Many of the last few blogs published on this site have focused on obscure and fuzzy legal topics that are of much more interest to those in a university classroom than to practicing lawyers. This blog on Desuetude continues that trend.
Much of the research I would have done on this topic was helpfully compiled in a journal article back in 2014 by esteemed constitutional law scholar Richard Albert. His work on the subject is monumental, even if not all of his predictions came to pass—he made an implied prediction that provincial use of the Notwithstanding Clause would soon fall into desuetude; he hedged his bets, of course, but it was clear from the text that that was what he expected to happen.1
I’m getting ahead of myself, though. What is desuetude? Desuetude is a legal principle wherein law falls into effective nonexistence after a deliberate and sustained period of disuse because its use has become something that ought not be done. Usually, desuetude is enforced by tremendous political, rather than legal, consequences. Technically, there are two kinds of desuetude: statutory and constitutional; only the latter is valid in Canada.2
In any case, talking about constitutional desuetude in a legal blog is very awkward. It’s less a matter of law and more a matter of politics. Purposeful disuse and repudiation of a power or law is done for political reasons, and it is enforced through political mechanisms. There’s nothing either statutorily or jurisprudentially that actually inhibits or prevents the use of a desuetudinal legal principle. In fact, courts have specifically refused to enforce the fact that a law or power has been rendered unusable. This is because their obligations towards the letter of the law and judicial jurisprudence would require them to enforce the opposite if they were forced into making a choice, upholding the validity of a law that has become the victim of desuetude. Instead, they recognize when constitutional desuetude has come into play, but refuse to enforce it.3
Desuetude is a type of negative political convention.4 It is the representation of a type of gap between what the law is theoretically and what the law is practically. That’s difficult to conceptualize in the abstract, so let me use a hypothetical scenario to explain it a bit better.
Imagine the Republic of Imagination Land. This republic has a fairly standard legal landscape, similar to ours, except for one provision in its constitution. This provision states that their prime minister must offer up his or her own life should the neighbouring Kingdom of Tinyness ever invade. This provision was created almost a century ago, in a vastly different world. The Kingdom of Tinyness has no need or desire to invade Imagination Land. Even if they did, they simply do not have the capability to do so. The prime minister of Imagination Land is also unwilling to ever offer up his own life, and his predecessor would not have offered up hers. Certainly, the people of the republic wouldn’t idly allow their heads of government to do anything so foolhardy.
In this scenario, there is a law that exists in the books, by all legal accounts it remains valid, but it will never come into use. It is so divorced from the real world that its existence is completely immaterial. If a law does nothing and affects no one, is it even a law? Not by any practical account.
Desuetudinal Law in Canada
Stepping away from the foundations of this principle and my exaggerated illustration, let’s return to the Great North, strong and free. Has any law in Canada ever been crippled by desuetude? It’s hard to give an answer to that question; there isn’t exactly a fixed and binding test for desuetude, at least not one that is universally recognized. With that said, there are generally accepted to be somewhere between two and five powers that are now inactive and desuetudinal.
It would be hard to find any serious scholar who disagrees with the notion that disallowance and reservation, powers last exercised half a century ago and controversial even then, have fallen into desuetude. These powers gave the federal government the ability to prevent, or force federal consideration of, provincial laws.5
In a similar vein, the British government had held the same powers of disallowance and reservation over all of Canada for a time, but those haven’t been utilized in a century and a half and are certainly desuetudinal, though not certainly Canadian, hence the range.6
The final power of note is the most uncertain: federal use of the infamous Notwithstanding Clause contained within the Charter of Rights and Freedoms, one of our most important constitutional documents. It has never been used since its inception in 1982, but nothing has ever really indicated that it can’t be used. Many people believe that it is desuetudinal at this point, but a thesis project from the University of Toronto by Charles Buck makes a strong argument that it is still a constitutionally valid power because there is no public consensus that its use would be unacceptable, which would not be true if it had fallen into desuetude like disallowance. There would not be severe public blowback to the same extent. Still, if it isn’t desuetudinal, then it is, at the very least, pretty close to it. It straddles the border between usable and not, and part of that is because it is a pretty extreme power that was never intended to be used with frequency.7
In any case, constitutional desuetude is a term used to describe the practical realities of a situation, rather than a binding principle. Ultimately, it doesn’t mean that much. It may very well even be theoretically possible for a power to fall out of being desuetude if the political landscape evolves in strange and unpredictable ways. Nothing is really certain on this topic, but it is certainly interesting.
Endnotes
- Richard Albert, “Constitutional Amendment by Constitutional Desuetude” (1 March 2014) Rochester, NY, online: <https://papers.ssrn.com/abstract=2461509> at 669–673.
- Ibid at 651–654.
- Ibid at 652, 663–665.
- Ibid at 641.
- Ibid at 660–669.
- Ibid at 656–660.
- Charles Buck, The Desuetude of the Notwithstanding Clause—Fact or Fiction? University of Toronto, 2022) at 87–94.
