Subsection 52(2) – The Constitution

Provision

52.(2) The Constitution of Canada includes:

  1. the Canada Act 1982, including this Act;
  2. the Acts and orders referred to in the schedule; and
  3. any amendment to any Act or order referred to in paragraph (a) or (b).

Similar provisions

Subsection 52(2) is related to subsection 52(1) which provides for the supremacy of the Constitution of Canada.

Purpose

Jurisprudence has not commented directly on a specific purpose of subsection 52(2). On its face, the provision adds a degree of precision and some certainty to the meaning and definition of the term, the “Constitution of Canada”, and thus to the ambit of the supremacy clause in subsection 52(1), by identifying instruments that make up the Constitution of Canada. Supreme Court of Canada jurisprudence indicates, however, that subsection 52(2) is not exhaustive in its identification of the elements of the Constitution (see, e.g., Reference re Senate Reform, [2014] 1 S.C.R. 704 at paragraph 24). This issue is further discussed below.

Analysis

While some early lower court jurisprudence treated subsection 52(2) as exhaustive in its description of the Constitution (Dixon v. British Columbia (Attorney General), (1986), 7 B.C.L.R. (2d) 174 (B.C.S.C); MacLean v. Attorney-General of Nova Scotia (1987), 35 D.L.R. (4th) 306 (N.S.S.C.T.D.)), the contrary interpretation was reached by the Supreme Court (New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, at page 378, per McLachlin J. for the majority). The non-exhaustive nature of subsection 52(2) has been reaffirmed in subsequent Supreme Court decisions (Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3 at paragraphs 90-92; Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at paragraph 32; Reference re Supreme Court Act, sections 5 and 6, [2014] 1 S.C.R. 433, at paragraphs 97-100; Senate Reform Reference, supra).

The question of the potential constitutional status of laws beyond those that are obviously part of the Constitution of Canada has two key implications from a Charter perspective. First, if other law has constitutional status, it cannot be invalidated under the Charter, as one part of the Constitution cannot be abrogated or diminished by another (Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; New Brunswick Broadcasting, supra, at page 373). In addition, legal principles beyond those reflected in written legal instruments, if recognized as constitutional, are a potential source of constitutional protections akin to, and supplementary to, those in the Charter. These issues are further addressed below.

1. The Charter and the constitutional status of other laws

Jurisprudence has addressed whether laws beyond those that are obviously part of the Constitution of Canada are nevertheless constitutional in status and thus cannot be invalidated by the Charter. In New Brunswick Broadcasting, supra, a majority of the Supreme Court found that the exercise of a Parliamentary privilege to ensure the proper functioning of provincial legislative assemblies, namely the privilege to exclude disruptive strangers, was part of the Constitution. Although this privilege was not expressly mentioned in any document referred to in subsection 52(2), it was considered to be an inherent power of the colonial legislative assemblies prior to Confederation and was continued by the preamble of the Constitution Act, 1867, which expresses an intention to put in place “a Constitution similar in Principle to that of the United Kingdom”. As a result, the Supreme Court rejected a challenge brought under paragraph 2(b) of the Charter to legislative assembly rules restricting the televising of assembly proceedings.

In a recent lower court decision, the rule identifying the sovereign of Canada as being the sovereign of the United Kingdom was considered to be a part of the Constitution of Canada. Legislation that gave the Parliament of Canada's assent to amendments in British law on succession to the throne was found by the court merely to be in furtherance of the above constitutional rule and, as such, the court considered that the legislation could not be invalidated under the Charter (Motard v. Canada (Procureur général), 2016 QCCS 588).

On the other hand, jurisprudence indicates that the definition of riding boundaries by a provincial legislature is not impervious to Charter scrutiny. Although a province is empowered to amend its internal constitution and to establish its electoral boundaries, the exercise of that power pursuant to statute is subject to the Charter (Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158).

The Supreme Court has rejected the argument that the rule of political neutrality of the public service (as found in the Public Service Employment Act) is immune from Charter review on the basis of embodying a constitutional convention that is central to the principle of responsible government. The Supreme Court held that, although conventions form part of the Constitution in the broader political sense, they are not enforceable by the courts unless they are incorporated into legislation. Furthermore, statutes which embody constitutional conventions do not automatically become entrenched to become part of constitutional law; rather, they retain their status as ordinary statutes (Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69).

In Dixon and in MacLean, both supra, it was held that provincial constitutions are not part of the Constitution of Canada. Note, however, that those early cases took an approach treating subsection 52(2) as exhaustive and it is unclear how the issue would be analyzed under current interpretations of that provision. The question of whether a provincial constitution is part of the Constitution of Canada was touched upon by Lamer C.J. in obiter in his concurring judgment in New Brunswick Broadcasting, but was left undecided. The issue is complicated by the fact that certain provisions of the Constitution of Canada are also part of the constitutions of the provinces, and some of those provisions (albeit a narrow range of them) are amendable by ordinary provincial legislative processes (see Eurig Estate (Re), [1998] 2 S.C.R. 565). As well, the provincial constitutions may embrace organic legislation concerned with principles or institutions of government, and that legislation is clearly not part of the Constitution of Canada (see Ontario (Attorney General) v. OPSEU, [1987] 2 S.C.R. 2).

2. Constitutional protections arising from unwritten constitutional principles

The Supreme Court has recognized that unwritten principles of the Constitution can in some cases be the source of substantive constitutional protections:

These principles may, in certain circumstances, give rise to substantive legal obligations, which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments. [Quebec Secession Reference, supra, paragraph 54]

Support for the existence of unwritten as well as written constitutional principles can be found in the non-exhaustive nature of subsection 52(2). Many of the principles can be explained by reference to the preamble to the Constitution Act, 1867, which, as noted previously, expresses an intention to put in place "a Constitution similar in Principle to that of the United Kingdom" (Provincial Court Judges Reference, supra, paragraphs 90-95).

Unwritten constitutional principles identified by the Supreme Court include federalism, democracy, constitutionalism and the rule of law, respect for minorities (Quebec Secession Reference, supra), the separation of powers and the independence of the judiciary (Provincial Court Judges Reference, supra) and the sovereignty of Parliament (Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3), among others (see, for example, the additional principles mentioned by Lamer C.J. for the majority in Provincial Court Judges Reference, at paragraphs 97-104).

A notable example of the capacity of unwritten principles to supplement Charter protections arises in respect of judicial independence. Sections 96 to 100 of the Constitution Act, 1867 protect the independence of judges of the superior courts, and paragraph 11(d) of the Charter protects the independence of a wide range of courts and tribunals when they exercise penal offence jurisdiction. In addition to these protections, the Supreme Court found that the unwritten principle of the independence of the judiciary extends to all courts in Canada, although in the circumstances of the case reliance on paragraph 11(d) of the Charter was sufficient to reach the conclusion that unilateral government action to reduce the remuneration of provincial court judges interfered with their independence and was unconstitutional (Provincial Court Judges Reference, supra). Subsequently, the Supreme Court relied directly on the unwritten principle of judicial independence, together with paragraph 11(d), to find that legislation replacing supernumerary provincial court judges with a panel of retired judges was unconstitutional (Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405). While continuing to recognize the applicability of the principle of judicial independence, the Supreme Court found that it was not limited by legislation that strengthened the required qualifications and independence of justices of the peace (Ell v. Alberta, [2003] 1 S.C.R. 857; see, however, Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39 for application of the unwritten principle to invalidate reforms to a provincial justice of the peace regime that affected remuneration). The Supreme Court has rejected the argument that the independence of administrative tribunals is protected by the constitutional principle of judicial independence (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781).

While not relying directly on subsection 52(2), nor on direct limits on government action from unwritten constitutional principles, the Supreme Court interpreted the rule of law principle as bolstering a right of access to justice under section 96 of the Constitution Act, 1867. A court hearing fee imposed by a province was found unconstitutional as being contrary to this right (Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), [2014] 3 S.C.R. 31; compare British Columbia v. Christie, discussed below).

Although unwritten constitutional principles can sometimes limit government action, whether directly or indirectly, the jurisprudence indicates a general reluctance by the courts to constitutionalize additional protections through unwritten principles. In a number of cases the Supreme Court has put emphasis on the primacy of the textual provisions of the written constitution (e.g., Quebec Secession Reference, supra, at paragraph 53, British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473 at paragraph 65; Caron v. Alberta, [2015] 3 S.C.R. 511 at paragraph 36).

The Supreme Court has suggested that the principle of the rule of law generally will not be a basis for invalidating legislative action. It rejected the use of the rule of law to provide for broader versions of certain rights — notably, for the prospectivity of legislation and for fair trial rights — than provided under the Charter. It observed as well that the rule of law must be considered in conjunction with other unwritten principles, democracy and constitutionalism, which very strongly favour upholding the validity of legislation that conforms to the express terms of the Constitution (Imperial Tobacco, supra, at paragraphs 57-67). Similarly, it has been found that the unwritten principles of the rule of law, the independence of the judiciary, and the separation of powers must be balanced against the principle of the sovereignty of Parliament (Babcock, supra, at paragraphs 54-57).

The Supreme Court has rejected the existence of a general constitutional right to legal assistance under the rule of law principle. While specific rights to counsel apply under paragraph 10(b) of the Charter, and can apply in other circumstances under section 7, a general right to legal assistance is not supported by text of the Constitution, the jurisprudence, and a historical understanding of the rule of law. On this basis a provincial legal services tax was held to be constitutional (British Columbia (Attorney General) v. Christie, [2007] 1 S.C.R. 873; compare, however, Trial Lawyers Association, supra).

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