Parliament, Democracy and the Legislative Process

• Author: Craig Forcese/Aaron Freeman
• Pages: 297-351

Parliament,

Democracy

and

the

Legislative

Process

In our

first

several chapters,

we

have focused

on the

means

by

which

offi-

cials

in our

democratic government

are

selected. Beginning with

this

chap-

ter,

we

shift

focus,

examining

rules

and

procedures

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,

and is

therefore

a

principal (though

far

from

the

exclusive) responsibility

of

Cana-

da'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

"delegat-

ed

legislation," usually regulations. Legislating

is, in

other words,

a

joint

executive/legislative branch enterprise.

In

this chapter,

we

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.

Running

through

this

chapter

is one of our key

themes:

the

relationship/tension between

the

executive

and

legislative

branches

of

government.

297

5

298 THE

LAWS

OF

GOVERNMENT

A. THE

PARLIAMENTARY

LEGISLATIVE

ENTERPRISE

In

this work,

we

cannot canvass

the

complex

and

lengthy rules

of

proce-

dure

that govern

the

minutiae

of

parliamentary law-making. There

are

already

many comprehensive, technical resources

in

this

area.1

Instead,

we

do

two

things. First,

we

provide

an

overview

of the

Parliament

of

Canada,

discussing

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

very

succinct overview

of the

legislative process.

Our

focus throughout

this

discussion

is on the

House

of

Commons,

though

we

raise issues related

to the

senate

from

time

to

time.

i.

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

materi-

al

in

Appendix

2

demonstrates,

the

vast

majority

of

parliamentary legisla-

tion 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,

2867

empowers

the

Governor

General

"from

Time

to

Time,

in the

Queen's Name,

by

Instru-

ment

under

the

Great Seal

of

Canada, [to]

summon

and

call together

the

See,

e.g.,

Robert

Marleau

and

Camille

Montpetit,

House

of

Commons

Procedure

and

Practice

(Ottawa:

House

of

Commons,

2000);

Canada,

House

of

Commons,

Beauch-

esne's

Rules

and

Forms

of

the

House

of

Commons

of

Canada,

6th ed.

(Toronto:

Carswell,

1989);

Canada,

House

of

Commons,

Precis

of

Procedure

(2003),

available

at

www.parl.gc.ca/information/about/process/house/precis/Precis-e.pdf;

Library

of

Par-

liament,

The

Legislative

Process,

BP-i5iE

(1989).

Constitution

Act,

i86j,

s.

17.

Indeed,

over

time

the

senate

is

becoming

less

and

less

important

as a

source

of

legis-

lation.

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.,

Pro-

tecting

Canadian

Democracy:

The

Senate

You

Never

Knew

(Kingston,

ON:

McGill-

Queen's

University

Press,

2003).

I

2

3

Parliament,

Democracy

and the

Legislative

Process

299

House

of

Commons."4

This power

is

greatly constrained

by

convention,

and now the

Charter.

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

Indeed, this

convention

is

codified

in the

Writ

of

Election, enacted

in the

Canada

Elec-

tions

Act.

This

writ empowers

the

monarch

(and

thus

the

Governor Gener-

al)

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, separated

by a

prorogation.

A

prorogation

is

again

the

prerogative

of

the

Governor General, acting

on the

advice

of the

prime

minister.7

A

pro-

rogation

(or a

dissolution

of

Parliament, pending

an

election)

may not

endure indefinitely, however.

The

Canadian

Charter

of

Rights

and

Freedoms

specifies

that Parliament must

sit at

least once every twelve

months.8

Dissolution

of

Parliament

Subject

to an

exception

in

times

of

emergency

discussed

in

chapter

io,9

a

House

of

Commons

may

endure

no

longer than

five

years.10

In a

reversal

of

traditional United Kingdom practice, Parliament

is not

dissolved

as a

matter

of

course

by the

death

of a

reigning

monarch."

Thus, unless termi-

nated automatically

on

expiry

of its

maximum,

five-year

life,

the

Governor

General

dissolves Parliament.

In

dissolving Parliament,

the

Governor General acts almost always

at a

time

of the

prime minister's

choosing.12

Indeed,

the

timing

of a

dissolution

is

generally considered

the

personal prerogative

of the

prime

minister,13

to

the

point

of

being

a

constitutional

convention.

Dissolution prompts

a new

electoral cycle, governed

by the

Canada

Elections

Act and

discussed

in

chapter

3. In the

federal Parliament,

there

are

no

fixed

election dates. This

fact

usually guarantees

the

prime

minister

substantial discretion

to

determine

the

timing

of

dissolution within

the

4

Constitution Act, 1867,

s. 38.

5

Precis

of

Procedure

at 6.

6

Canada

Elections

Act, Schedule

i.

7

Precis

of

Procedure

at 90.

8

Charter,

s. 5.

9 See ch.

io.

10

See

Charter,

s. 4;

Constitution Act, 1867,

s. 50.

11

Parliament

of

Canada Act,

s. 2.

12

Precis

of

Procedure

at

91.

13

Privy Council

minute,

P.C.

3374

(25

Oct.

1935).