The peculiarity of the Canadian Constitution is that it includes two parts, namely: written, which consists of separate judicial precedents and legislative acts, and unwritten – in the form of agreements and established legal customs. The most surprising aspect of the Canadian Constitution is that, at a time when in many countries of the world, legislation is regularly rewritten, in Canada, many laws are so deeply entrenched in the Canadian culture that they exist by consensus and do not necessitate written form.
The unwritten part of the Constitution traditionally includes constitutional agreements, judicial precedents, and interpretative acts that originally came from the Judicial Committee of the Privy Council and then from the Supreme Court of Canada (McWhinney, 2019). The unwritten part of the Constitution of the state is represented by established legal customs and convention agreements. Convention agreements are customs and regulations established by the judicial system. Constitutional conventions include, for example, the appointment of ministers only on the recommendation of the Prime Minister and the appointment by the Prime Minister of the head of the party that received a parliamentary majority as a result of democratic elections.
It is also surprising that, when many people believe that legislation should be governed by written documents, the existence of an unwritten Constitution in Canada actually provides some advantages. Thus, society always has the opportunity for a change without the necessity to introduce amendments to the formal Constitution and the state – to adequately regulate the actual constitutional relations. The very existence of an unwritten constitution indicates that some fundamental democratic principles are so firmly entrenched in the political life of the state that there is no need for any special formal document fixing them.
Another astonishing point is that each separate element of the Constitution is connected with others and should be interpreted depending on the structure of the Constitution as a whole, considering its written and unwritten parts. These principles help to interpret the text and define areas of competence, rights and responsibilities, as well as the role of political institutions (McWhinney, 2019). It is equally important that respect for these principles is necessary in the constant process of constitutional development and evolution of the Constitution. The fundamental constitutional principles allow, in certain circumstances, to talk about important legal obligations that represent significant restrictions on the actions of the authorities. These principles may be linked to very abstract and general obligations, or they may be more specific and precise in nature. These principles are not just descriptive; they are also invested with a powerful normative base, and both courts and governments are bound by them (McWhinney, 2019). In other words, in constitutional proceedings, the Court can take into account the unwritten postulates that form the basis of The Constitution of Canada.
References
McWhinney, E. (2019). Canada and the Constitution 1979–1982. University of Toronto Press.