Written and Unwritten Conventions Constitutions Written and Unwritten Conventions

Constitutions A constitution is generally defined as a set of rules that establish both the structure and the fundamental principles of the government in a nation or other territory

Constitutions Constitutions serve several purposes: 1. They help establish what person or persons will exercise political authority. 2. They help provide an authoritative division of powers between national and regional governments in federal countries (like Canada). 3. They help delineate the limits of governmental power.

Canada’s Constitution The Constitution Act, 1867 (formerly the British North America Act), identified authoritative legislative powers between federal and provincial governments Early on, Canada could not pass laws independently of Britain e.g. no international trade agreements without Britain Division of powers outlined in Sections 91, 92, and 93 of the Constitution

System of Government: Federal! We had many models to choose from when considering our system of Government We could have chose – Unitary System (like Britain) which is a one level system of government – one parliament led by one Prime Minister This was considered not right for Canada as the nation was too big and diverse A federal system, a two-level system of governing was chosen (Federal and Provincial levels of government)

Canada’s Constitution- Division of Power Constitution outlines the roles and responsibilities between the Federal and Provincial Governments Federal government is responsible for creating laws and those laws are uniformly applied in each province Provinces responsibilities are of a local nature such as education and health care Provinces delegate their responsibilities to third level of gov (Municipal). This is not outlined in the constitution Some powers are delegated to First Nations, to be exercised in a defined territory Provincial law cannot supersede federal law

Conflict of Power Residual powers (law making powers in legislative areas that were not specific to either the Fed or Prov gov) were also granted to the federal government (airports, telecommunications)

Doctrine of Ultra Vires Passing a law within a governments jursidiction is known as INTRA VIRES – latin for “within the power” If it is found a government outsteps their authority, it will be declared ULTRA VIRES – latin for “beyond the power” E.g. it would be ULTRA VIRES for a province to try to make laws concerning criminal matters as that is the authority of the federal government

Sources of Constitutional Authority in Canada While most people tend to think of “the Constitution” as a document, the truth is more complicated. In the words of the Supreme Court of Canada: “constitutional conventions plus constitutional law equal the total constitution of the country.” These can be written or unwritten.

Sources of Constitutional Authority in Canada The Canadian Constitution is composed of: The Constitution Act, 1982, including the Canadian Charter of Rights and Freedoms. The Constitution Act, 1867 (previously the British North America Act, 1867), and its amendments. Acts of Canadian and British parliament.

Sources of Constitutional Authority in Canada The Canadian Constitution is composed of: Court decisions in Canada and Britain. Customs and traditions. Other sources, such as Scholarly writings, the decisions of courts in different countries (especially the U.S., Britain, and France)

Constitutional Conventions Constitutional conventions are the customs and traditions that guide government. Such unwritten principles can be more important than many laws. These rules are essential to the functioning of our government. As such, violations are rare. Constitutional conventions have developed over time and are not outlined in any document.

Constitutional Conventions Courts cannot enforce constitutional conventions. Any government violating a constitutional convention without having very good reasons would probably be defeated in an election. The fact that these conventions remain unwritten allows for innovation and change over time.

Examples of Constitutional Conventions The prime minister needs the support of the House of Commons to stay in power. If he or she loses a vote of non-confidence, an election is usually held soon afterward. Seats on the 9-member Supreme Court of Canada should be allocated regionally

Examples of Constitutional Conventions There is no provision in the Constitution Act, 1867 or the Constitution Act, 1982, for a Cabinet. The Governor General is required to give assent to Bills A minister is sometimes selected from outside the House of Parliament. When this happens, however, the minister is expected by tradition to win a seat in Parliament as soon as possible.