The Canadian Constitution February 28, 2007Posted by Ninja Clement in Politics and Law.
The Canadian Constitution has three main components: the formal, the informal and the conventional.
The formal part of the constitution is officially titled the “Constitution of Canada”. It includes several documents, the most important of which are the Constitution Act, 1982, the Canada Act, 1982, and the Constitution Act, 1867 (formerly called the British North America Act, 1867). The latter established the federal union of the three founding provinces (Upper and Lower Canada, New Brunswick and Nova Scotia) as one Dominion. Sections 91 and 92 of this Act empower the federal government and provincial governments, respectively. The Canada Act, 1982 is the parent statute of the Constitution Act, 1982, which contains the Canadian Charter of Rights and Freedoms, the rights of Aboriginal peoples and the regional equalization provisions, and the constitutional amending formulas. Of course, the Charter is the statute that enshrines the basic civil and political liberties of Canadians (e.g. freedom of expression, right to vote, etc.).
Other statues included in the formal part of the Constitution are the Statute of Westminster, 1931, which terminated British paramountcy over Canadian statutory law (except with respect to the Constitution Act, 1867) and the orders in council and statutes admitting the other provinces to Confederation after 1867.
The Supreme Court of Canada has also declared that certain (unwritten) principles are part of the formal constitution. Among the most important of these are the principles of federalism, democracy, the rule of law and constitutionalism (the notion that the constitution is the supreme law), protection of minority rights, independence of the judiciary, parliamentary privilege, full faith and credit (a common law rule requiring courts in one jurisdiction to acknowledge the priority of equivalent and higher level court decisions in other jurisdictions), federal paramountcy (a common law rule requiring courts to give precedence to federal statutes when federal and provincial laws conflict), and general protection of political speech.
The informal part of the constitution is a collection of statutes and rules that lie outside the “Constitution of Canada”, so described by section 52(2) of the Constitution Act, 1982. It includes, among other items, the Senate and House of Commons Act, the Supreme Court Act, the royal prerogative instruments (powers of the Crown (the head of state) that are not statutory in origin, such as the right to declare war and make treaties), and the common law rules for interpreting constitutional documents and defining royal prerogative powers. Although all of these statutes, instruments and rules have legal force, most of them do not prevail over the formal constitution.
Like the informal component, the conventional part is also external to the formal constitution. The conventional component, however, is not enforceable in law. It consists of long-standing and widely-accepted customs called ‘conventions’ , as well as the principles attached to these conventions. These reinforce fundamental political ideals, such as the standard of responsible government and the standard of representative government. For instance, the authority of the Prime Minister and Cabinet is derived from constitutional convention. The Constitution Act, 1867 does not mention ‘Prime Minister’ or ‘Cabinet’ at any point. Canadian’s acceptance of the Prime Minister as head of government is actually a matter of convention, not a matter of positive law. Hence, constitutional conventions are enforceable “politically, not legally”.
Bibliography: Introduction to Public Law, Sourcebook, 5th ed., by David W. Elliot (North York: Captus Press, 2000)