2

Canada's constitution is not a single document, but many documents passed over time.

Is there existing case law as to whether parts of an older constitutional document can be found unconstitutional in light of newer constitutional documents?

For the purposes of this question, I'm excluding cases where the newer document directly repeals older documents, or parts of them.

2

No, all text of the Canadian constitution is of equal force.

The 1993 Supreme Court case New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) makes this clear:

It is a basic rule, not disputed in this case, that one part of the Constitution cannot be abrogated or diminished by another part of the Constitution: Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148. So if the privilege to expel strangers from the legislative assembly is constitutional, it cannot be abrogated by the Charter, even if the Charter otherwise applies to the body making the ruling. This raises the critical question: is the privilege of the legislative assembly to exclude strangers from its chamber a constitutional power?

The opinion went on to determine that the privilege of the legislative assembly to exclude strangers was an unwritten constitutional principle which could not be abrogated by the written constitutional Charter (though they did not specifically call it an unwritten constitutional principle at the time, this is retroactively so through Reference Re Secession of Quebec para. 52).

Edit: Following Toronto (City) v. Ontario (AG) 2021 SCC 34, it's not entirely clear New Brunswick Broadcasting Co. is still good law as the majority relegated unwritten principles to interpretive aids and filling structural gaps of the written Constitution, without referencing this case. The rule that the (written) Constitution cannot contradict itself seems logical though, and the cited Reference re Bill 30 does indeed state at para. 62 that the written Charter cannot override other parts of the Constitution (presumably we should read that as specifically written parts, since that's what was at issue in the reference).

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.