Constitutional Conventions and Written Constitutions: The Rule of Law Implications in Canada

The paper explores the significance of the rule of law in the Canadian Constitution, particularly focusing on its complex relationship with constitutional conventions and the practical functioning of governance. It highlights the preamble of the Charter of Rights, emphasizing Canada’s foundation on the supremacy of God and the rule of law. Despite this, the text argues that political actors often ignore the law, citing the incomplete and outdated framework of the formal constitution as a contributing factor.

Furthermore, it discusses the role of the Supreme Court of Canada in emphasizing the rule of law in its decisions since the incorporation of the Charter, indicating its fundamental importance. However, it questions whether Canada genuinely upholds the rule of law when conventions allow politicians to bypass or even contradict legal mandates.

The text delves into the historical context of Canada’s constitutional framework, particularly its roots in British constitutional principles. It examines the powers vested in the Governor General and the Queen, highlighting the discrepancy between formal legal structures and practical governance.

Moreover, it discusses the role of conventions in Canadian constitutional law, acknowledging their importance in interpreting the constitution to reflect contemporary societal values. The text argues for a shift towards a substantive conception of the rule of law, incorporating unwritten constitutional principles to bridge the gap between formal legal structures and practical governance realities.

“The rule of law has come to occupy hallowed ground in the Canadian Constitution. After all, the preamble to the Charter of Rights is composed of one line: ‘Whereas Canada is founded upon the principles that recognize the supremacy of God and the rule of law.’ The rule of law is presumed to be a foundational principle of any democratic polity and, depending on how it is defined, perhaps even of many non-democratic regimes as well. While later discussion will reveal the complexity of competing conceptions of the rule of law, at a minimum it would seem to require that those who govern a society are bound by the law of the land and conversely that the law itself should reflect how government power is exercised. And yet, Canada shares an ironic situation with many other countries with written Constitutions: the rule of law is praised while political actors ignore the law. Constitutional conventions at times permit, and on occasion require, public officials to act in ways other than what is detailed in law. In Canada’s case, at least, this situation is both necessitated and exacerbated by the incomplete and archaic framework of the formal law of the constitution.”

“The Supreme Court of Canada has made some mention of the rule of law in 217 decisions in the 32 years since its incorporation in the Charter’s preamble. This contrasts with a mere eight decisions that referred to the rule of law in the 32 years prior to the Charter. The permeation of the concept through so many recent judicial reasons indicates a fundamental recognition of the principle’s importance. Given that prominence, it is worth asking whether Canada does in fact respect the rule of law when convention frees political actors – and sometimes requires them – to ignore the law in a number of settings.”

“When the Dominion of Canada was created in 1867, much of the legislative framework created in the British North America Act 1867 was incomplete and based on unwritten constitutional understandings about responsible government then prevalent in Britain. The opening preamble to the Act began:

‘WHEREAS the Provinces of Canada, Nova Scotia and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom…’ As we shall see later in this paper, the Supreme Court of Canada has come to place much reliance on this nebulous reference to ‘a Constitution similar in Principle to that of the United Kingdom’.”

[“A Constitution similar in principle to that of the UK” strikes me as a kind of oppositional parallel to the guarantee of a republican form of government offered to the States in the US Constitution, oppositional because they are crown representatives in Canada supporting a network of disallowance imposed without any popular will, either through ratification by vote or with representatives chosen by vote for their separate, constitutional, plenary power role in “confederation”. They were never and can never be vessels of the public will or implements of popular sovereignty, no matter what color they are, what country they originally hail from, or what “marginalized communities” they appeal to.

This soft-coup mechanism has been useful time and time again now that it has been established and legitimized that Canadian subjects need not be consulted for monumental constitutional change, it’s further compounded at the sub-national level with the lack of a written constitution as is the case in Nova Scotia, “the people” rest on a foundation of sand. People can vote for a crown representative but that doesn’t make them the people’s representative. People can participate in political parties but they are proprietary in the sense they aren’t like other corporate bodies in law as voluntary associations. “The People” are nowhere to be found except as the most rudimentary propulsion in making a singular mark at an “election” whose results can be rearranged after the fact by an executive we can’t vote for or impeach.]

“The Constitution Act 1867 declares that the executive power is vested in the Queen (s 9). It goes on to ascribe a range of specific powers to the Governor General without mentioning how that position is filled. The appointment of the Governor General is actually achieved under Letters Patent, last issued in 1947, under the Great Seal of Canada; those Letters Patent may be revoked or amended at any time by the Queen, but presumably with Canadian ministerial involvement as they guard the use of the Seal. There is to be a Queen’s Privy Council for Canada ‘to aid and advise in the Government of Canada’, whose members are appointed and may be removed at any time by the Governor General (s 11). The privy councillors’ uncertain tenure is compounded by their subservience under Article IX of the Letters Patent, which ‘require[s] and command[s]’ ministers ‘to be obedient, aiding, and assisting unto Our Governor General’. The Commander-in-Chief of Canadian military forces is stipulated to be the Queen by the Constitution Act 1867 (s 15), although the Governor General fulfills this role under the 1947 Letters Patent (art I). The Governor General is given the power to appoint Senators under the Constitution Act 1867 (ss 24, 32), to appoint the Speaker of the Senate (s 34), and to recommend to the Queen that she appoint on occasion either four or eight extra Senators beyond the normal numbers (s 26). The Governor General also appoints the judges of provincial superior courts (s 96). The Governor General also has a vital role to play in the legislative process. The Governor General has the power to summon, prorogue, and dissolve parliament.

Any ‘Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost’ must be recommended by the Governor General before the House of Commons may approve them (s 53). And, although the Queen is the formal font of the lawmaking powers of Parliament(s 91), the sovereign’s functional roles in legislation are exercised in practice by the Governor General.

Section 55 stipulates:
Where a Bill passed by the Houses of Parliament is presented to the Governor General for the Queen’s Assent, he shall declare, according to his Discretion, but subject to the Provisions of this Act and to Her Majesty’s Instructions, either that he assents thereto in the Queen’s name, or that he withholds the Queen’s Assent, or that here serves the Bill for the Signification of the Queen’s Pleasure.
Thus the Governor General retains complete discretion in law to approve or veto bills passed by the two houses of parliament, or even to reserve the bill for the British government to decide whether to approve. Remnants of colonial subservience still remain in the Constitution Act 1867 with the duty imposed on the Governor General to send copies of all bills given royal assent to the UK government. Furthermore, on the advice of the British government, the Queen may disallow any Act passed by the Canadian Parliament.

Section 56 reads:
Where the Governor General assents to a Bill in the Queen’s Name, he shall by the first convenient Opportunity send an authentic Copy of the Act to one of Her Majesty’s Principal Secretaries of State, and if the Queen in Council within Two Years after the Receipt thereof by the Secretary of State thinks fit to disallow the Act, such Disallowance (with a Certificate of the Secretary of State of the Day on which the Act was received by him) being signified by the Governor General, by Speech or Message to each of the Houses of the Parliament or by Proclamation, shall annul the Act from and after the Day of Such Signification.
If the Governor General has formally reserved a bill for the British government to advise the Queen on, it cannot become law unless the Governor General proclaims within two years that it has received royal assent from the Queen in Council (s 57). Another aspect in which the Constitution does not match reality lies in the powers of the Senate in the legislative process. The Senate was created as an essentially equal partner with the House of Commons, as the approval of both houses is required for bills to be presented for royal assent (s 91). The only impediment on the Senate is that certain financial bills may only originate in the House of Commons (s 53). The Constitution also contains some serious lacunae in not mentioning pivotal actors. Given their importance, it may seem curious at first that such key actors as the Prime Minister and cabinet were not explicitly mentioned in the original Constitution. The Prime Minister was not even mentioned in constitutional statutes until the Constitution Act 1982 imposed duties on the Prime Minister to convene conferences to discuss particular issues in ss 35.1, 37 (now repealed), and 49. Although Cabinet is functionally the most powerful political institution, it has not been mentioned in Canadian constitutional documents. It is a committee of the much larger Privy Council, and by convention only those members of the Privy Council who belong to the cabinet are normally entitled to participate in the affairs of state.

Modern parliamentary democracy depends almost entirely on political parties to give its structure, both in the conduct of elections, the formation and operation of governments, and virtually all the proceedings in the legislatures.
And yet political parties are essentially unknown in Canadian law outside of electoral legislation and the rules governing parliamentary process. Not only are parties not mentioned in the formal Constitution, they remain in law voluntary associations with very limited capacity to sue or be sued. Even so, important conventions and understandings about party discipline, as well as the control of parliamentary process and assignments by party leaders, define the essential character of modern parliamentary government.

The subjugation of the provincial level of government to the federal authority is also enshrined in powers accorded the Governor General in the formal Constitution. The Lieutenant Governors are appointed by, and may be instructed and removed, by the Governor General (s.58 & s.59). They fill the same roles in provincial government as the Governor General at the national level. And provincial legislation faces the same legal uncertainties after the members of the assembly have passed a bill, as do bills passed by the House of Commons and Senate. Subject to instruction from the Governor General, the Lieutenant Governors may grant or refuse assent to bills passed by their assembly, as well as reserve a bill for the Governor General’s consideration(s 90). Within one year of a bill being reserved, the Governor General in Council can decide whether it should be granted assent. Furthermore, even bills which have been granted royal assent by the Lieutenant Governor are subject to being disallowed by the Governor General in Council. For the first half of Canada’s existence, these powers of reservation and disallowance were very live powers indeed. A total of 70 bills were reserved by Lieutenant Governors, and only 14 were subsequently granted assent by the Governor General. In addition, the federal government had disallowed a further 112 Acts granted royal assent by the Lieutenant Governors by the time of the last instance in 1943. These arrangements are among the reasons why KC Wheare characterised Canada as only having a quasi-federal Constitution.”

“Before accepting a role for convention in constitutional law, however, one needs to address the single most important set of objections to judicial inclusion of convention within the broad tent of constitutional interpretation: the malleable, disputed, and indeterminate character of many conventional rules.Undoubtedly some conventions are vague at best, while others have been ignored without substantive repercussions. But it is a far cry both logically and evidentially to conclude from the vagueness, controversy, and inconsistent observance of some conventions that all conventions are indeterminate, disputed, or inconsequential. That conclusion would simply be a factual error, because there are a number of conventions whose terms are quite clear, almost universally accepted, and invariably respected by political actors. For example, there is no doubt that Canadian governors may not personally decide to refuse royal assent to bills, or reserve them for consideration by others. While some conventions might not be suitable for judicial consideration, others may be indispensable to interpreting the Constitution in ways that reflect what is considered legitimate in contemporary society.It is possible to identify different types of conventions based on four related elements: the degree of importance of the constitutional principle which justifies the convention, the level of agreement on that principle, the precision with which the terms of the rule can be expressed, and how significantly the convention impacts the principle involved. With different combinations of those factors, conventions will vary according to the degree of consensus that supports them, the effect their breach or total absence will have upon the constitution, and the degree of flexibility political actors have in complying with them.”

“Ultimately, the Supreme Court of Canada appears to have abandoned a formal conception of the rule of law and embraced a substantive conception, where fundamental principles and values determine how the law can be interpreted. Such a conclusion may be the inevitable response to a glaring lack of congruence between Canada’s constitutional law as it appears in the formal documents of the Constitution, on the one hand, and the very different ways in which the powers of government are expected to operate in practice, on the other. The embrace of unwritten constitutional principles into the legal structure of the Constitution is the most practical response to a body of supreme law that cannot legitimately operate or be enforced as written. The identification and inclusion of the most important categories of constitutional conventions also appears to be a logical and necessary step to ensure the Constitution reflects reality and to resolve Canada’s rule of law dilemma.”

Heard, Andrew. “Constitutional Conventions and Written Constitutions: The Rule of Law Implications in Canada.” Vol 38 No 2 2015, 2015.