Ajzenstat on the BNA Act

11 10 2009

Janet Ajzenstat has replied to a recent post in which I said that Canada’s constitution was partly written and partly unwritten. A written constitution is one in which the political system is blueprinted in one or more written documents. In an unwritten constitution, important offices and practices are defined by custom and tradition, not a written document.  The United States has a written constitution that, among other things, describes the powers and mode of selecting the President and the Congress. Britain has a largely unwritten constitution: the office of Prime Minister evolved gradually and there is no constitutional document defining that office or its occupant’s powers or mode of selection.  “Responsible Government”, the cornerstone principle of Canada’s system of government, is not described or mandated in any of Canada’s constitutional documents. Indeed, the office of Prime Minister went unmentioned in the British North America Act of 1867. Professor Ajzenstat has said that I was wrong to assert that Canada’s constitution is partly unwritten because there are sections of the British North America Act that allude to Responsible Government and which suggest that the drafters of the statute had Responsible Government in mind. The BNA Act certainly referred to the Ministers of Agriculture and Finance, but it made no reference to the office of Prime Minister. It is true that the written part of Canada’s constitution was created with the unwritten conventions in mind, but this does not mean that Canada’s constitution is entirely or even mainly written. Canada’s constitution is a hybrid, combining bits of the British and American constitutions. Perhaps the most important part of Canada’s written constitution is the preamble, which states that the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire [for]… a Constitution similar in Principle to that of the United Kingdom.” These words entrenched parts of Britain’s unwritten constitution in the Canadian constitution.

It seems to me that it is an indisputable fact that Canada’s constitution is partly unwritten. That’s why the constitutionality of things like last December’s proposed coalition is a matter of passionate debate. (Indeed, the identity of Canada’s head of state is also a constitutional grey area). Whether or not Canada’s half-written, half-unwritten constitution represents an ideal arrangement is, of course, a matter open for discussion.