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The Constitutional Order

Introduction by Emmett MacFarlane

What do we mean by the Constitutional Order? Why is it important to the study of Canadian Political Science?

Canada’s Constitutional Order has been an object of study for political scientists for as long as the discipline has existed. The Constitution of Canada was an innovation, because although Canada inherited a constitution modelled on that of the United Kingdom there were new, important differences. Among these differences were that the main components of Canada’s new constitution were written down, particularly to set out the divided authority of the federal and provincial orders of government. This written part of the Constitution, known then as the British North America Act, 1867, also laid out executive and legislative powers and other bargains of Confederation, like protections for minority languages, and religious denominations within and outside of Quebec.

There is much more to the Constitution of Canada however, and it includes a number of pre-Confederation laws, orders, and proclamations, including for example, the Royal Proclamation of 1763, the Quebec Act, 1774, and the Constitutional Act, 1791. The Constitution also includes a number of post-Confederation laws in addition to the British North America Act (i.e., the Constitution Act, 1867), the Statute of Westminster, and the Constitution Act, 1982.

At the same time, parts of the Constitution of Canada are also unwritten, reflecting a constitution “similar in principle” to that of the United Kingdom. These unwritten parts are called “constitutional conventions,” and are binding political rules of behaviour that are unenforced by courts. They are not therefore law, but they make the constitution function in practice. The central convention –- the lynchpin of Canada’s parliamentary system –- is responsible government, that is, the principle that the government operates so long as it enjoys the confidence of a majority of the members of the House of Commons (or provincial legislative assembly).

In short, the Constitutional Order is the combination of constitutional law -– the written components of the Constitution plus established jurisprudence -– and the conventions and practices surrounding the Constitution.

How has it usually been taught?

There have been many different areas of focus for those teaching the constitution in Canada. First, as an early example of a federal parliamentary system, courses on Canadian political science have long focused on the division of powers and the evolution of federalism through judicial interpretation. Like much of Canadian political science, early study of this aspect of the Constitution was mostly descriptive. Over time, scholars engaged in increasingly sophisticated analyses of the relationship between federalism and the Constitution, and many also added comparative perspectives.

Second, courses on Canadian political science have often focused on constitutional change. The British North America Act did not include an amending formula (a way to alter the constitution) and changes to Canada’s constitution had to be made in the British Parliament. Students are often taught about the quest for a domestic amending formula, including the many intergovernmental negotiations that occurred from 1927 to 1982.  The search for an amending formula would end in 1982 with the ‘patriation’ of the Constitution, as British approval was no longer required, but the challenging and contested negotiations would not. When Quebec leaders did not accept the 1982 Constitutional package, the country subsequently would face another two rounds of ‘mega-constitutional’ negotiations – the Meech Lake and Charlottetown accords – that would both culminate in failure and lead to the near break-up of the country in the form of the 1995 Quebec referendum on secession. In this way, both federalism scholars and those focused on constitutional change would spend several decades examining the national unity stakes of Constitutional change, and this has long been reflected in how Canadian political science is taught.

Third, since 1982, there has been a new focus in teaching and scholarship in Canadian politics on the role of the Canadian Charter of Rights and Freedoms. The Charter, as a new element of the Constitution, has received significant attention from political scientists, particularly related to judicial review, questions about inter-institutional “dialogue” over rights, and more recently, the role of courts and their policy impact. The Charter marks a significant change in Canada’s Constitutional Order, moving the country further away from the largely unwritten constitutional legacy of the United Kingdom.

How is this area changing? How should it change?

These areas of interest for political science describe the Constitutional Order in relatively narrow, colonial terms. But another key dimension of Canada’s Constitutional Order emerges from the fact there were pre-existing sovereign Indigenous nations on the land now called Canada. The contemporary Canadian state asserts sovereignty through the institution of the Crown by virtue of established treaties, but also exerts authority over large areas of territory lacking treaties. These treaties, both historic and modern, are part of the Canadian constitutional fabric, not only because they are entrenched in section 35 of the Constitution Act, 1982, and recognized in the Royal Proclamation of 1763, but because the inherent rights of Indigenous people are asserted on territory that is at once theirs, and also broadly understood as Canadian. This question of overlapping and conflicting sovereignties will become increasingly important. Students of political science today should be learning and thinking about the ways that the existing Canadian Constitutional Order might be altered to reconcile Crown sovereignty with the sovereignty, legal and political orders of First Nations, Inuit, and Métis peoples.

At the centre of teaching about the Constitution in Canadian political science is a reflective approach focusing on how power is exercised and limited, and how politics informs the institutions, structures, processes, policy debates, and fundamental questions about Canada’s constitutional identity and the values and rules established in the Constitution.