Sources and Nature of the Constitution
What counts as constitutional law
The Constitution of Canada is not a single document. Section 52(2) of the Constitution Act, 1982 defines the Constitution as the Act itself, the Constitution Act, 1867, the amendments referred to in the Schedule, and any other amendment. Section 52(1) makes it supreme law, so inconsistent legislation is of no force or effect. Understand the four classic sources: the Imperial statutes (1867 and its amendments), the constitutional statutes of the 1982 package including the Charter, unwritten principles, and constitutional conventions. The preamble to the 1867 Act imports a commitment to "a Constitution similar in Principle to that of the United Kingdom," which the courts use to justify parliamentary privilege, judicial independence, and the existence of unwritten constraints.
Written versus unwritten
The Reference re Secession of Quebec recognized four underlying principles: federalism, democracy, constitutionalism and the rule of law, and respect for minorities. These principles are not free-standing sources of power; they are interpretive aids that can fill gaps and, in rare cases, invalidate conduct. Conventions are political rules enforced politically, not by courts as legal rules. Distinguish them from laws: a breach of convention is a political, not a judicial, failure.
Traps in questions
Candidates often miscategorize conventions as justiciable, treat the Charter as the only entrenched instrument, or forget that the 1982 Act entrenched both the Charter and the amending formulas. Another trap is assuming entrenchment is total; section 33 permits legislative override of certain rights.
Worked example
If a question asks whether a provincial bill that contradicts a constitutional convention is invalid, the answer is no on that ground alone: conventions are not laws. But if the bill offends an entrenched provision, section 52(1) applies.