D. Executive Power in the Constitution Act, 1867

Author:Patrick J. Monahan - Byron Shaw

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1) The Queen and the Governor General

Under a constitution, the executive is generally responsible for implementing and administering laws, maintaining public order, conducting military operations, directing foreign policy, and managing state property. Many constitutions also grant the head of the executive branch the right to approve laws that have been drafted by the legislature.

Part II of the Constitution Act, 1867 defines the nature of executive power in Canada. Section 9 states that executive power over Canada "is hereby declared to continue and be vested in the Queen." The drafters of the Act simply assumed that the queen would remain Canada’s head of state, given Canada’s continued colonial relationship with Britain at that time.

In the early twenty-first century, how is the queen’s position as head of state compatible with Canada’s status as an independent country? The answer to this question lies in the fact that the queen’s role in Canadian affairs today is entirely ceremonial and symbolic. Most of the queen’s legal powers in relation to Canada have been delegated to the governor general, pursuant to letters patent issued by the Crown in 1947.4The main legal function still performed by the queen in relation to Canada at the present time is the appointment of a governor general.5

But this appointment is always made on the advice of the Canadian

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prime minister, in accordance with the principles of responsible government. The queen herself does not exercise any independent role or discretion in the appointment of a governor general, or in any other aspect of Canadian affairs.

Section 10 of the Constitution Act, 1867 states that, where provisions of the Act refer to the office of the governor general, the reference is intended to apply to the chief executive office or the administrator who is, from time to time, "carrying on the Government of Canada on behalf and in the Name of the Queen." As with section 9, section 10 does not define or create an office or power. Instead, it is merely a provision that defines the manner in which the term "governor general" is to be interpreted elsewhere in the Act. The office of governor general for Canada was actually constituted under letters patent issued by the Crown under the royal prerogative to the first governor general, Viscount Monk, in 1867. The queen normally appoints a governor general for a term of five years, although appointments have on occasion been extended to seven years. In the event of death, incapacity, or removal of the governor general, the chief justice of the Supreme Court of Canada acts as the administrator and may carry out all the duties of the office. Since 1952, with the appointment of Vincent Massey, all governors general have been Canadian. It has also become customary to alternate the position between English- and French-speaking Canadians. The first woman to be appointed governor general was Jeanne Sauvé in 1984.

2) The Crown

As discussed above, section 10 of the Constitution Act, 1867 refers to the government being carried out "on behalf and in the Name of the Queen." This section effectively acknowledges that the queen is not expected to govern personally. Rather, government is to be carried on by others who act in her name and with her authority. Although section 10 refers only to the governor general, it is obvious that the governor general is not the only individual who acts on behalf of and in the name of the queen. The prime minister and the ministers of the Cabinet, although not named anywhere in the Constitution Act, 1867, also take their actions and decisions in the name of the queen. So do all the members, branches, or organs of the executive, which include government departments, the civil service, the armed forces, and the police. When lawyers refer to "the Crown," they refer in a collective sense to all these persons who act on behalf of the queen and in her name. The Crown is generally seen as synonymous with "the government" or "the executive," and each organ of government is regarded, in law, as being part

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of one indivisible Crown.6It is customary to refer to "the sovereign" in matters concerning the personal conduct or affairs of the monarch, and to "the Crown" as the collective entity that in law stands for the government.

3) The Powers of the Crown

The Constitution Act, 1867 does not purport to provide an exhaustive enumeration of the powers of the queen or the governor general. Nor are the powers of the Crown exhaustively catalogued in any other statute or legal enactment. Therefore, it is difficult to offer a precise definition of the exact nature and scope of the powers of the Crown. However, it is widely accepted that the powers of the Crown are derived from two sources, statute and common law.

Statutory powers of the Crown are those defined or created by an Act of Parliament. In the Canadian context, the most obvious example of a statute conferring powers on the Crown is the Constitution Act, 1867, which confers sweeping powers on the governor general. These powers include the right to appoint senators, superior court judges, and the lieutenant governors of the provinces (sections 24, 96, and 58); the power to summon and dissolve the House of Commons (sections 38 and 50); the exclusive right to recommend money bills (section 54); and the right to assent to legislation, to refuse assent, or to reserve a bill for consideration of the Queen-in-Council in Britain (sections 55-57). Aside from the Constitution Act, 1867 - which, as a constitutional statute, can be regarded as falling within a special category - it is commonplace for ordinary statutes to delegate powers to the "Governor General in Council." The Governor General in Council is the governor general acting with the advice of the Queen’s Privy Council, which effectively means the Cabinet. Such grants of delegated authority are so common that today the vast majority of powers of the Crown are derived from statute.

The Crown also derives powers from the common law. The common law powers of the Crown, also known as the prerogative, are based on the inherent powers of the monarch dating back to the Middle Ages. At that time, the sovereign claimed absolute power to govern without resort to Parliament, including the power to enact laws and to enforce them. Gradually, however, these prerogative powers were narrowed and limited. For example, it was authoritatively established by the time of

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the Bill of Rights of 1688 that the king could not enact laws, create of-fences, or raise taxes through the exercise of the prerogative. Only a statute enacted by Parliament could effect such changes in law. The courts have also declared on various occasions that the sovereign cannot interfere with an individual’s legal rights, such as rights of contract and property, through the exercise of the prerogative.

The Crown prerogative is subject to statute. If a statute narrows or eliminates a prerogative power, the limitations are binding on the Crown. A.V. Dicey described the prerogative as "the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown."7He used the term "residue" because Parliament can take away any prerogative and has frequently done so. For example, at common law, the Crown was immune from being sued in tort. This immunity has been abolished by Parliament and the provincial legislatures.8

Although the prerogative powers of the Crown have been vastly narrowed over time, they remain significant and real. The main areas in which the Crown prerogative has survived and remains relevant today include the following:9· Powers relating to the legislature: The Crown summons, prorogues, and dissolves Parliament pursuant to the prerogative, these powers having been confirmed in the Constitution Act, 1867. The appointment of the prime minister and the Cabinet are also derived from the prerogative.

· Powers relating to foreign affairs: The conduct of foreign affairs by government is carried on mainly by reliance on the prerogative, including the making of treaties, appointment of ambassadors, issuing of passports, and declarations of war and peace.

· Powers relating to the armed forces: The queen is commander-in-chief of the armed forces both by virtue of the prerogative and through section 15 of the Constitution Act, 1867.

· Appointments and honours: The sovereign is the "fountain of honour" and may grant honours or awards based on the prerogative.

· Immunities and privileges: The Crown enjoys certain privileges and immunities, such as the common law rule that statutes do not bind

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the Crown except by express statement or necessary implication. Although many of these immunities have been narrowed or eliminated by statute, a number of them continue to exist and their ultimate source is the prerogative power of the Crown.

· The "emergency" prerogative: Certain cases have held that the Crown enjoys the right to take actions in an emergency that are necessary in order to defend the sovereignty of the country.10While this catalogue of the prerogative powers of the Crown may at first glance seem impressive, it is important to remember that many of the matters listed above are now regulated by statute. For example, the National Defence Act11regulates most aspects of the government’s powers in relation to the armed forces; the legal immunities and privileges of the Crown...

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