Writing Canada's Political Constitution

Canada’s constitution is legal and political. The legal component, which includes the Constitution Acts, 1867 and 1982, is more easily recognized and appreciated by lawyers, politicians, and the wider public. However, Canada’s political constitution is equally important. The political constitution is comprised of the non-legal rules and norms that underpin Canadian democracy and governmental accountability. Although the legal and political constitutions each form an essential part of Canadian constitutionalism, the written quality of the former tends to ensure its dominance over the latter.<br><br>This article argues that the time has come for Canada to codify its political constitution. In offering these arguments, we seek to move beyond the reasons scholars typically offer in favour of codifying the political aspects of the constitution, whether in a cabinet manual, ministerial code or other document. Calls to codify the political constitution have tended to intensify after events that raise questions about the application of a particular constitutional convention or conventions, or the propriety of the Prime Minister’s or another Minister’s actions. While this is understandable, viewing codification primarily as a solution to crisis and controversy falls short. Instead, we say that the process of committing the political constitution to writing would give political actors – parliamentarians, ministers, and senior parliamentary and government officials – an opportunity to reflect on the political rules and norms that govern Canada’s pluralistic, multinational federation at this point in its constitutional development. Our focus, then, is not on codification as a check on political actors, but as a vehicle to revitalize their roles and responsibilities as authors of the political constitution, an organic, evolving set of rules and norms that governs how our legislative and executive bodies operate. <br><br>The argument we advance, therefore, is twofold. First, producing a guide to the political constitution would give political actors an opportunity to articulate and define the political constitution. A cooperatively drafted and regularly updated guide would signal that political actors are committed to upholding an ever-evolving political constitution and resolving disagreements without recourse to third parties. Second, the process of writing the political constitution could be leveraged to modernise the political rules of the constitution in a broad sense. Although core constitutional conventions, such as confidence and cabinet solidarity, are well established and generally well understood by practitioners and scholars, contemporary Canadian political constitutionalism could better reflect the demands of federalism and intergovernmental relations, Parliament’s responsibilities with respect to Indigenous peoples and the Charter, and the balance of power between the executive and the legislature in areas ranging from democratic accountability to foreign affairs.