Part of my research includes studying the unwritten constitution. When Americans refer to their constitution, they mean one complete and concise document; while Americans can frame a copy of their constitution and hand it on a wall, Canadians cannot, because our constitution consists of several written sources and unwritten convention. To many, perhaps because of an unconscious reference point to the American system, which is not truly comparable to Westminster parliamentarism in some crucial ways, the very concept of an “unwritten constitution” may sound inherently paradoxical, so I will attempt to explain here why it is not.

An unwritten constitution consists of conventions. In my earlier post on the accidental development of cabinet government, I argued that constitutional convention evolves from a custom or practice that served a valuable purpose by complementing written rules and statutes, and ultimately became integral to the conduct of parliamentary government. They are also politically enforceable, and therefore not justiciable; parliamentarians, not the courts, must sort out their implications. As a result, conventions tend to develop and change over time and practice as needed. Problems can admittedly arise when substantial disagreement exists over their interpretation, which we witnessed here in Canada in December 2008. (More on that later!) In Canada, these conventions have become as essential to the function of government as the written Constitution Act, 1867 and the Constitution Act, 1982. Moreover, the Constitution Act, 1867 acknowledges that unwritten convention forms an integral part of the Canadian constitution by describing the latter in the preamble as “similar in Principle to that of the United Kingdom.” For example, the cornerstone of parliamentary government, responsible government, is but one of these unwritten constitutional conventions, and without it, modern Westminster parliamentarism would cease to function and representative government.

A constitution based on unwritten conventions is in many respects more substantive and powerful than a written constitution, because the former can only exist when it holds a moral authority over the system that compels people to respect and observe it. In other words, an unwritten constitution like that of the United Kingdom can only flourish when a genuine, well-established democratic spirit already exists. This is the sublime and subtle virtue of an unwritten constitution. In contrast, written constitutions, under the wrong conditions, can become nothing more than worthless scraps of paper: Article 50 of the Soviet Union’s written constitution enshrined the freedom of speech, for instance – and we all know of that document’s effectiveness in securing liberty.

That is why I would have expected a respectable historian and a former Member of Parliament like John English to respond to the false premise of the reporter’s question. Pierre Trudeau did not “give Canada its own constitution”, as the interviewer claims and as English tacitly accepts.

Sadly, however, English merely shares a false opinion popular among many laymen and, more disturbingly, political scientists alike. I’ve engaged some professors who study or teach “Canadian politics” and yet know little to nothing about our constitution ­– the practical foundation that makes all of their studies possible – but prefer instead of focus exclusively on perfunctory and trite issues like political parties and identity politics. One professor in particular from Carleton University didn’t even seem to understand the distinction between the Charter of Rights and Freedoms and the Constitution Act, 1982 – let alone the nuances of the amending formula contained in the latter – and another professor, also from Carleton, demonstrated before an entire audience his lack of appreciation for the fact that history matters in Westminster parliamentarism.

Peter Hogg’s magnum opus Constitutional Law of Canada provides in the first chapter an excellent summary of Canada’s constitution and the role of constitutional convention. I learned from Hogg and Rand Dyck’s lecture in his course Canadian Constitutional Politics (which any student of political science at Carleton should take!) that the Canadian constitution consists of the following elements:

1. Constitution Act, 1867 and its amendments
2. Constitution Act, 1982 and its amendments
   • The Charter of Rights and Freedoms
3. British statues and Orders-in-Council
   • Magna Carta
   • The English Bill of Rights
   • The Act of Settlement
   • The Mutiny Act
   • The Statute of Westminster
   • Orders-in-Council transferring Rupert’s Land and other British crown colonies to the Dominion of Canada
   • Etc.
4. Organic Canadian statutes
   • Canada Elections Act
   • Supreme Court Act
   • Official Languages Act
   • Financial Administration Act
   • Etc.
5. Judicial decision, particularly those relating to the division of powers and the Charter of Rights and Freedoms
6. Conventions
   • Responsible government
     • The confidence convention
   • The role of the crown
   • Cabinet government
     • Collective and individual ministerial responsibility
   • Etc.

The Supreme Court of Canada recognised in the Secession Reference that the third point on British statutes incorporates Magna Carta and the English Bill of Rights into the Canadian constitution: “The evolution of our democratic tradition can be traced back to Magna Carta (1215) and before, through the long struggle for Parliamentary supremacy which culminated in the English Bill of Rights of 1689, the emergence of representative institutions in the colonial era, [and] the development of responsible government in the 19^th century […].”

Queen Elizabeth II signs off on patriation

The fourth point of organic Canadian statutes refers to legislation passed by the Parliament of Canada of constitutional significance integral to our system of government. I’m not sure if a precise definition of this list exists, but it would probably include the following: The Elections Act, the Supreme Court Act, the Financial Administration Act, the Official Languages Act, etc.

Pierre Trudeau did many things, but he did not give Canada its own constitution – his government merely build upon a constitution that, contrary to popular belief, had already been well-established. The Trudeau government did “give us the Charter” – but Trudeau did not suddenly confer rights upon previously subjugated Canadians. The Charter merely codified most of the rights that Canadians had already long enjoyed.

Related Posts

• The Components of Canada’s Written Constitution