Constitutional Law in Canada
Constitutional law is the law that establishes, allocates and limits public power.
In modern times, most major constitutions are written. A few - that of the United Kingdom, for example - remain unwritten.
Canada's constitution is partly written and partly unwritten. The writings are in several rather than one document. The main documents are the Constitution Act, 1867 and its amendments, and the Constitution Act, 1982. A useful guide to other Constitutional documents is available online at http://www.solon.org/Constitutions/Canada/English/index.html.
Certain statutes (referred to as "organic statutes") are constitutional in nature. These statutes organize institutions created by the Constitution Acts. The Parliament of Canada Act, 1875 and the Courts of Justice Act (Ont.) are examples of organic statutes.
Other parts of Canada's Constitution are unwritten. A critical part of the unwritten constitutional rules are "constitutional principles". These derive from several related sources. They are inherent in Canada's "basic constitutional structure" (OPSEU v. Ontario, ¶144; Hunt v. T&N, ¶56) or "implicit in the very nature of a Constitution" (Manitoba Language Rights Reference, ¶ 64). Constitutional principles are constitutional imperatives; they are beyond the powers of Canadian legislatures to override (Hunt, ¶56; Secession Reference, ¶54).
Another element of Canada's unwritten Constitution consists of "usages, practices, customs and conventions". The rules of responsible government are of this character. These regulate the relations between the Crown, the Prime Minister, the Cabinet and the two Houses of Parliament.
Constitutional conventions are "essential rules of the Constitution". Unlike judge made or common law rules, "they are not based on judicial precedents but on precedents established by the institutions of government" (Patriation Reference). Courts do not enforce them, but other institutions of government may. For example if, after defeat at the polls, the government of the day refused to resign, the remedy would lie with the Governor General "who would be justified in dismissing the Ministry and calling on the opposition to form the Government" (Patriation Reference).
This website explores these sources in order to make them available and understandable to students of constitutional law.