E. Legislative Power

Author:Patrick J. Monahan - Byron Shaw

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1) Legislative Power in Canada

The legislative function is the power to enact general rules that determine the structure and authority of the state, as well as the rights and obligations of individuals, both in relation to the state and as among one another. Since the Bill of Rights of 1688, English law has recognized that the exercise of legislative power requires a statute enacted by Parliament, and that the sovereign cannot legislate through the exercise of the royal prerogative. As discussed in Chapter 2, this same requirement was incorporated into the law of the British North American colonies with the establishment of legislative assemblies in each colony.

This principle was carried forward into the Constitution Act, 1867. The power to enact laws for Canada in areas of federal jurisdiction is vested in the Parliament of Canada, which is defined as consisting of the appointed Senate, the elected House of Commons, and the queen (section 17). In order to enact a law, a bill must be approved by both the House of Commons and the Senate, and be signed by the queen or her representative, the governor general. Within each province, laws in relation to areas of provincial jurisdiction may be enacted by the elected Legislative Assembly of the province and approved by the lieutenant governor. Although five provinces at one time had appointed upper chambers akin to the federal Senate, they have all been abolished.

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The British Parliament no longer has any authority to legislate for Canada. The Canada Act 1982 provides that no Act of the Parliament of the United Kingdom enacted after 17 April 1982 shall extend to Canada as part of its law.67Therefore, only Canadian political authorities and institutions have the power to enact laws for Canada.

2) Approval of the Governor General and the Lieutenant Governor

As a matter of strict law, neither the governor general nor the lieutenant governor is required to approve a bill that has been passed by the Senate and the House of Commons or by a provincial legislature. Section 55 of the Constitution Act, 1867 states that the governor general shall declare "either that he assents ... [to a bill] in the Queen’s Name, or that he withholds the Queen’s Assent, or that he reserves the Bill for the Signification of the Queen’s Pleasure."68The same provisions are made applicable to the lieutenant governors and permit the reservation of provincial bills for the approval of the Governor in Council (section 90). However, under the principles of responsible government, all of the Crown’s powers must be exercised on the advice of the elected prime minister and his or her Cabinet. Therefore, any bill that is approved by the elected legislative chamber must automatically be signed into law by the governor general. As for the power of the British government to disallow Canadian laws, an Imperial Conference in 1930 stated that the powers of reservation and disallowance of Canadian laws could no longer be used because they were inconsistent with Canadian sovereignty.69Thus, while they have not been formally repealed,70as a practical matter the

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sections of the Constitution Act, 1867 dealing with reservation and disallowance of Canadian laws by British authorities are now moribund.71

3) Parliamentary Supremacy and the Rule of Law

The principle of parliamentary supremacy, as developed in Great Britain, means that there are no legal limitations on the legislative competence of Parliament. A.V. Dicey, writing in the late nineteenth century, described the legislative supremacy of Parliament as "the right to make or unmake any law whatever; and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament."72According to Dicey’s formulation, courts must always give effect to the laws enacted by Parliament, no matter how unwise or unjust they might appear.

Although the preamble to the Constitution Act, 1867 states that Canada was to have a constitution similar in principle to that of the United Kingdom, the principle of parliamentary supremacy was modified in its application to Canada. The jurisdiction of both the Parliament of Canada and the provincial legislatures is defined and limited by the Constitution Act, 1867. The most obvious example of these limits are those associated with federalism - the power to enact laws is divided between Parliament and the provincial legislatures. The courts have always assumed that they have been entrusted with the function of deciding whether acts of Parliament or the legislatures fall within the limited jurisdictions specified in sections 91 and 92 of the Constitution Act, 1867. This judicial review function has been expressly confirmed in section 52 of the Constitution Act, 1982, which provides that any law

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that is inconsistent with the provisions of the Constitution of Canada is of no force and effect.

Prior to April 1982, the courts held that the doctrine of parliamentary supremacy applied in Canada, subject to the division of powers under sections 91 and 92 of the 1867 Act. For example, in the 1883 Hodge case,73the Privy Council stated that the provincial legislatures had authority as plenary and as ample within the limits prescribed by sect. 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament.74

In other words, as long as Parliament or the legislatures remained within the limits defined by sections 91 and 92 of the Constitution Act, 1867, they had the same supreme power possessed by the British Parliament. It was also sometimes said that the distribution of powers between Parliament and the provinces was exhaustive in the sense that the federal Parliament and the provincial legislatures possessed, among them, a totality of legislative power.

The constitutional changes in 1982 considerably modified the principle of parliamentary supremacy in Canada. The Canadian Charter of Rights and Freedoms requires the courts to strike down legislation on the basis that it infringes certain guaranteed rights. Furthermore, section 35 of the Constitution Act, 1982 provides that the Aboriginal and Treaty rights of Aboriginal peoples of Canada are recognized and affirmed. In light of these constitutional changes, it can no longer be said that the jurisdiction of Parliament or the legislatures is supreme. All laws, regardless of subject matter, are subject to review on the basis that they offend fundamental rights of individuals or groups under the Charter, or Aboriginal rights under the 1982 Act. Nor can it be said that the jurisdiction of Parliament and the provinces is exhaustive, since there are now many kinds of laws that cannot be enacted by either order of government. In this sense, the principle of constitutionalism and the rule of law - which requires that all actions of the state be authorized by law and consistent with constitutional requirements - has significantly narrowed the principle of parliamentary supremacy in Canada.

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4) The Senate
a) The Senate and the House of Commons Are Co-equal in Law

The Senate was the successor to the Legislative Councils that had been established in the British colonies at the time of granting of elected Legislative Assemblies. Its members are appointed until the age of seventy-five by the governor general.75In most cases, the legal powers and status of the Senate equal those of the House of Commons, despite the fact that Senators are appointed. In order for a bill to become law, it must be passed in identical terms by both the Senate and the House, and neither chamber has the power to override the veto of the other.76

Most bills can be introduced in either chamber, although virtually all government bills are introduced in the House of Commons.77As a practical matter, however, the Senate, which is an appointed body, lacks the legitimacy of the elected House of Commons. Therefore, for most of the twentieth century, the Senate tended to automatically approve bills that had been passed by the House of Commons. This tendency toward acquiescence has been reinforced by the fact that the prime minister controls the appointment of senators. Therefore, the party that controls the House of Commons has most often controlled a majority in the Senate.

b) Functions of the Senate

The drafters of the BNA Act intended the Senate to serve two main functions. First, the Senate was designed to represent regional interests. This is why the allocation of seats was on a regional basis, as opposed to representation by relative population: the maritime, Ontario, and Quebec regions were given equal representation in the original Senate.78Second, the Senate was intended to perform a role similar to that

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of the House of Lords in England, namely, to provide a "sober second thought" and technical review of legislation approved by the House of Commons. (Moreover, the Senate also protected propertied interests, since senators were required to be at least thirty years of age and to own property valued at a minimum of $4000 in the province they represented.79)

Overall, the Senate has failed to fulfil these original hopes and expectations. This is mainly because it is inconsistent with democratic principles for an appointed institution to override the wishes of the elected House of Commons. The Senate’s lack of legitimacy has been...

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