C. Key Characteristics of the Canadian Constitution
| Author | Patrick J. Monahan - Byron Shaw |
| Pages | 10-21 |
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Canada has a federal constitution. In a federal system, sovereignty is divided between two orders of government, with each level of government being restricted to the areas of jurisdiction assigned to it, and neither being able to control or direct the activities of the other.16Further, in a federal system, the distribution of powers between the national and local governments is exhaustive, in the sense that there are no fields of jurisdiction that are not distributed to either the federal or the local level of government. Federalism requires an independent judiciary to police the distribution of powers and to ensure that neither level of government exceeds the powers allocated to it under the constitution.
The federal system of government can be distinguished from both a unitary and confederal system. In a unitary state, such as France, undivided sovereignty is conferred on the national government. Although local governments might be established within a unitary system, they are creatures or delegates of the national government, which defines their powers. Only the national government is a constitutionally recognized order of government. In a confederation, by contrast, ultimate sovereignty is retained by the member states, which delegate powers or jurisdiction to a central decision-making authority. The central decision-making authority has the power to make decisions, but it cannot enforce those decisions directly. Instead, enforcement depends on the willingness of the member states to comply voluntarily. The European
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Community (now Union) in the 1970s and 1980s was an example of a confederal system, although recent reforms have strengthened the central institutions and moved the Union in the direction of a federal system.
In Canada, the Constitution Act, 1867 centralized powers in the national government to such a degree that certain commentators described the original constitution as "quasi-federal."17For example, the federal government was given the power to disallow or annul any provincial law within two years of its enactment. The federal government was also given the power to appoint the lieutenant governors of the provinces, and the provincial lieutenant governor could "reserve" any bill passed by the legislature for the approval of the federal government; if there was no approval within two years of the bill’s enactment, the bill would have no force or effect. The federal government was also given the power to pass "remedial laws" in the field of education to protect religious minorities from provincial legislation that might interfere with their rights. The federal government had a status akin to a constitutional "police officer," assuming a supervisory role in relation to the provinces, similar to that of Great Britain in relation to the federal government itself.
As discussed in Chapters 4 and 7, Canadian federalism has evolved in a manner quite different from that envisaged by the drafters of the Constitution Act, 1867. Most of the centralizing features of the Act, such as the powers of reservation and disallowance, have fallen into disuse. While these powers remain part of the written constitution, there is an overwhelming consensus that their use under any circumstances would be inappropriate and potentially inconsistent with the unwritten principles that underpin the Canadian constitutional order.18As a practical matter, therefore, these powers can no longer be exercised. Moreover, the courts have interpreted the distribution of powers between the federal and provincial governments so as to favour the expansion of provincial jurisdiction and to limit federal jurisdiction. Canada today is generally regarded as having one of the more decentralized systems of federalism in the world. Ironically, the U.S., which by its Constitution has a relatively decentralized federal system, is much more centralized
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than Canada. This contrast emphasizes the fact that the formal terms of a country’s constitution do not necessarily determine its constitutional development.
Constitutional theory traditionally distinguishes between a monarchical and a republican system of government. Under a monarchical system, supreme power resides in the Crown. Under a republican system, supreme power resides in the people, who govern through elected representatives. Canada, like the U.K., is a hereditary monarchy, with the monarch inheriting the office of head of state.19The U.S. is a republic, with an elected president serving as head of state.
Although the monarch - at present, a queen - is Canada’s formal head of state, all her powers and responsibilities with respect to Canada have been transferred to the governor general, the queen’s personal representative in Canada.20The queen, therefore, does not take any active role in the day-to-day administration of Canadian affairs. She does, however, appoint the governor general on the advice of the Canadian prime minister. The governor general has the same constitutional role in Canada as the queen has in England: that is, the governor general has extensive legal powers under the Canadian constitution derived from both statute and common law. For a bill to be passed by the Senate and House of Commons to become law, it must be signed by the governor general. The governor general also appoints the prime minister and members of the Cabinet, senators, superior court judges, and the lieutenant governors of the provinces. However, under the doctrine of responsible government, all the powers of the governor general are to be exercised on the basis of the advice and consent of the prime minister and the Cabinet. Further, the prime minister and the Cabinet members are entitled to hold office and act as the government only as long as they enjoy the confidence of the elected House of Commons.
The doctrine of responsible government removes most of the discretionary power of the governor general since, on the vast majority of
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matters calling for his or her decision or action, the governor general is bound to follow the advice of elected ministers. There are certain residual powers possessed by the governor general that permit him to exercise some measure of personal discretion, rather than simply following the advice of the prime minister. These residual powers, however, are exercisable only in certain exceptional or unusual circumstances, as discussed in Chapter 3. As a practical matter, therefore, neither the queen nor the governor general governs the country personally on a day-to-day basis. Instead, government is carried on in the name of the queen by accountable officials. Thus, references to "the Crown" or to "the government" do not refer to the sovereign or to the governor general personally but to the institutions and officials who act collectively on the queen’s behalf and in her name.
It is because of the doctrine of responsible government that Canada is able to function as a modern democracy while retaining a hereditary monarch as its head of state. Since the powers of the Crown are strictly regulated and controlled by the conventions of responsible government, it would be misleading to draw too sharp a contrast between the monarchical form of government as it exists in practice in Canada and the republican form of government in the U.S. In both countries, the state is subject to the control and direction of elected officials who are accountable to the people.21As we have noted, the principles of responsible government are not part of the formal written constitution, the "supreme law of Canada." Instead, the principles of responsible government are constitutional conventions or rules of political behaviour that are not legally enforceable. Their continued acceptance and effectiveness depend on the willingness of the governor general and the members of the government to abide by them, as well as on the insistence of the Canadian public that they do so. Yet...
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