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Understanding Unconstitutionality

The following is an excerpt from Mr. Peltomaa’s recently published text, Understanding Unconstitutionality: How a Country Lost its Way. 


Courts are often said to “strike down” laws that conflict with the Constitution. An image is evoked of black-robed judges hurling bolts of lightning in Zeus-like manner, thereby destroying the legal efficacy of unconstitutional laws and expunging them from the statute books. This conception of the invalidation process is, however, erroneous and misleading. A law does not become unconstitutional because a court makes a declaration to that effect. An unconstitutional law is invalid and of no legal force or effect from the moment of its enactment. The court’s declaration does nothing more than recognize what has always been the law’s legal status. It follows that a court cannot, by refraining from striking down a law or by purporting to delay the effective date of its strike-down order, allow an unconstitutional enactment to operate as valid law even temporarily.

This is not how things work in Canada, however. As strange as it may seem, Canadian courts routinely make orders which allow governments to act unlawfully following findings of unconstitutionality. Labelled euphemistically as suspended or delayed declarations of invalidity, they purport to give temporary force and effect to laws which violate the Constitution. Ironically, the rule of law is often invoked to help justify the making of such orders. The courts act pragmatically under guise of a self-invented power to deem the law to be different than it actually is. This has resulted, among other things, in the prosecution and conviction of persons under unconstitutional laws, orders allowing governments to exact illegal taxes, unlawful participation of police officers at bail hearings, and denials of a constitutional right to medically-assisted death.

The judges offer no legally coherent explanation or justification for their claims to these extraordinary powers. Invariably, they point to the Supreme Court’s much-celebrated – though widely misunderstand – decision in Manitoba Language Rights, a 1985 case in which it was decided that substantially all of Manitoba’s statutes which had been invalidly enacted in English only since 1890 should be deemed temporarily valid and enforceable pending translation and re-enactment in French. This was to prevent a legal void in the province. Having identified a state of emergency, the Court, in the spirit of German political theorist Carl Schmitt, effectively declared itself sovereign to deal with it. This it did by deeming the unlawful to be lawful. By arrogating to itself the authority to manage the apprehended crisis, the Court pre-empted the executive and legislative branches from exercising their recognized powers and prerogatives over public emergencies. The jurisprudential legacy of the Manitoba Language Rights decision has been an erosion of Canadian judicial fidelity to the rule of law. It is as though the Canadian judicial fleet has become unanchored from core principles of the law and allowed to drift off in search of a more discretion-based and pragmatic approach to constitutional decision-making.

Judges in other common law jurisdictions have generally refused to follow the lead of Canadian courts in asserting a power to turn unlawful water into lawful wine. They have remained faithful to the rule of law. Canadian courts, on the other hand, seem to have found refuge in a Lewis Carroll-like place of constitutional enchantment: where language can be added to or subtracted from legislative text; where words in the Constitution do not necessarily mean what they say; where life can mysteriously be breathed into constitutionally comatose enactments; and where laws can be regarded, like Schrodinger’s cat, as both valid and invalid at the same time. This has resulted, among other things, in Canadian judges believing that they have the power to reconstruct or repair constitutionally-flawed enactments in order to bring them into line with the Constitution. As will be shown, that is exclusively the job of the legislative branch. Contrary to popular belief, there is no such thing as a remedy of constitutional invalidation, and courts have no power to add to, subtract from, vary, or amend constitutionally infirm statutes.

Another consequence of Canadian judges believing that they have the power to deem the law temporarily to be what it is not, is that they have decided that they must also have discretion as to the very existence of constitutional rights. More than a century ago Lord Shaw famously warned that: “To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand.” The road to authoritarianism begins when the rock of the law is allowed to be eroded by the sand of discretion. Rights are rights are rights. Conceding to courts any discretion as to the existence of constitutional rights is to allow the rule of law to be supplanted by the rule of judges. Former Canadian Chief Justice Antonio Lamer described the preamble to Canada’s Constitution in eloquent and inspired prose in a 1997 decision: “[It] serves as the grand entrance hall to the castle of the Constitution.” A castle built on foundations of sand, however, will eventually crumble to the ground.

A principle-based order and structure needs to be established in this embarrassingly muddled area of the law. The pragmatic utility of suspended declarations and similar devices does not permit courts to ignore the dictates of the Constitution. Pragmatism – like public policy – if not confined to the parameters of the law, can become a very unruly horse. As it was explained by an English judge almost two hundred years ago: “[O]nce you get astride it you never know where it will carry you.

A great deal of work lies ahead. Canada’s legal academy needs especially to step up to the plate. The principles of constitutional supremacy and the rule of law are too important to leave solely in the hands of judges.