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As the country’s set of basic (or supreme) laws, the constitution has a direct bearing on how Canada is governed. That is, the constitution determines how other laws on current policy issues are made. The constitutional order may be viewed in terms of three key dimensions: the constitutional principles that underlie the political system, the sources of those principles, and the mechanisms for making constitutional amendments.
The authors initially clarify three principles that are fundamental to the Canadian constitutional order. The first principle is parliamentary democracy, based on the British Westminster model, which embraces the concepts of liberal democracy, representative democracy, constitutional monarchy, and responsible government. The second principle is federalism, which is reflective of American origin. Finally, the third principle—with the increased recognition of treaty and land rights—is Indigenous self-government.
These constitutional principles are enshrined not in a single constitutional document but are scattered over numerous sources. In addition, although some portions of Canada’s constitutional order are written, other portions are unwritten practices known as constitutional conventions.
Next, the authors identify the three core sources of Canada’s constitutional order: constitutional laws, constitutional conventions, and judicial opinions.
Besides Canada’s constitutional principles and their source components, there is the matter of constitutional change. The “living tree” analogy points out that a constitution needs to evolve to meet changing circumstances. This raises the contentious issue, however, as to where to draw the balancing line between flexibility and rigidity.
After highlighting the initial creation of Canada’s constitutional order in 1867 followed by several decades of evolution, the authors then direct attention to the period of mega-constitutional politics during the latter part of the twentieth century. These discussions led to the patriation of the constitution in 1982, the adoption of the Charter of Rights and Freedoms, and the stipulation of amendment formulae. Subsequent negotiations that led to the Meech Lake Accord and the Charlottetown Accord ultimately failed to achieve acceptance. The constitutional timeline ends with a brief analysis into the post-constitutional period following the 1995 Quebec referendum.
The final part of the chapter examines the Charter of Rights and Freedoms and provides a brief discussion on charter politics. This segment looks at some of the more recent Charter cases and its outcomes. Finally, the chapter ends with a debate and discussion on the challenges associated with constitutional amendments as well as a profile on Lori Turnbull, whose research and teaching focusses on Canadian parliamentary democracy and governance.
Learning Objectives
By the end of this chapter, students should be able to:
- recognize the basic laws that constitute the constitution of the political system of Canada, as several or recent issues are based in some way on the constitution;
- understand the source components of Canada’s constitutional order, both the documents and conventions that make up the constitution, and the democratic constitutional principles found in these sources;
- track the evolution of the constitutional order over time; and
- debate the politics pertaining to the Charter of Rights and Freedoms.