[smnrchrds]

Canada's constitution has written and unwritten parts. The Constitution Act of 1982 (which includes the Charter of Rights and Freedoms), for example, is a written part of Canada's constitution. Changing the charter would require the procedure for constitutional change, which is rather difficult. It's not something that can be amended like a normal act of the parliament.

[light_hue_1]

That's fair. I was using the term "written constitution" from the perspective of a US reader.

There's no document that says "I'm the constitution, that's it".

Canada works under the idea of an open constitution. There's a collection of documents that become entrenched and are considered part of the constitution. There are endless debates about exactly which documents should be considered.

Since the amending formula has made changes impossible, basically all we can do is hope the Court will expand the constitution in a way that serves the public.

It's unclear that we really wanted to give the Supreme Court this power. And some argue that this makes the Canadian Supreme Court the most powerful one in the world. Certainly not even the US Supreme Court can decide the contents of the Constitution, only its interpretation.

And that's before we get to Quebec and their crazy theory about what section 45 means which would make the whole idea of a constitution a mess.

And of course, we're not going to mention the notwithstanding clause.

[bawolff]

> There's no document that says "I'm the constitution, that's it".

Umm section 52(2) of the constitution act? I mean,i guess that is not exhaustive, but its most of it.

> There are endless debates about exactly which documents should be considered.

I think you are significantly overstating that. There is some debate, but its mostly theoretical and rarely comes up in practise.

> Since the amending formula has made changes impossible

Its not easy but its not that hard, just nobody agrees on anything. The process for ammending the canadian constitution is roughly the hard as the american one (except for stuff to do with the monarch). Americans need 75% of states, we need 70% of provinces which must contain 50% of the population. Basically the same.

> And of course, we're not going to mention the notwithstanding clause.

What about it? I might personally not like it, but i don't see how it confuses anything in the constitution.

[nucleardog]

For those that aren't up on their Canadian law and wondering what the "notwithstanding clause" is--

The notwithstanding clause allows a government to make a law "notwithstanding" parts of our Charter of Rights and Freedoms.

The only thing it would take for the federal government to remove the freedom of the press is to pass a law explicitly declaring it it is being removed notwithstanding section 2 of the Canadian Charter of Rights and Freedoms. That law now does not violate the Charter, however it is time limited to 5 years, which is the maximum length that parliament can remain in power without an election at which point it would need to be renewed.

The main things that cannot be overridden this way are our right to vote, that legislative assemblies must be re-elected at most every five years, that legislatures must sit every year, and that we have the right to move within or enter and leave Canada.

The original idea was that this provided a balance against the judiciary. Even if the court were to declare something violated our rights, the legislature could just say "okay, we acknowledge that and pass it anyway". The primary balance against this being abused is simply that it would be unprecedented and everyone's scared to touch the "nuclear" button. The federal government has never invoked this clause.

The only reason I can see to "not mention the notwithstanding clause" is because it directly contradicts the idea of the Canadian Supreme Court being the most powerful in the world. Except in a handful of very specific situations, their power is to declare something unconstitutional or against our rights at which point the legislature can simply shout "NO U" and it's in force anyway.

[bawolff]

> The only thing it would take for the federal government to remove the freedom of the press is to pass a law explicitly declaring it it is being removed notwithstanding section 2 of the Canadian Charter of Rights and Freedoms

IANAL and not sure how the implied bill of rights works in the modern context, but historically laws restricting the freedom of the press have been struck down even without the charter

E.g. https://en.wikipedia.org/wiki/Reference_Re_Alberta_Statutes

However, The main thing i was trying to say though was simply that the rules around the notwithstanding clause are really clear. I think the original poster was trying to say is that what is constitutional can be ambigious, but the notwithstanding clause doesn't really contribute to that as it is pretty unambigious in how it works.