Constitutional Basis for Canadian Democracy: An Overview

• Author: Craig Forcese/Aaron Freeman
• Pages: 9-74

Constitutional

Basis

for

Canadian

Democracy:

An

Overview

The

Constitution

is the

starting point

in a

discussion

of the

legal founda-

tions

of

Canadian democracy.

The

Constitution establishes

the

basic

frame-

work

of

political governance

in

Canada

and

sets

the

parameters within

which that governance

must

operate. Napoleon Bonaparte once said that

a

constitution "should

be

short

and

obscure."1

The

Canadian Constitution

meets Napoleon

halfway:

it is not

short,

but it

certainly

is

obscure.

By the

express

terms

of the

Constitution Act,

1982,

the

Constitution "includes"

three categories of instruments: first, the Canada Act, 1982, which contains

the

Constitution

Act,

1982

(which

in

turn includes

the

Canadian

Charter

of

Rights

and

Freedoms);

second, thirty imperial

or

Canadian statutes

and

orders (such

as the

Constitution

Act,

1867)

set out by

schedule

to the

Consti-

tution

Act, 1982;

and

third, amendments

to any of

these

instruments

(of

which there

are

presently

eight).2

If

that were

the end of the

story,

a

full

understanding

of

Canadian con-

stitutional

law

would require some cutting

and

pasting

but

would other-

Napoleon

Bonaparte

(1769-1821)

at

Conference

of

Swiss

Deputies,

29

Jan.

1803.

See

Peter Hogg,

Constitutional

Law

of

Canada,

looseleaf

ed.

(Toronto:

Carswell,

2003)

at

1-7.

See

also

s. 52 of the

Constitution

Act,

1982

defining

the

Constitution

of

Canada

as

including "(a)

the

Canada

Act, 1982, including this Act;

(b) the

Acts

and

orders

referred

to in the

schedule;

and

(c)

any

amendment

to any Act or

order referred

to in

paragraph

(a) or

(b)."

2

9

i

2

io

THE

LAWS

OF

GOVERNMENT

wise

be

reasonably straightforward,

and

this book would

be

brief.

Howev-

er,

much

of

what

we

recognize

as

democracy

is not

entrenched

in

these

documents. Instead,

it flows

from

other sources,

the

constitutional status

of

which

has

been readily

affirmed

by

political practice

and in the

jurispru-

dence

of the

Supreme Court

of

Canada.

This chapter considers,

first,

the

extent

to

which democracy

is

consti-

tutionally entrenched

in

Canada's written Constitution. Second,

we

look

at

democracy

as an

unwritten constitutional "principle" supported

by

unwrit-

ten

constitutional "conventions."

In the

course

of

this

discussion,

we

intro-

duce, discuss

and

sometimes critique some

of the

weightiest issues

in

Canadian democracy: parliamentary supremacy,

responsible

government,

the

rule

of

law,

and the

separation

of

powers among

the

legislative, execu-

tive

and

judicial branches

of

government.

A.

DEMOCRACY

IN

CANADA'S

WRITTEN CONSTITUTION

A

discussion

of

democracy

and

Canada's Constitution begins with

the

Con-

stitution

Act, 1867

(hereafter

referred

to as the

1867

Act). Known

as the

British

North

America

Act3

until

1982,

the

1867

Act is the

statute

of the

Unit-

ed

Kingdom Imperial Parliament creating

a

federal union

of

British North

American

colonies.

As

such,

it is an

instrument concerned largely with par-

titioning jurisdiction between

the

federal

government

and the

provinces,4

a

"division

of

powers" that preoccupies Canadian democracy

to

this

day.

However,

the

1867

Act

also defines Canada's

key

political institutions.

Thus,

the

"Executive Government"

is

vested

in the

Queen,5

with many

of

the

Queen's powers

to be

exercised

by the

Governor General, pursuant

to

the

1867

Act

itself5

or by

reason

of the

1947

Letters Patent issued

by

George

VI.7

By

express reference

in the

1867

Act,

the

Governor General's respon-

3

1867,

30-31

Viet.,

c. 3

(U.K.).

4

Constitution

Act,

1867,

ss.

91

and

92.

5

Ibid.,

s. 9.

6

Ibid.,

s.

io.

7 C.

Gaz.

1947.1.3104,

vol.

81,

available

also

at

www.solon.org/Constitutions/Canada/English/LettersPatent.html.

The

Letters

Patent

empower

the

Governor

General

"to

exercise

all

powers

and

authorities

lawfully

belonging

to Us in

respect

of

Canada"

(at

para.

II),

including

the

Crown's

royal

pre-

rogative

powers discussed later

in the

chapter.

See

also

the

discussion

in

Black

v.

Canada

(Prime

Minister)

(2001),

54

O.R.

(3d)

215

at

para.

31

(C.A.).

There

are two

pow-

ers

not

delegated

by the

Letters

Patent:

the

power

to

appoint

or

dismiss

the

Governor

General

and,

arguably,

the

power

to

appoint

additional

senators,

expanding

the

senate

pursuant

to s. 26 of the

1867

Act.

See

Hogg,

Constitutional

Law at

9-5.

Constitutional

Basis

for

Canadian

Democracy:

An

Overview

n

sibilities include

the

appointment

of a

"Queen's

Privy

Council

for

Cana-

da,"8

a

body

to

"aid

and

advise

in the

Government

of

Canada."9

The

Gover-

nor

General

is

also empowered

to

endorse

(or

not)

a

bill

of

Parliament,

by

giving

or

refusing

the

royal

assent.10

Alternatively,

the

Governor General

may

reserve this assent

for the

Queen

"in

Council," which

then

has the

dis-

cretion

to

accord that

approval."

Meanwhile,

the

"Parliament

of

Canada" consists

"of the

Queen,

an

Upper

House styled

the

senate,

and the

House

of

Commons."12

The Act

anticipates

the

appointment

of

senators

by the

Governor General

and the

popular

election

of

members

of the

House

of

Commons,13

thus

creating

only

a

partly democratic legislative branch.

These "pseudo-democratic"

1867

Act

provisions

are

enhanced

by the

Constitution

Act,

1982

(1982

Act),

via the

Canadian

Charter

of

Rights

and

Freedoms

(Charter).14

Section

3 of the

Charter,

discussed

at

length

in

chapter

3,

provides that

"[ejvery

citizen

of

Canada

has the

right

to

vote

in an

elec-

tion

of

members

of the

House

of

Commons

or of a

legislative assembly

and

to

be

qualified

for

membership therein." Moreover, there

is

little risk

in

Canada

of a

"long Parliament."

The

1867

Act

limits

the

duration

of a

Com-

mons

to

five

years,15

as

does

the

Charter.16

The

Charter

also provides that

"[tjhere

shall

be a

sitting

of

Parliament

and of

each legislature

at

least once

every

twelve

months."17

Both

the

1867

and

1982

Acts

are

silent, however,

on

what,

if

any, roles

parliamentarians

play

in

executive governance. They

do not

expressly antic-

ipate

a

"Cabinet" comprising ministers

who are

also parliamentarians.

They

fail

to

acknowledge even

the

existence

of

ministers

as the

legal heads

of

government departments.

In

other words,

no

mention

is

made

of

"responsible government"

— the

notion that

the

executive branch should

be

rendered accountable

to an

elected legislature

by

requiring that those

who

run the

executive also

sit in

Parliament. Indeed,

the

1867

Act

suggests

8

Constitution

Act,

i86j,

s.

n.

9

Ibid.

10

Ibid.,

s. 55.

11

Ibid.,

ss. 55 and 57.

12

Ibid.,

s.

17.

13

Ibid.,

ss. 24 and 37.

14

Enacted

as

Schedule

B to the

Canada

Act,

1982,

(U.K.)

1982,

c.

n.

15

Constitution

Act, 1867,

s. 50.

16

Canadian

Charter

of

Rights

and

Freedoms

(Charter),

subs.

4(1).

As

discussed

in

more

detail

in ch.

10,

this

five-year

limitation

may be

suspended

"in

time

of

real

or

appre-

hended

war, invasion

or

insurrection."

Subs.

4(2).

17

Charter,

s. 5.