1)Sources and Nature of the Constitutiona.Constitutional Act 1867
i.British North American Act 1867(changed in 82’ to Constitutional Act 1867)ii.No amending clause in this actiii.No mention or system of responsible government ( the prime minster, the cabinet)
Constitutional Act 1982
(enacted through 1982 Canada Act)i.domestic amending formula was adopted
authority over Canada of the UK Parliament was terminated
Canada Act 1982
-a short statue of the UK Parliament which terminated the authority over Canada.iii.Part 7 General
The Supremacy Clause is 52(1)-
This makes it the supreme law of the country.
The Entrenchment clause- 52(3)-
This entrenched the Constitutions Act 1982 and makes it only amendable by the proscribed procedure.
Constitution of Canada’ “includes”– defined for first time in 1982 Const Act (s52):
The Canada Act 1982, including this Act (includes the Constitution Act 1982 Schedule B)
the Acts and orders referred to in the schedule - list of 30 Acts and orders (includes The Constitution Act 1867, itsamendments, the orders in council and statues admitting or creating new provinces and boundaries, and the statue of Westminster.
Statute of Westminister – conferred on Canada power to repeal or amend imperial statutes applying to Canada, but BNA Act excluded at Canada’s insistence (so Const wd be more difficult to amend)3.any amendments to any Act or order referred to in paragraph (a) or (b)
“Includes” in s 52(2) indicates that the word is not exhaustive.
Other unwritten principles
underlie text of Const Act
Secession Reference 
- 4 unwritten principles of Const
- democracy, federalism, constitutionalism,protection of minorities
. B/c of democracy, federalism - fed govt and other provinces would be under dutyto enter negotiations1.Reference by the federal government to the Supreme Court of Canada, in which the Court was askedwhether Quebec could secede unilaterally from Canada. Unilateral secession not possible -- Secessionwould require const’l amendmt in accordance with its procedures (but did not specify which one wouldapply).
SCC also stated:
a clear majority on a clear question of law
put to referendum in Quebec, would“confer legitimacy on demands for secession” and give rise to an
on all parties toConfederation to negotiate the required constitl changes. SCC also pointed out that the politicalramifications for failure to negotiate in good faith would include the defaulting govt’s legitimacyin the eyes of the international community would be undermined. ... b.Principle of Effectivity: If seceding govt achieved effective control of a territory and recognition by international commty the secession although unconstitutional would have to be recognizedeventually as a reality by Canada’s own Constl Law.
2.Clarity Act ( created after Succession Reference) Hogg 5.7(a)
Defines “clear” - s1–
if a province proposes a referendum on succession , the HoC is to consider the question and determine whether the question is “clear”. Whether clear depends on “thequestion would result in a clear result in clear expression of the will of the population of a province on whether the province should cease to be part of Canada and become an independentstate. “i.Act states question is unclear if “mere focus to negotiate” or envisages economic /politicalarrangement with Canada that obscures a direct expression of the will of the population of that province
– if q is clear, the Hof C has to determine if the majority is “clear”.i.The act does not define “clear”- requires HoC to take into acct size of majority, percentage of eligible voters who voted, and any other matters or circs