Charter, Constitutionality and the Honour of the Crown: Considering an Additional Constraint

Abstract

The provincial governments of Ontario and Quebec recently deployed section 33 of the Canadian Charter of Rights and Freedoms to curtail labour rights and religious freedoms in ways that have surprised voters and lawyers alike. Many commentators argue that section 33 was intended to be used sparingly in only the direst of circumstances. This contention does not survive a plain reading of the Constitution Act, 1982. In this paper, we explore the common law doctrine of the honour of the Crown and its potential constraint on executive power that gives texture to elected leaders’ and public officials’ relationship to the Constitution and the state. We analyze the doctrine’s development to argue that the honour of the Crown resonates with the popular sentiment shared by many: elected leaders cannot simply deploy section 33 at will. The feudal concept of honour owed to and from the Crown animates the Westminster system and Canada’s Charter of Rights and Freedoms in ways that provide legal arguments that may constrain political leaders from tyranny and overreach.