Parliament and the Legislative Process

AuthorCraig Forcese - Aaron Freeman
Pages292-348
292
5
Parliament and the
Legislative Process
Beginning with this chapter, we shift emphasis. Instead of focusing on the
means by which off‌icials in our democratic government are selected, as we
did in our f‌irst four chapters, we examine rules and procedures for ensuring
that, once selected, these off‌icials govern democratically.
When many Canadians think of democratic governance, they imagine
f‌irst the role of elected legislatures in passing Acts of Parliament. Indeed,
the legislative process lies at the heart of what Parliament does. It is there-
fore a principal (though far from the exclusive) responsibility of Canada’s
elected members of Parliament. Yet, a substantial amount of law is enacted
not by the legislature, but by the executive in the form of “delegated legisla-
tion,” usually regulations. Legislating is, in other words, a joint executive–
legislative branch enterprise.
Running through this chapter is one of our key themes: the relation-
ship or tension between the executive and legislative branches of
government. We f‌irst explore the parliamentary legislative function, high-
lighting the institutional and legal context in which it operates. We then
turn our attention to executive branch law-making, an area much richer in
truly legal considerations.
A. THE PARLIAMENTARY LEGISLATIVE ENTERPRISE
In this work, we will not canvass the complex and lengthy rules of procedure
that govern the minutiae of parliamentary law-making there are already
Parliament and the Legislative Process 293
many comprehensive, technical resources in this area.1 Instead, we do two
things. First, we provide an overview of the Parliament of Canada, discuss-
ing its workings and some of its key actors. These sections inform not only
the law-making roles of Parliament, but also its other functions, discussed
in Chapter 6. Second, we provide a succinct overview of the legislative pro-
cess. Our focus throughout this discussion is on the House of Commons,
though we raise issues related to the senate from time to time.
1. Overview of the Parliament of Canada
By the express terms of the Constitution Act, 1867, the “Parliament of Cana da”
consists “of the Queen, an Upper House styled the Senate, and the House
of Commons.”2
The most important and democratically legitimate — of these actors
is the Commons, composed of elected members of Parliament. As material
in Appendix 1 demonstrates, the vast majority of parliamentary legislation
originates in the Commons.3
a) Summoning, Prorogation, and Dissolution of Parliament
The Constitution anticipates the existence of, and extends certain guaran-
tees to, the House of Commons. The Constitution Act, 1867 empowers the
Governor General “from Time to Time, in the Queen’s Name, by Instrument
under the Great Seal of Canada, [to] summon and call together the House of
1 See, for example, Robert Marleau & Camille Montpetit, House of Commons Procedure
and Practice (Ottawa: House of Commons, 2000) [Marleau & Montpetit, Commons
Procedure and Practice]; Audrey O’Brien & Marc Bosc, House of Commons Procedure and
Practice, 2d ed. (Ottawa: House of Commons, 2009), available online at www2.parl.
gc.ca/procedure-book-livre/Document.aspx?sbdid=7C730F1D-E10B-4DFC-863A-83E7E
1A6940E&sbpidx=1&Language=E&Mode=1; Canada, House of Commons, Beauchesne’s
Rules and Forms of the House of Commons of Canada, 6th ed. (Toronto: Carswell, 1989)
[Commons, Beauchesne’s Rules]; Canada, House of Commons, Précis of Procedure (2003)
[Commons, Précis of Procedure], recently replaced by the online Compendium — House
of Commons, Procedure Online, www.parl.gc.ca/compendium/web-content/c_a_index-e.
htm; Library of Parliament, The Legislative Process, BP-151E (1989).
2 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 17, reprinted in R.S.C. 1985, App. II,
No. 5.
3 Indeed, over time the senate is becoming less and less important as a source of legisla-
tion. The senate is not, however, an inert legislative body. In recent Parliaments, the
senate has amended a modest, but increasing proportion of bills, as measured as a
percentage of all bills in each Parliament receiving royal assent. For an overview (and
strong defence) of the senate’s role in Canadian governance, see Serge Joyal, ed.,
Protecting Canadian Democracy: The Senate You Never Knew (Kingston: McGill-Queen’s
University Press, 2003).
LAWS OF GOVERNMENT294
Commons.4 This power is greatly constrained by convention and now, the
Canadian Charter of Rights and Freedoms.
Summoning and Prorogation of Parliament
By convention, the Governor General exercises his or her authority to call
Parliament to session on the advice of the prime minister.5 This convention
is codif‌ied in the Writ of Election, enacted in the Canada Elections Act. This
writ empowers the monarch (and thus the Governor General) to set the date
for a new Parliament “by and with the advice” of the prime minister.6
Once summoned, a given Parliament is generally divided into several
sessions, each separated by a prorogation. A prorogation is again the pre-
rogative of the Governor General, acting on the advice of the prime min-
ister.7 A prorogation (or a dissolution of Parliament, pending an election)
may not, however, endure indef‌initely. The Charter specif‌ies that Parliament
must sit at least once every twelve months.8
Whether a Governor General has the power to refuse a prorogation re-
quested by the prime minister was a matter of some importance in 2008,
during what might be labelled the “prorogation crisis.” In a nutshell, the
opposition political parties were galvanized in late 2008 by (depending on
who you believe) the Conservative government’s apparent indifference to
an emerging global economic crisis or its proposal to eliminate part of the
political party subsidies described in Chapter 3 (the most signif‌icant effect
of which would have been felt by the relatively cash-poor opposition parties
and not the Conservatives). The opposition parties proposed something of
an ad hoc coalition and combined to table a motion of non-conf‌idence in the
government. Non-conf‌idence motions are described in Chapter 6. It suff‌ices
to note here that if a no conf‌idence motion is carried in the Commons, the
government falls. In the 40th minority Parliament, the opposition parties
together controlled a majority of votes in the Commons, and voting in a block,
they would have been sure to succeed in the no conf‌idence motion. Since
Parliament had only recently reconvened after the fall 2008 election, they ob-
viously anticipated that, should the government fall, the coalition would f‌irst
be invited to form a new government before the Governor General opted to
dissolve Parliament and return to the polls. As discussed further below, this
assessment of constitutional convention in Canada was reasonable.
4 Constitution Act, 1867, above note 2, s. 38.
5 Commons, Précis of Procedure, above note 1 at 6.
6 Canada Elections Act, S.C. 2000, c. 9, Sch. 1.
7 Commons, Précis of Procedure, above note 1 at 90.
8 Charter, s. 5, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act
1982 (U.K.), 1982, c. 11.

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