4.1 An ‘untidy’ constitution
If the UK’s constitution were to be examined here it would become clear that its ‘untidiness’ is a matter of history specific to Britain. The same is true for Canada; the fact that its constitution is composed of many, rather than one single, document is a product of its history.
That does not mean that Canada has an unwritten constitution. However, it has a constitution that has been shaped by several different written sources. When it comes to pinning down a constitution that draws its character from more than one document, the next reasonable step for a law student is probably to look to legislation. What are the significant pieces of legislation that contribute to the constitution of Canada? Broadly speaking, you can identify the Canadian constitutional legislation as consisting of three Acts: the British North America (Constitution) Act 1867 (BNA 1867), the Canada Act 1982 and the Constitution Act 1982.
But a constitution, like Canada’s, is not going to be wholly made by the same material. Indeed, Canada owes its constitutional development to its specific judicial system. An example of this is that the civil law in Quebec is entirely codified so it stands outside the common law principle of judicial precedent that each of the other Canadian territories follows. This is a product of the cultural, legal and political clashes between British and French settlers. Regarding this point, you will notice that one of the Canadian constitutional documents – the BNA 1867 (and subsequent amending British North America Acts) – is a British enactment, owing to the several British colonies in North America that were brought together and named the dominion of Canada. In fact, the other two Acts also emanate from the UK Parliament; it was only in 1982 that Canada finally took from Britain full control and power over its own constitution. It will be made evident in this course that the encounter between European settlers and indigenous populations in what has become ‘Canada’ also significantly shapes the content of the Canadian constitution and the role of the Canadian courts.
Activity 8 Canadian (constitutional) history
View the interactive map and click on Canada. Read the overview of Canada’s history pre-1867. Then select each of the buttons underneath the map of Canada to explore its history post-1867.
To access the map, click on it or press the ‘View’ button located underneath it to the right. To return to the main course from within the map page, scroll down and click on the back arrow and section title. It is recommended that you open the map in a new window or tab.
You may get the impression from the interactive map that Canada developed steadily over the course of the last 150 years. You will also notice that this development is linked with developments in British law. How Canada has developed in relation to the UK to gain full competency over its own constitution will be developed throughout this section.