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Separation of Powers in Canada
Separationism and Parliamentarism
Canada's system of government is based on a
parliamentary model quite distinct from the presidential system operating
in the United States.
One of our leading constitutional writers said that Canada’s retention of
the British system of responsible government is “utterly inconsistent with
any separation of the executive and legislative functions;” (Hogg, Constitutional
Law of Canada, 1999 student ed., p. 321). While this is one important
view, it has never been approved by the Supreme Court of Canada. Indeed, the Supreme Court of Canada has
made passing reference to the doctrine of the separation of powers in
several cases, including Fraser v. P.S.S.R.B., [1985] 2
S.C.R. 455, 479 and Provincial Judges Reference, [1997] 3 S.C.R. 3
at para. 108. On occasion, the Court has used muscular language, as in Operation
Dismantle v. The Queen, [1985] 1 S.C.R. 441, 491 when the Court
referred to the doctrine as one of the “essential features of our
constitution”. In R. v. Power,
below, the separation of powers was actually harnessed by the court for use
as an operative doctrine to reinforce the independence of Crown Attorney
decisions as against judicial interference with prosecutorial decisions.
The “rule of law” is a highly textured expression [...] conveying, for
example, a sense of orderliness, of subjection to known legal rules and of
executive accountability to legal authority.
Because Canadian
parliamentary democracy increasingly trends towards power concentration in
the executive branch – a tendency that has disturbed many observers – it
may be time to reconsider the corrective role that could be played by the
separation of powers theory in Canadian constitutional doctrine.
Constitutional Convention, Branch Fusion and
the Democratic Deficit
First, we need to understand how it is that
parliamentary government fuses the legislative and the executive branches.
In a parliamentary system the executive springs from the legislature, is
part of it and is responsible to it as a confidence chamber.
The Lieutenant‑Governor
is part and parcel of the Legislature (B.N.A. Act, s. 71; the Legislature
Act, R.S.Q. 1977, c. L‑1, s. 1). He appoints members of the
Executive Council and Ministers (B.N.A. Act, s. 63; Executive
Power Act, R.S.Q. 1977, c. E‑18, ss. 3 to 5) and these,
according to constitutional principles of a customary nature referred to in
the preamble of the B.N.A. Act as well as in some statutory
provisions (Executive Power Act, R.S.Q. 1977, c. E‑18,
ss. 3 to 5, 7 and 11(1); Legislature Act, R.S.Q. 1977, c. L‑1,
s. 56(1)), must be or become members of the Legislature and are expected,
individually and collectively, to enjoy the confidence of its elected
branch. There is thus a considerable degree of integration between the
Legislature and the Government; (Blaikie v. A.G. Quebec (No. 2)
(1981), 123 D.L.R. (3d) 15 at 122 (S.C.C.)).
Although Blaikie dealt specifically with
the provincial executive power, the Court’s description applies equally to
the federal executive. The Court's observations in Blaikie are
interesting because the Court focuses on the institutions of parliamentary
government established by constitutional convention, particularly the
institutions of responsible government.
It is at the conventional level that integration between the
executive and legislative branches occurs.
Constitutional convention enhances integration
between the legislature and executive in two respects. First, the formal
executive, the Governor General, is controlled by responsible ministers of
the Crown, creatures unknown to the formal constitution. Second, the
legislature's powers and priorities are in practice controlled by other
executive instrumentalities unknown to the formal constitution – the PMO
(office of the Prime Minister), PCO (Privy Council Office) and Cabinet.
These institutions, particularly PMO and PCO, act as a clutch that meshes
the gears of formal constitutional institutions into the full force of
operating political power. Donald Savoie, Governing From the Centre: The
Concentration of Power in Canadian Politics (1999) describes the real
situation.
Central agencies stand at the apex of the
machinery of government.... they have a licence to roam wherever they wish
and to raise whatever issue they may choose; (p. 5) ... The prime minister
alone thus has access to virtually every lever of power in the federal
government, and when he put his mind to it he can get his way on almost any
issue; (p. 87).
In other words, the central agencies,
particularly PMO, PCO and, to a lesser extent, Cabinet, are the
conventional executive. It is the
conventional executive which in practice controls the legislature, and
which allows the writers to speak about the integration between the
executive and legislature.
The Queen of
Canada is our head of state, and under our Constitution she is represented
in most capacities within the federal sphere by the Governor General. The
Governor General's executive powers are of course exercised in accordance
with constitutional conventions. For example, after an election he asks the
appropriate party leader to form a government. Once a government is in
place, democratic principles dictate that the bulk of the Governor
General's powers be exercised in accordance with the wishes of the
leadership of that government, namely the Cabinet. So the true executive
power lies in the Cabinet. And since the Cabinet controls the government,
there is in practice a degree of overlap among the terms “government”,
“Cabinet” and “executive”. In these reasons, I have used all of these
terms, as one or another may be more appropriate in a given context. The
government has the power to introduce legislation in Parliament.
In practice, the
bulk of the new legislation is initiated by the government. By virtue of s.
54 of the Constitution Act, 1867, a money bill, including an
amendment to a money bill, can only be introduced by means of the
initiative of the government; (Reference Re Canada Assistance Plan,
[1991] 2 S.C.R. 525, per Sopinka, J.).
It is at the conventional level, not the formal
level or the text of the constitution, that the operation of Canada’s
constitution exhibits a high degree of integration between the executive
and legislative branches of government. At the conventional level, where
the constitution actually functions, it is accurate to say that Canadian
government is characterized by a high degree of control by the executive
over the legislative branch, particularly as contrasted with presidential
systems. It is perhaps this situation
that was in the mind of the Supreme Court of Canada when it
commented that “the Canadian Constitution does not insist on a strict
separation of powers;” (Reference Re Secession of Quebec, S.C.C.
Aug. 20, 1998, para 15).
It is also at the level of the operating
conventional constitution that the writers observe worrisome signals of a
deterioration in accountability and transparency of governmental processes
– what is commonly referred to as the democratic deficit. The democratic
deficit is enhanced by the extensive
use of executive federalism to coordinate the actions of the thirteen governments
in the federation. Executive federalism,
the negotiation of issues of the day between senior officials and
ministers, takes place behind closed doors; it is not visible. For this
reason Canadian governance tends to be unduly secretive, and lacking in
reliable structures of accountability.
Given the simultaneous growth of Canada’s
democratic deficit and the concentration of political power in somewhat
mysterious central agencies, it is not surprising that there should be a
renewed interest in the separation of powers. It is at root a concept
designed to guard against tyrannical concentrations of power and to protect
political liberty.
The Formal Constitution and Separationism
The conventional machinery that integrates the
executive and legislative branches in Canada obscures the very real
structural separation of powers that the text of the constitution ordains.
The Constitution Act, 1867 sets out separate and divided powers
that, at least textually and formally, has close parallels to
presidentialism. Blaikie drew attention to this. After describing the conventional
machinery which integrates the legislative and executive branches, the
Supreme Court went on to observe:
The Government
of the province is not a body of the Legislature's own creation. It has a
constitutional status and is not subordinate to the Legislature in the same
sense as other provincial legislative agencies established by the
Legislature (Blaikie v. A.G. Quebec (No. 2) (1981), 123
D.L.R. (3d) 15 at 122 (S.C.C.)).
It is useful to elaborate further on the Court’s
observations about formal separation and conventional integration. The Constitution Act, 1867
establishes executive power by ss. 9‑16. These
provisions vest the executive power in the Queen, and call for its
exercise by the Governor General and Privy Council. The Constitution
Act, 1867 establishes significant power in the executive branch,
including, by s. 15, the command of the armed forces. The Constitution Act, 1867
identifies and organizes separate constitutional status as well for the
legislature (sections 17‑52) and judiciary (sections 96‑101)
and specifies their respective powers and limits.
This is why it is accurate to say that, at least
textually and formally, the Constitution Act, 1867 has close
parallels to presidentialism. Although the realities of conventional
integration have made Canada’s
formal separation of powers little noticed, it is worth remembering that
within the text of the Constitution Act, 1867, powers are
formally and structurally separated, as we find in presidential systems.
This provides a textual basis for any court that in future decides to
improvise a separation of powers doctrine specific to Canada’s
parliamentary system.
It is also worth remembering that within the text
of the Constitution Act, 1867 the three branches of government are
connected functionally “as to give to each a constitutional control over
the others.” Parliament is invested with constitutional power to enact all
federal laws and to establish federal courts. Parliament is checked by the
power of the executive to call the House of Commons into session (s. 38)
and by the power of the judiciary to declare laws enacted unconstitutional.
Parliament is also checked by power in the executive to reserve Bills
passed by the Houses of Parliament and to disallow laws enacted (secs.
55-7). These veto-like powers,
designed for British control of Canadian law-making, have long since fallen
into disuse, but they still exist in the text and structure of the Constitution.
The Judicial branch has constitutional power to try all cases, to interpret
the laws in those cases and to declare any law or executive act
unconstitutional. The judiciary is checked by power in the executive to
appoint its members; by power in the legislature to enact amendments that
overturn judicial decisions, including many constitutional decisions (Charter
of Rights, s. 33); and also by the combined power of the executive and
legislative branches to remove judges.
The Constitution of Ceylon is drawn from the same
British colonial sources as the Constitution of Canada. It is interesting
to observe in that Constitution’s structure a closely similar formal
constitutional separation of powers.
It was this structural separation, which, setting out executive,
legislative and judicial powers in separate chapters that motivated the
Privy Council to find “an intention to secure in the judiciary a freedom
from political, legislative and executive control.” Because of that
intention their Lordships overturned special legislation that would have intruded the legislative power too deeply
into the judicial sphere ( Liyanage v. The Queen, [1967 1 A.C. 259).
Perhaps this ruling is further evidence that the separation of powers
doctrine is capable of more operational development in parliamentary systems,
including Canada. Indeed, there is some dicta in this case
which shapes Canada’s
important doctrine of judicial independence out of separationist language.
Constitutional Dialogue and the Separation of
Powers
Still, beyond protecting the independence of the
judiciary, it is unusual to conceive of the separation of powers doctrine
as an operative doctrine that controls any undue mixing of the three
branches in parliamentary systems of government. However, it has become
common in constitutional doctrine to conceive that the institutions of
government have proper roles to play in Canadian democracy. In carrying out their functions, each
branch should have proper regard and “mutual respect” for the role of the
other branches.
respect by the
courts for the legislature and executive role is as important as ensuring
that the other branches respect each others' role and the role of the
courts; (Vriend v. Alberta, [1998] 1 S.C.R. 493, para. 136).
In modern constitutional doctrine, the rise of
this mutual respect “gives rise to a more dynamic interaction among the
branches of government,” what is also called “a dialogue” between the
institutions of government.
In reviewing
legislative enactments and executive decisions to ensure constitutional
validity, the courts speak to the legislative and executive branches. ...
most of the legislation held not to pass constitutional muster has been
followed by new legislation designed to accomplish similar objectives ...
By doing this, the legislature responds to the courts; hence the dialogue
among the branches; (para. 138).
An important value of this mutual respect,
dynamic interaction and dialogue is that “each of the branches is made
somewhat accountable to the other.”
This dialogue
between and accountability of each of the branches have the effect of
enhancing the democratic process; (para. 139).
In Mills, this perspective of dynamic
interaction was applied to alter the normal suspicious posture reviewing
courts sometimes adopt with respect to legislative acts alleged to be
unconstitutional.
Courts do not hold a monopoly on the protection
and promotion of rights and freedoms; Parliament also plays a role in this
regard and is often able to act as a significant ally for vulnerable
groups.... If constitutional democracy is meant to ensure that due regard
is given to the voices of those vulnerable
to being overlooked by the majority, then this court has an
obligation to consider respectfully Parliament’s attempt to respond to such
voices; (R. v. Mills, [1993] 3 S.C.R. 668).
Dialogue and dynamic interaction may be newly
minted constitutional doctrine to explain to the citizenry why courts are sometimes
obliged to overturn policies enacted into law by the representative
branch. This is legitimacy theory,
consciously meant to blunt attack on the constitutional review function
repeatedly heard from the right and left.
It is interesting to note that this theory is wrapped in
separationism concepts. Is this
really part of the sculpting of a separation of powers theory appropriate
to parliamentary systems? To ask the
question in other terms, is there anything in this separation of powers
talk from the courts that can respond to the real problem that Canadian
governance confronts today – democratic deficits being rung up by the
fusing of political power in executive agencies?
Trend Lines
In the Provincial Judges
Reference, [1997] 3 S.C.R. 3 at para
139 the Supreme Court observed:
These different components of the institutional
financial security of the courts inhere, in my view, in a fundamental
principle of the Canadian Constitution, the separation of powers. As I
discussed above, the institutional independence of the courts is
inextricably bound up with the separation of powers, because in order to
guarantee that the courts can protect the Constitution, they must be
protected by a set of objective guarantees against intrusions by the
executive and legislative branches of government.
The separation of powers requires, at the very
least, that some functions must be exclusively reserved to particular
bodies: see Cooper, supra, at para. 13. However, there is
also another aspect of the separation of powers -- the notion that the
principle requires that the different branches of government only interact,
as much as possible, in particular ways. In other words, the relationships
between the different branches of government should have a particular character.
For example, there is a hierarchical relationship between the executive and
the legislature, whereby the executive must execute and implement the
policies which have been enacted by the legislature in statutory form: see Cooper,
supra, at paras. 23 and 24. In a system of responsible government,
once legislatures have made political decisions and embodied those
decisions in law, it is the constitutional duty of the executive to
implement those choices.
What is at issue here is the character of the
relationships between the legislature and the executive on the one hand,
and the judiciary on the other. These relationships should be depoliticized.
When I say that those relationships are depoliticized, I do not mean to
deny that they are political in the sense that court decisions (both
constitutional and non-constitutional) often have political implications,
and that the statutes which courts adjudicate upon emerge from the
political process. What I mean instead is the legislature and executive cannot,
and cannot appear to, exert political pressure on the judiciary, and
conversely, that members of the judiciary should exercise reserve in
speaking out publicly on issues of general public policy that are or have
the potential to come before the courts, that are the subject of political
debate, and which do not relate to the proper administration of justice.
To be sure, the depoliticization of the
relationships between the legislature and the executive on the one hand,
and the judiciary on the other, is largely governed by convention. And as I
said in Cooper, supra, at para. 22, the conventions of the
British Constitution do not have the force of law in Canada:
Reference re Resolution to Amend the Constitution, supra.
However, to my mind, the depoliticization of these relationships is so
fundamental to the separation of powers, and hence to the Canadian
Constitution, that the provisions of the Constitution, such as s. 11(d)
of the Charter, must be interpreted in such a manner as to protect
this principle.
This is a more developed idea of the role of the
courts as resolver of disputes, interpreter of the law and defender of the
Constitution that the Supreme Court explained earlier. In R. v. Beauregard, [1986]
2 S.C.R. 56, 73 the Court required that as a result of these functions, the
courts be completely separate in authority and function from all
other participants in the justice system.
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