The Constitution: Written or Unwritten?

An activity for use with the Canada in the Making site

Student Guide

The Canadian Constitution is both written and unwritten, the combined product of acts and statutes, common law judgments and accepted political conventions. In this activity, you will form teams and debate whether the Canadian Constitution has evolved to be primarily written or unwritten.

Groups:

In this Activity, you will be assigned to one of three groups:

Divide the class into three groups:

1. The group arguing that the Constitution is mainly unwritten.
2. The group arguing that the Constitution is mainly written.
3. Judges (3 to 5 students).

You will have to research your arguments, or, if you are a judge, gain background knowledge on both arguments. Read the sections below for guidance, and refer to the sources given for information.

Rules of Debate:

A debate is stated as an affirmative proposition. The proposition for your debate will be:

Resolved:
The Constitution of Canada is mainly shaped by unwritten conventions.

A debate is generally broken down as follows:

• First speaker: in favour of the resolution (7 minutes)
  

• Second speaker: in opposition to the resolution (7 minutes)
  

• Short break
  

• Third speaker: in favour of the resolution (7 minutes)
  

• Fourth speaker: in opposition to the resolution (7 minutes)
  

• Short break
  

• Fifth speaker: opposition rebuttal (5 minutes)
  

• Sixth speaker: affirmative rebuttal (5 minutes)

Note on Sources

Primary sources
Primary sources represent the most authentic resources that historians can draw upon. The documents that you will be using below may be digitized, but are still considered primary sources. Try to use the sources available on the "Canada's Constitutional History" portion of the Canada in the Making Web site to strengthen your arguments.

For tips on how to use primary sources, go to the "Using Primary Sources in Your Work" page.
URL: http://www.canadian.org/citm/guide/essay_e.html

Secondary sources
Secondary sources are works that interpret or analyze an historical event or phenomenon. Generally the author is at least one step removed from the event. Although not as authentic as primary sources, secondary sources are still valuable.

Possible Sources of Information Online

Note: It is important to choose sources that are produced by reputable institutions or individuals. Such information is more likely to give you a balanced, neutral view and be prepared or reviewed by experts.

The Written and Unwritten Constitution

Canada in the Making: The Written and Unwritten Constitution
URL: http://www.canadiana.org/citm/specifique/written/written_e.html

Common Law and Civil Law

Canada in the Making: Common Law and Civil Law
URL: http://www.canadiana.org/citm/specifique/lois/lois_e.html

Responsible Government

Canada in the Making: Responsible Government
URL: http://www.canadiana.org/citm/specifique/responsable/responsable_e.html

General

Canada in the Making: Canada's Constitutional History
URL: http://www.canadiana.org/citm/themes/constitution1_e.html

The Canadian Encyclopedia
URL: http://www.thecanadianencyclopedia.com

National Archives of Canada: Canada's Constitutional Evolution
URL: http://www.archives.ca/05/051103_f.html (French)
URL: http://www.archives.ca/05/051103_e.html (English)

Solon Law Archives: Canadian Constitutional Documents
URL: http://www.solon.org/Constitutions/Canada/

Group 1:
The Constitution of Canada is mainly shaped by unwritten conventions.

You must find evidence to support your arguments that Canada's Constitution is mainly shaped by unwritten rules. Some significant unwritten rules, which shape the way we are governed, include:

• A government responsible to the elected members of the Parliament and not the governor general, first won in the 1840s.
  

• Cabinet ministers are almost always elected members of Parliament.

Research these rules and others. Also worth considering are the changes made in the way Canada was governed despite legislation to the contrary. For example, French language rights were preserved despite several attempts to eliminate them.

Other points to consider:

• What are the two historical models of government that Canada has inherited? Which is dominant?
  

• Read the preamble to the Constitution Act, 1867. What do think are the implications of this text?
  

• How have major historical events affected the way Canada in governed?
  

• Do the sections, which set out powers of different levels of government in the Constitution Act, 1867, increase or decrease the influence of unwritten conventions?
  

• Does the Canadian Charter of Rights and Freedoms increase or decrease the influence of unwritten conventions? Note the "notwithstanding" clause.

Helpful hint: Try to anticipate the arguments of your opponents in the debate, and prepare counter-arguments in advance.

Group 2:
Written acts and statutes mainly shape The Constitution of Canada.

You must find evidence that support your argument that Canada's Constitution is mainly shaped by written rules. Important documents include:

• The Royal Proclamation, 1763
  URL: http://www.canadiana.org/cgi-bin/ECO/mtq?display=42695+0030
  

• The Québec Act, 1774
  URL: http://www.canadiana.org/cgi-bin/ECO/mtq?doc=48786
  

• The Constitutional Act, 1791
  URL: http://www.canadiana.org/cgi-bin/ECO/mtq?doc=21241
  

• The Act of Union, 1840
  URL: http://www.canadiana.org/cgi-bin/ECO/mtq?doc=9_01401
  

• The Constitution Act, 1867 (previously named the British North America Act, 1867)
  URL: http://www.canadiana.org/cgi-bin/ECO/mtq?doc=92338
  

• The Statute of Westminster, 1931
  URL: http://canada.justice.gc.ca/loireg/rapport/en/p1t17-1.html
  

• The Constitution Act, 1982 (including the Canadian Charter of Rights and Freedoms)
  URL: http://laws.justice.gc.ca/en/const/annex_e.html#VII

Some points to consider:

• What are the two historical models of government that Canada has inherited? Which is dominant?
  

• How has each major act listed above affected the way Canada is governed?
  

• What is the evolutionary trend of the Canadian Constitution?
  

• Do the sections, which set out powers of different levels of government in the Constitution Act, 1867, increase or decrease the influence of unwritten conventions?
  

• Does the Canadian Charter of Rights and Freedoms increase or decrease the influence of unwritten conventions?

Helpful hint: Try to anticipate the arguments of your opponents in the debate, and prepare counter-arguments in advance.

Group 3:
Judges

You must review both sides of the issue, although not to same depth as the debaters. As you review the sources, consider the following questions:

• What are the two historical models of government that Canada has inherited? Which is dominant?
  

• Read the preamble to the Constitution Act, 1867. What do think are the implications of this text?
  

• How has each major act affected the way Canada is governed?
  

• How have major historical events affected the way Canada in governed?
  

• Do the sections, which set out powers of different levels of government in the Constitution Act, 1867, increase or decrease the influence of unwritten conventions?
  

• Does the Canadian Charter of Rights and Freedoms increase or decrease the influence of unwritten conventions? Note the "notwithstanding" clause.
  

• What is the evolutionary trend of the Canadian Constitution?
  

Be prepared to assess each group's performance using the following criteria:

You may discuss and decide how to rate the debate (points, percent, win/lose, etc.) amongst yourselves, with your teacher, or with the class. You may also add criteria.