have been given quasi-constitutional status.
A quasi-constitutional law may be overridden by means of a provision, in any subsequent law, stating that this new law applies notwithstanding the previous quasi-constitutional law. However, in the absence of such a disclaimer in the new law, the quasi-constitutional law is considered to override any contradicting provision of the later-enacted law. This is in contrast to the normal rule, under which any new law is considered to automatically override any contradictory provision of any law that had been passed by the same parliament or legislature at an earlier date.
For example, section 2 of the Canadian Bill of Rights states:
Similarly, subsection 82(1) of the Official Languages Act states that "in the event of any inconsistency" between Parts I - V of that Act, and any part of any later Act of Parliament, the provisions of the Official Languages Act will prevail.
A quasi-constitutional law may be repealed or amended by means of an ordinary Act of the parliament or legislature, just like any other law. In this respect, therefore, such laws are not genuinely constitutional laws, which normally require some higher form of approval, such as the approval of multiple provincial legislatures, in order to be amended.
The first Canadian law to establish a claim to quasi-constitutional status was the Interpretation Act, which was adopted in November 1867 at the first session of the Parliament of Canada. Section 3 of this law stated:
Use of notwithstanding provisions to override quasi-constitutional laws
The guarantees contained in a quasi-constitutional law can be set aside by means of a later law that incorporates a clause clearly stating that it operates notwithstanding the provisions of the quasi-constitutional law. For example, section 12 of the Public Order Temporary Measures Act, which was enacted on November 2, 1970 at the height of the October CrisisOctober Crisis
The October Crisis was a series of events triggered by two kidnappings of government officials by members of the Front de libération du Québec during October 1970 in the province of Quebec, mainly in the Montreal metropolitan area.The circumstances ultimately culminated in the only peacetime use...
, states, "It is hereby declared that this act shall operate notwithstanding the Canadian Bill of Rights."
However, such notwithstanding clauses are rare. The Public Order Temporary Measures Act is the only law that has ever overrridden the Canadian Bill of Rights by means of a such a clause--and moreover, the law contained further provisions ensuring that only some of the rights protected under the Bill of Rights would be suspended. As a further protection, the Public Order Temporary Measures Act contained a sunset clause causing these restrictions to expire within six months.