Separation of Powers

• Author: Rob Walsh
• Pages: 31-37

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cHaPter four

Separation of Powers

here are three branches in the parliamentary system of government: legislative (House of Commons and Senate), executive (the Government and Public Service), and judicial (the courts). hey are not completely separate from one another, however, as in the American congressional system of government.
he doctrine of separation of powers was irst conceived by the French writer Montesquieu (1689–1755) who felt that the three basic powers of the State, namely, to legislate, to administer, and to adjudicate, should be in separate hands, otherwise oicials with two or more of these powers would abuse their powers at the expense of the private citizen. One might foresee the making of possibly unjust laws or laws that, seemingly fair, are given self-serving interpretations by the State authority and/or are selectively administered or enforced according to the preferences of the State authority. An individual citizen who was the object of such actions would have nowhere to go to complain if the courts were not separate from the executive.
he Constitution Act, 1867,¹ irst enacted in England as the British North America Act, 1867,² airmed that the founding Provinces desired to have a government for the new Dominion of Canada that was “similar in principle” to the system of government established

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THE HOUSE OF COMMONS OF CANADA

in England. hus, Canada’s constitutional structure is generally based on the British parliamentary system of government as it had evolved in Britain up to 1867, that is, with three branches of government — the executive, the courts, and the legislative chambers — constitutionally, that is, legally independent of each other, though not completely independent.
he constitutional tradition that ministers of the Government be members of the House and enjoy the conidence of the House relects a fusion of the Executive Branch and the Legislative Branch in the parliamentary system that is inconsistent with the doctrine of separation of powers as Montesquieu conceived it, such as in the American system where the president is head of the Executive Branch and the members of the Cabinet do not sit in the House of Representatives. he American government does not need to enjoy the conidence of the House of Representatives to stay in oice. In comparison, the Canadian parliamentary system of government does not have a complete separation of powers between the Executive Branch and the Legislative Branch.

Financial Powers of the House

While the House of Commons and the Senate both have the power to legislate generally, the House has priority in two legislative areas: taxation and appropriations (spending by the Government). hese matters must be legislated in the House before they may be considered by the Senate. he House, not the Senate, also has the non-legislative power to vote non-conidence in the Government, which would require the Government to resign (and probably bring on a national election).
he House’s power to impose taxation warrants closer consideration. First, the House cannot initiate a taxation measure. All bills imposing a tax (or increasing an existing tax) must be proposed by the Government...